(concurring specially). The crucial question in this case is to determine whether the deed was executed upon a sale made, or, for purposes of security. As stated in Sherwin v. American Loan & Invest. Co. 42 N. H. 389, 173 N. W. 760, in transactions of this kind, the essential thing, in equity, is to determine the real intention of the parties. In so doing, equity, presuming that all parties intended to act in good faith, will view all of the surrounding circumstances in order to determine this real legal intention of the parties. In ascertaining such intention room is afforded for the application of the maxim that equity regards the substance rather than the form. Although the intention of the parties must be disclosed by clear, convincing, and satisfactory testimony in order to overcome the presumption accorded to a solemn deed absolute on its face, nevertheless, if such’ intention is so shown by a consideration of the substance of the transaction, its form then becomes immaterial.
This is a case involving not fraud of the parties, but rather the question of determining their real legal intentions upon the transaction had. Ofttimes it is by indirections that we find directions out. A careful survey of the testimony in this case discloses that the plaintiff never had any real legal intention to sell the land involved through the deed *271executed; that the bank, furthermore, took this deed not because it wanted to buy the land, but because of the financial embarrassment in which the plaintiff was found. Throughout the testimony the bank continuously asserted an intent that it wanted only its money due it from the plaintiff upon both its real estate and chattel securities. That it caused this deed to be made in order to save the plaintiff from the expenses of a foreclosure, and, further, in order that it might secure to itself the money due. At the time the deed was executed, the plaintiff was delinquent in interest payments upon existing real estate mortgages; he was then seeking without avail to place a loan through Federal land agencies upon the land, and the bank then was in a position, by reason of its inferior real estate securities, where it was required, in order to preserve its lien, to assume, or to make arrangements to take care of, prior liens upon the premises affected. The foreclosure of these prior liens would lessen the security of the bank by reason of the expenses involved. At the time when the deed was executed, there was no stated consideration computed as the value of the land, and for which a stated amount should be paid by the bank as a consideration for the sale. In this regard, the evidence in favor of the bank, in any event, amounts only to a showing that the land involved was not worth any more than the indebtedness secured against it, and that consequently such indebtedness represented the consideration for the value of the land.
This statement, as computed by the bank, gave an aggregate sum of $14,450.19. It included principal and interest secured by liens prior to the bank’s mortgage, also taxes and unsecured claims of one Etawkinson for $38.15, and of the Lichty Merc. Company for $150.85. Hawkinson and Lichty were grantees in the deed made by the plaintiff, and were officers of the bank. The indebtedness owing by the plaintiff to the bank, as computed by the bank, then amoxxnted to $6,018.94. It was secured by a mortgage upon the land involved and also a mortgage upon plaintiff’s chattels. In this regard it is to be noted that the bank, in this transaction, proceeded first to consider the security .of both plaintiff’s real estate and chattels; it then made an apportionment of this indebtedness, allotting $12,241.64 upon the land, and the balance, $2,019.60, upon the chattels. This, accordingly, divided the indebtedness owing by the plaintiff to the bank, a portion thereof upon the land *272and the balance as stated, secured by chattel mortgages already existing. At this time neither a new note nor new chattel mortgage was taken by the bank, but all of the outstanding notes, together with the chattel mortgages executed in securing thereof, were held by the bank, as it claims, as collateral to the payment of this indebtedness then resulting and existing upon the chattel security. It is evident that, as a result of this transaction, the security of the bank was strengthened through giving to' it a larger measure of .title and an equitable lien upon the land, as well as upon plaintiff’s chattels so mortgaged, including, further, the theretofore unsecured claims of Hawkinson and the Lichty Mere. Company. It gave to the bank the opportunity to negotiate concerning the prior liens, to have a measure of direction in the farming operations of the land concerned, and to receive an application yearly of the crop proceeds, thus better insuring payment and reduction of its indebtedness. It is evident further, from the record, that at the time of this transaction the plaintiff was not relieved or released by express acts of the parties concerning any of the indebtedness then owing by him to the bank; no note was canceled; no mortgage was released. The- claim of the bank that this indebtedness was held as collateral by reason of its connection with the chattel security, and in order that it might preserve the status of such chattel security, and its lien thereupon, does not answer the fact that the transaction in its legal essence still remained a continued indebtedness on the part of the plaintiff towards the bank for the full amount existing prior to the execution of the deed.
The earmarks of the transaction indicate, further, the real thought of the parties; namely, that the bank should be better secured, and the plaintiff should be better afforded an opportunity to try and work out from his financial embarrassment. The execution of the option contract, practically simultaneously given, by two of the officers of the bank in whose name the title to the land was taken, evidences further an indication to give to the plaintiff and to preserve to him his equity in the land over and above the indebtedness owing by the plaintiff and secured thereon. This negatives an intent to secure, through the execution of a deed, the equity of redemption possessed by the plaintiff. The fact that leases were executed from year to year by the officers and the bank to this plaintiff upon this land did not serve to foreclose this equity *273of redemption possessed by the plaintiff, or, in connection with the execution of the deed, to evidence a direct sale of the premises. It rather served to disclose a legal intent on the part of the bank to secure the largest measure of control possible in order to preserve to the bank better opportunity for realizing upon its indebtedness, and still permit to the plaintiff full opportunity to make redemption and relieve himself from financial embarrassment. This real legal intent of the parties is further shown by a letter written by the cashier of the bank nearly a year after the execution of this deed, wherein it was stated: “We paid McLaughlin the $1,800 second mortgage, and renewed the $3,200 deed, so you will not have to make a loan with the Federal Bank, now that we are taking the land over.” Assuredly, this statement made by the cashier of a bank in a letter, in connection with a statement containing crop report and crop division for the year 1917, discloses affirmatively a legal intent on .the part of the bank to recognize an interest and a right on the part of the plaintiff in the land involved. Manifestly, if a sale of the premises had been made, in fact, at the time of the execution of the deed and the lease, no such statement would have been made by the bank cashier in such letter. Furthermore, if the transaction -was, at the time of the execution of the deed, a transaction for purposes of security, it so continued to remain. It is further to be noted that the sale by the bank in September, 1919, of these premises pursuant to a farm contract, was upon a consideration of $31 per acre, to be paid through one promissory note of $1,500 and another promissory note of over $14,000, payable by one half of the crops raised each year on such premises, with interest at 6 per cent per annum. In this transaction, the evidence discloses that a commission of $3 per acre was allowed, and was to be paid to the cashier of the bank, and that the bank’s security then was sought to be changed from an indebtedness on the part of the plaintiff that paid them about 10 per cent per annum, with direct control over the crop proceeds each year, into a form of indebtedness that drew only 6 per cent per annum, and an agreement to turn over one half the crops until such indebtedness was paid. The good faith of such transaction might well be questioned if the best interests of the bank were being considered. TJpon a careful survey of the entire record, and for the best in*274tercsts of both tbe plaintiff and tbe bank, upon principles of equitable consideration, we are of the opinion tbat tbis transaction was and should be deemed a transaction for purposes of security, and therefore a. mortgage.
It is accordingly ordered tbat tbe judgment be reversed and remanded to tbe trial court, for further proceedings according to law, pursuant to this opinion, with costs to tbe appellant.
Biedzbbb, J., concurs.