delivered the opinion of the Court:
Testing the complainant’s rights by the averments of her bill, what were her relations to the west eighty feet of lot 29 after conveying it to her brother, William W. Strong, under the circumstances alleged? Some confusion on this subject; seems to exist, arising, apparently, from a want of a well defined theory as to her rights on the part of the pleader. Some expressions of the bill seem, though not very distinctly, to treat her grantee as a mere trustee holding the legal title for her benefit, while others assume for her the relation of mortgagee-, under a deed absolute on its face, but really intended as a-mortgage. The general scope of the bill, however, altogether excludes both of these relations. The case made by the bill is ■ neither that of a cestui que trust nor of a mortgagee. The material allegations are, in substance, that her brother, being in financial distress which made it necessary for him to sell his interest in the two lots, and finding it impracticable to do so-unless he could sell the whole of the two lots together, applied to her to convey to him her part of lot 29; that she was desirous of selling her part of said lot, and that she thereupon conveyed it to her brother for a price or consideration of $2000, to be paid to her by him, of which sum $1000 was to be paid in cash upon the completion of the sale of the lots to Snell, and the payment of the remaining $1000 was to be secured to her by some good and sufficient security to be furnished her by him. This transaction clearly was an absolute sale and conveyance of the property for a definite consideration to be paid by the vendee to the vendor. It is true the consideration was never paid, but that circumstance could not convert an absolute conveyance into a mortgage, nor was it sufficient to change the estate of her vendee into a mere naked trust. It is clear that her interest in the premises conveyed, even between her and her grantee, was that of a vendor’s lien, and nothing more.
The complainant is seeking by her bill to have her vendor’s lien satisfied out of the proceeds of the sale of said lots by Carpenter, who obtained title thereto by conveyance from the complainant’s grantee. She bases her right to relief upon the allegation, 1, that Carpenter took title with notice of her equities, and, 2, that the deed from Strong to Carpenter, though absolute on its face, was intended for and in fact was a mortgage, and that by sale of the premises to Snell, Carpenter had realized a sufficient sum to satisfy his mortgage and leave a surplus to be applied upon the complainant’s lien.
We think there was a failure to prove that Carpenter, at the time of the conveyance to him, had notice of the complainant’s equities. He positively denies having had any knowledge or notice on that subject, and there seems to be no witness who testifies to the contrary, and no facts' are shown which are clearly sufficient to charge him with notice. His chain of title of course notified him that the complainant had been the owner of a part of the premises conveyed to him, but following that -was an absolute conveyance from her to his grantor, and after finding that such conveyance had been made, there was nothing upon the face of his chain of title making it his duty to inquire further. Especially was this so in view of the fact that the deed from the complainant to his grantor contained an express acknowledgment of the receipt of the purchase money and a clause forever releasing and discharging her grantee therefrom.
But as we are inclined to view the case, it does not seem to be very material whether Carpenter had notice that the complainant had not been paid for her lot or not. By the admissions of her bill it appears that she conveyed her part of lot 29 for the purpose of placing it in the power of Strong to either sell or mortgage both lots for the purpose of raising money for his own use. In case of his obtaining a temporary loan from Carpenter before consummating the sale to Snell, it was not in the contemplation of the parties that she should receive any part of the money borrowed to apply upon her purchase money. And in case of an absolute sale, it was manifestly not their intention that her lien for the purchase money should have priority over the title conveyed. Such being the case, she is clearly estopped to set up her vendor’s lien as against the title of Strong’s vendee or mortgagee. On the other hand, if the deed to Carpenter was only a mortgage, she is entitled to enforce her vendor’s lien against the equity of redemption, irrespective of whether Carpenter took with notice or not. 1 Jones on Mortgages, sec. 200.
It is thus apparent that the complainant’s right to relief must depend altogether upon whether the deed from Strong to Carpenter was intended as an absolute conveyance or as a mere mortgage to secure a loan of money. This presents a question of fact upon which the evidence is to a large degree conflicting. The deed upon its face is absolute, and the burden is on the complainant to prove by clear and satisfactory evidence that it was in fact a mortgage. This court has often held that where a conveyance is in form absolute, in order to change its character to that of a mortgage, the proof must clearly and satisfactorily show that such was the contract and intent of the parties. Bailey v. Bailey, 115 Ill. 551; Darst v. Murphy, 119 id. 345; Workman v. Greening, 115 id. 477; Clark v. Finlon, 90 id. 246; Bartling v. Brasuhn, 102 id. 441; Knowles v. Knowles, 86 id. 1; Hartnett v. Ball, 22 id. 43.
We have patiently considered the evidence, with the aid of such light as counsel have been able to throw upon it, and are disposed to concur with the conclusions reached by the circuit judge and the Appellate Court. So long as we agree with those courts, an extended discussion of the evidence becomes unnecessary. The testimony of Carpenter is positive and unequivocal that the deed was intended to be an absolute conveyance and not a mortgage, and that the transaction between him and Strong was a purchase and sale of the lots and not a loan of money. Strong himself does not claim and never has claimed an equity of redemption in said lots since the execution of the deed. In a proceeding in the nature of a creditor’s bill brought against him some time after the deed was executed, he seems to have based his defense, so far as said lots were concerned, upon an allegation that he had no equitable interest in them. Much of the evidence adduced on behalf of the complainant is equivocal in its character and leads to no certain oi satisfactory conclusion. It is sufficient to say, that the entire evidence taken together, viewing it in the light most favorable for the complainant, leaves the mind in serious doubt as to what was the real transaction. It thus falls entirely short of the measure of proof required by the decisions of this court in order to hold a deed which on its face is an absolute conveyance, to be a mortgage. We are of the opinion that the decree is warranted by the evidence, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.