By tha Gowri,
Cole J.The plaintiff in error, to make out his chain of title in the court below, among other deeds, offered in evidence a quit-claim deed from John L. B. Mines and wife, executed and acknowledged by Samuel W. Beall, their attorney, and bearing date January 26th, 1854, which was followed up by the introduction of a power of attorney under seal from Mines to Beall dated December 15, 1848. The defendant in error, upon his part, to defeat a recovery, gave in evidence a warranty deed of the same premises from Mines to his immediate grantor, George N. Lyman, which was also executed by Beall, as attorney, and bearing date December 18th, 1848. The defendant claimed under a quit-claim deed from Lyman to him, datedJulyl4,1852, which deed contained a provision that the same was subject to any and all equitable claims which Mines had upon the premises by virtue of a contract or bond bearing date December 18th, 1848, executed by Lyman, and by which he obligated himself to re-convey the premises to Mines, upon condition that Mines or his assigns paid him, Lyman, the sum of $170 on the 1st of April, 1849. To meet this case, the plaintiff in error produced the bond or contract referred to in the deed, and after proving it by the subscribing witness, proposed offering it in evidence, but it was objected to on several grounds and ruled out by the court. He also proposed proving by parol testimony, the real consideration of the deed from Mines to Lyman, and that it was considerably less than the value of the premises at the *39time of conveyance; tbat Beall, as attorney of Mines, bad executed tbe deed to Lyman to secure tbe payment of bis own individual debt; tbat it was intended by tbe parties to be nothing but a mortgage, and tbat tbe defendant bad notice of tbis fact at tbe time be took bis quit-claim from Lyman; all of wbicb testimony was objected to and ruled out by tbe court.
We do not deem it necessary to enter upon an examination of many of tbe questions raised by counsel in tbe argument of tbis cause. A few observations upon one or two elementary priciples of law will dispose of sucb of tbem as it is essential to consider.
It is to be remarked tbat it is a very familiar principle, tbat in an action of ejectment tbe plaintiff must recover upon tbe strength of bis own title, and not upon the weakness of tbat of bis adversary. Adams on Ejt., 33.. He must show a perfect legal title to tbe disputed premises. Now if we look into tbe plaintiff’s, case we find him producing in evidence, and relying upon it as a link in bis chain of title, a deed from Mines, who was the source of title to both parties; wbicb deed bore date January 26th, 1854, while it appeared from tbe defendant’s case, tbat all tbe title wbicb Mines bad in tbe premises bad been conveyed to Lyman in December, 1848, and subsequently bad become vested in tbe defendant. But it was insisted tbat tbe deed from Mines to Lyman, though absolute on its face, was but a mortgage, and it was contended tbat it was competent to show tbat sucb was tbe character of tbat conveyance, as well from tbe written contract offered in evidence as parol testimony produced at tbe trial. Admitting tbat tbe true relation between tbe parties was a mortgage relation, tbe plaintiff having become tbe purchaser of tbe equity of redemption, and tbe defendant having acquired tbe mortgage interest of Lyman in tbe premises, and it is then to be considered whether tbe plaintiff could recover in tbe action against a mortgagee lawfully in possession after condition broken. And we are of tbe opinion tbat be could not. In tbe case of Pbyfe vs. Riley, 15 Wend. 248, it was decided *40that a mortgagee in possession of the mortgaged premises lawfully acquired after condition broken could not be dispossessed in an action of ejectment, and that the revised statutes of that State which contained a provision substantially like Sec. 53, Chap. 106, E. S., did not change the law in this respect. See Hill vs. Payson, 3 Mass., 560; Parsons vs. Wells, 17 Id., 469; Sherman vs. Abbott, 18 Pick., 448; Cutler vs. Lincoln, 3 Cush.; 1 Hill on Mortgages, 325, 326. If it be true that Lyman held these premises originally to secure the payment of $170; we suppose that by his conveyance he transferred his mortgage interest to the defendant. And this debt we presume is a subsisting incumbrance against the property. The plaintiff does not pretend that it has been discharged ; but he seeks to recover possession of the premises without discharging it. We do not think he should be permitted to do this. For if the defendant is turned out of possession because he is in as a mere mortagee, he will be put to the trouble and expense of foreclosing his mortgage, and perhaps put to the necessity of taking legal steps to regain possession. It is not the policy of the law to encourage such litigation. And substantial justice will be better subserved by permitting the mortgagee to retain the possession which he has lawfully acquired, until the mortgagor, or those claiming under him, shall institute proceedings for the purpose of redemption. It therefore becomes unnecessary to consider the question whether in an action at law it is competent to show by such testimony as was offered in this case, that a deed, absolute upon its face, was intended as a mortgage. It has already been decided by this court, in Eogan vs. Walker et al, 1 Wis. R., 527, that parol proof is admissable in equity, to show that an absolute deed was intended only to secure the payment of money and was, therefore, an equitable mortgage, to which the equity of redemption will attach; but I am not aware that it has been decided in this State that, at law, an absolute deed can be turned into a mortgage by parol evidence. There is some conflict in the cases upon this point, but it is not necessary to examine them. See Hodges vs. The Tennessee Marine and Fire
*41Insurance Company; 4 Selden, 417; Webb vs. Rice; 6 Hill, 221; same case in 1 Hill, 606; Taylor vs. Baldwin et al; 10 Barb. S. C. R. 582 ; Cook vs. Eaton, 16 Id. 439, and cases cited by counsel and court in these authorities. But if the evidence offered had been admitted, and the point clearly established that the deed from Mines to Lyman was a mortgage, according to our view of the case the result could not have been different, and therefore no injustice was done to the plaintiff, even if the ruling of the court was erroneous.
Judgment of the court is affirmed with costs.