— I. The referee found that when the loan was made, and as an inducement to it, the defendant, E. M. Griffith, promised that in a few days thereafter he would execute and deliver to plaintiff a mortgage upon the land in question. It is insisted by appellant that this finding is not supported by the evidence. We deem it unnecessary to inquire into this question of fact. It is not disputed that the defendant, E. M. Griffith, is indebted to plaintiff in the amount for which judgment was rendered. If the deed to Gosley was intended merely as security, and Griffith still had an equity in the land, the judgment recovered by plaintiff could be enforced against that equity, whether there was any agreement to execute the mortgage or not.
II. The evidence shows clearly that the conveyance to Gosley was not intended to operate as an absolute conveyance, but that it was intended merely as security for certain liabilities assumed by Gosley on behalf of the plaintiff. It, therefore, is to be treated as a mortgage, and the Griffith’s have still an equity in the lands which may be subjected to the payment of their debts. The referee found that the defendant, Gosley, had a lien upon the land for $350, and, from a careful examination of the testimony, we are satisfied that the finding is correct.
III. After the commencement of the suit, Gosley conveyed the land to one Holland. It is claimed that he cannot be affected by the decree. Holland was a purchaser pendente lite, and he can acquire no interest as against the plaintiff. Code, § 2628.
IV. It is claimed that certain evidence, rejected by the referee, shows that Griffith had conveyed his equity in the property to Frank M. Davis, and that Griffith had no interest in the property which could be subjected to .the payment of plaintiff’s demand. This evidence was not pertinent to any issue made in the case. If Davis has really an interest in the property, he will not be affected by these proceedings to which he is not a party.
The defendant, Gosley, will have ninety days from the entering of the de*756cree in this court within which to redeem, as designated in the decree of the court below. The judgment is
Affirmed.