By the Court,
Lewis, .0. J.:This action is brought by the appellant to obtain a decree declaring a certain absolute deed executed by one Bliss to the defendant to be a mortgage and enforcing the plaintiff’s right of redemption.
The facts giving rise to this action appear to be these: One J. M. Murphy being the owner of a lot in the town of Pioche on or about the 25th day of February, A. D. 1870, made a parol agreement with the plaintiff Leahigh to sell it to him for four hundréd dollars, upon which contract the plaintiff paid one hundred dollars and agreed to pay the balance at the expiration of thirty days; upon the payment of the whole sum Murphy was 'to execute to him a deed of conveyance. Leahigh under this agreement and by the permission of Murphy entered into possession of the lot. On the 25th of March when the remaining three hundred dollars became due, the plaintiff, not having the money, applied to one Bliss for a loan of the amount, agreeing to allow him to take a deed absolute from Murphy as security for the loan so made. These are the facts as they appear from the plaintiff’s complaint; but the defendant alleges that Bliss refused to loan tlie money to plaintiff, bfft agreed to pur*151chase the lot at the amount clue Murphy, and. to give plaintiff the privilege of buying it back within a certain time at a stipulated price. The money was paid to Murphy and a deed of conveyance executed, to Bliss. On the 25th day of May, A. D. 1870, while in possession of .the property and claiming it under the deed, Bliss sold and conveyed it for a valuable consideration to the defendant White, who claims that he is a purchaser in good faith and for a valuable consideration without notice and therefore shoulfi be protected from the claim now set up by the plaintiff.
No motion for new trial was made, and the only question raised in this court is whether the facts found by the jury warrant the judgment rendered by the court dismissing the bill.
We think judgment should have been rendered in accordance with the prayer of the bill and therefore that the court erred in dismissing it. The findings of fact by which we must be governed in determining this case are all in favor of the plaintiff’s claim. It is found that Leahigh entered into the contract with Murphy for the purchase of the lot in question. That the three hundred dollars paid to Murphy on or about the 25th of March, a. D. 1870, was a loan by Bliss to the plaintiff Leahigh. That the deed made by Murphy to Bliss was executed at the request and under the direction of the plaintiff Leahigh, and was given and intended as a security for the loan of the three hundred dollars made by Bliss to the plaintiff. That the defendant White had notice of this transaction between Bliss and Leahigh, and of the latter’s claim to the lot, before he received the conveyance from Bliss. There is one finding which upon first impression would appear to contradict this fact of notice; but it can, we think, be very easily reconciled with the finding (which'.is several times repeated) that White had the notice before his purchase from Bliss was consummated. The finding which appears to be Contradictory of such fact reads thus: “Had defendant any notice of Leahigh’s claim or of the agreement between him and Bliss prior to or at the time of the purchase of the lot ? ” The jurors answer, “ No. ” *152As before stated, it is several times repeated in previous findings that before the consummation of the purchase he had notice of Leahigh’s claim. Now it may be that the jurors understood by the word purchase in the finding above quoted the agreement to purchase; or it may be that they had reference to transactions between Leahigh and Bliss; at least this finding is not so explicit upon the question of notice as to authorize us in saying that it contradicts the others which düre very explicit. It will be seen, this finding does not designate the purchase referred to; whether it was the purchase by Bliss from Murphy, (if it may be so called) or the purchase by White from Bliss, is not stated. With such want of explicitness we are not prepared to disregard the very distinct findings that White had notice of Leahigh’s claim before the completion of his purchase from Bliss.
Why, then, may not the jffaintiff enforce his claim? That he could enforce it against Bliss can scarcely admit of question, for the deed taken by him is found by the jury to be intended as a mortgage, and that is always considered of great importance in determining the question whether an absolute deed is to be held to be a mortgage. It is found that the three hundred dollars advanced by Bliss was a loan to Leahigh, and was not paid as purchase-money. Thus Bliss having a claim against the appellant for the three hundred dollars so loaned and may maintain his action to recover it, and this is proof conclusive that the deed, although absolute, was intended as a mortgage; and thus is presented one of the commonest cases of interference by courts of equity. To prevent fraud and injustice the deed is decreed to be a mortgage as the parties intended it and the privilege of redemption secured. If the action could be maintained against Bliss why not against one who claims from Bliss with full knowledge of the plaintiff’s rights ? There is no doubt but it can. White stands in the exact position of Bliss, with no greater or better right.
That the deed was executed by and the title jjassed directly from Murphy to Bliss, instead of passing from Lea-high, can make no difference. Upon the payment of the *153three hundred dollars Leahigh was entitled to the legal title from Murphy, but instead of receiving it he directed it to be conveyed to Bliss as security for tbe loan. So far as the equitable rights of the parties are concerned they stand in precisely .the same position as if Leahigh had first taken a deed from Murphy and then immediately conveyed to Bliss. Bliss received the legal title to which Leahigh was entitled by his direction, simply as a .security for a loan. Where the difference, so far as Leahigh’s rights are concerned, between such a transaction and tbe receiving by him of tbe legal title' from Murphy and the immediate conveyance of it to Bliss for the purpose of security ? There is none practically or equitably,
The record does not show the amount due from plaintiff to defendant to entitle him to redemption; we can not say therefore that the tender was not sufficient.
Judgment reversed, and the court below directed to render judgment in accordance with tbe prayer of tbe bill.