Affirmed January 17, 1922.
On the Merits.
(203 Pac. 580.)
For appellant there was a brief over the names of Mr. A. G. Thompson and Mr. George P. Topping, with an oral argument by Mr. Thompson.
For respondents there was a brief over, the names of Mr. Stanley Peddler, Mr. A. H. Derbyshire and Mr. A. S. Hammond, with oral arguments by Mr. Peddler and Mr. Derbyshire.
Department 1.
BURNETT, C. J.— According to the admitted allegations of the pleadings, the plaintiff, being indebted to the assignor of the Simpson Estate Company in the sum of $29,695, joined with his wife in a mortgage on certain lands in Coos County to secure a note for that amount. Afterwards, having become the owner of the note and mortgage, the defendant Simpson Estate Company began a suit to foreclose *388that mortgage. There seem to have been negotiations for a settlement of the snit, with the result that on June 24, 1918, the plaintiff and his wife joined in a deed, absolute on its face, by which they conveyed all of the lands in fee to the Simpson Estate Company. Thus far the parties agree. From thenceforward there is an effort on the part of the plaintiff to show by parol that this deed although absolute on its face was a mortgage given to secure the indebtedness already mentioned. Further, it is said that the time for repayment of the debt was extended to December 31, 1919, and that afterwards the defendant Simpson Estate Company extended the time until February 1, 1920, but that notwithstanding the agreement, the defendant company conveyed the property to the defendant Bones, who took with notice of all the plaintiff’s right to pay the debt and redeem the property. The allegations of the complaint covering the extension of time and the right to redeem, are denied by the answers. The contention of the defendants is that the plaintiff and his wife conveyed the property, as stated, in satisfaction of the debt, in consideration of which the defendant company released and discharged the indebtedness.
There appears in evidence the deed from the plaintiff and his wife to the Simpson Estate Company, conveying the property to the latter, as stated, containing the covenant of the present plaintiff to warrant and defend the property against all encumbrances, except unpaid taxes and the mortgage for $29,695, dated May 27, 1915. At the same time, as part of the same transaction, the defendant Simpson Estate Company executed and delivered to the plaintiff an option in writing, giving to the plaintiff the sole right and choice to buy the real property in*389volved upon the payment by the plaintiff to the Simpson Estate Company on or prior to December 31, 1919, the sum of $33,500. It is stated in the option that one of the considerations for the granting of the same is the execution of a lease of the premises from the Simpson Estate Company to Carter and a payment of the rent reserved therein. A copy of the lease also appears in the record, and finally this document, executed at the same time, is admitted by the plaintiff to have been signed by himself and his wife:
“Know all men by these presents: That we, Cecil C. Carter and Alta E. Carter, of Coos County, State of Oregon, for and in consideration of the sum of one dollar, lawful money of the United States of America, to us in hand paid by Simpson Estate Company, a corporation, organized and existing under and by virtue of the laws of the State of California, have remised, released and forever discharged, and by these presents do, for ourselves, our heirs, executors and administrators, release and forever discharge the said Simpson Estate Company and also Simpson Lumber Company, a corporation, organized under the laws of the State of California, and each of them, from all claims and demands of every kind, nature and character, which against the said Simpson Estate Company or the said Simpson Lumber Company, or either of them, we or either of us ever had or now have,' for, upon or by reason of any' matter, cause or thing whatsoever, from the beginning of the world to the date of'these presents.”
In its tenderness for debtors, equity has gone to great lengths and has firmly established the doctrine that a deed absolute on its face may be shown by parol to be really and truly a mortgage to secure the payment of a debt from the grantor to the grantee. In other words, for that purpose it is competent to prove by parol a defeasance of a prima facie abso*390lute deed. On the other hand, it is equally competent for a mortgagor to convey to the mortgagee any real property in payment and discharge of the mortgage debt. In the very nature of the term, there can be no mortgage unless there be also a debt to be secured by such mortgage, and courts have laid hold of very slight circumstances to show that the debt was in existence and in force after the absolute conveyance. In this instance the plaintiff freely admits the execution of all of the documents herein mentioned, and their delivery to the defendant. He was asked this question:
“Did you receive back your note and mortgage?
“A. That is a matter that I don’t have any remembrance of getting the mortgage back.
“Q. Did you receive back that note?
“A. The attorney might have gotten it, but I do not remember about that.
“Q. Do you know whether or not the note was released to youi attorneys?
“A. No, I do not.
“Q. Do you know whether the mortgage was released of record?
“A. I think the record shows that it was released later on.”
He testifies that he paid nothing after the lease was given except the rent. He also testifies that he made some improvements on the land with the consent of the Simpson Estate Company, the expense of which was deducted from the rent. Although he says his attorney did not turn over to him any papers in regard to releasing the mortgage, when asked if the attorney ever turned over to him any note, he answered, “No, sir; not at that time.” On the other hand, the attorney who was conducting the foreclosure suit on behalf of the Simpson Estate Company testi*391fies in substance that in pursuance of negotiations to settle the matter, at the request of the attorney for defendant there, plaintiff here, he sent the satisfaction of the mortgage and the note to a bank at Myrtle Point as a depositary, to be delivered to the other attorney on receipt of the first installment of the rent under the lease, which money was to be forwarded to the witness, and that he received the amount after-wards.
The effect of this testimony is, that the defendant company gave np the note and mortgage. It has no means of enforcing the claim against the plaintiff, having executed and delivered the satisfaction of the mortgage and given np the note. Another circumstance indicating that the instrument denominated an option was really what it purported on its face to be, is that at the time of the execution of the option to this plaintiff to buy the land at $33,500, there was due on the note and mortgage the sum of $35,178.68, computing the interest at 6 per cent per annum on the original note from its date until the date of the option. All of these circumstances indicate the extinction of the debt, so that the company cannot enforce the same against the plaintiff. As to the further extension of the time to February 1, 1920, the plaintiff himself testifies that before the expiration of the option on December 31, 1919, he endeavored to get a further extension of time, but that in each instance he was refused by the defendant company’s representatives.
6, 7. In another aspect of the case, although it is permissible to establish by parol a defeasance of the deed, or, in other words, to show that it was a mortgage, yet when the parties themselves put into writing the means by which the effect of the deed may be *392obviated and tbe title returned to tbe grantor therein, those writings supersede any oral understanding. In other words, they contain the terms of the contract, the effect of which cannot be avoided, unless the validity of those very instruments is attacked for fraud or mistake: Or. L., § 713. No question is made in this case but that the deed, the option, the lease and the above quoted release were all executed by the parties, as appears on the face of those instruments. No fraud or mistake is intimated in the pleadings and we can do naught else than enforce according to their legal effect the writings which the parties have made. The testimony that the land is much more valuable than what would be due upon the original indebtedness appeals strongly to anyone reading the record, but we cannot change the law. In short, it is a case where the debtor has conveyed the property in satisfaction of his debt,, and the creditor has discharged the debt. The release given by the plaintiff and his wife is sweeping in its terms. Bead in connection with the other documents executed at the same time and as a part of the same transaction, it unmistakably discharges the Simpson Estate Company and its assignor from all claim which the plaintiff had against either of them to redeem the property.
The record has been carefully read and reread, with a view of ascertaining any basis for- the plaintiff’s relief, but none can legally be found. The decree must be affirmed.
Affirmed. Objections to Cost Bill Overruled.
McBride, Harris and Band, JJ., concur.