The true test, determining whether an in strument purporting to convey title in pay ment of a debt be a mortgage or not, is, Was the old debt at that time cancelled and ab solutely paid? Peters Saddlery & Harness Co. v. Schoelkopf & Co., 71 Tex. 418, 9 S. W. 336. In law, the defeasance must be of as high a nature as the conveyance to be de feated ; Lund v. Lund, 1 N. H. 39, 8 Am. Dec. 29; Dey v. Dunham, 2 Johns. Ch. (N. Y.) 182. See infra, subtitle Equitable Mort gage.
When the date of acknowledgment of a mortgage differs from the date of the mort gage, the mortgage, in the absence of any evidence upon the subject, will be presumed to have been delivered when it purports to be acknowledged ; Guaranty Trust Co. v. R. Co., 107 Fed. 311.
What Law Governs. In some states the law of the state in which real estate, is sit uated governs a transfer of the property by mortgage ; Bowdle v. Jencks, 18 S. D. 80, 99 N. W. 98; Gault v. Trust Co.. 100 Ky. 578, 38 S. W. 1065, 18 .12..y. L. Rep. 1038 ; Bramblet v. Lumber Co., 83 S. W. 599, 26 Ky. L. Rep. 1176, judgment modified on rehearing 84 S. W. 545, 27 Ky. L. Rep. 156; Sinclair v. Gun zenhauser (Ind.) 98 N. E. 37. In others the law of the place of the execution of the note or bond and mortgage will be applied, al though the property is located in another state in which the case was tried ; Trower Bros. Co. v. Hamilton, 179 Mo. 205, 77 S. W. 1081; Conradt v. Lepper, 13 Wyo. 473, 81 Pac. 307, 82 Pac. 2 (where the question was in the determination of the validity of the consideration); Lamkin v. Lovell (Ala.) 58 South. 258 (where the debt was payable in the state where executed).
In at least one state there is a statute pro vidiug that mortgages of real estate within its limits shall be construed by its laws as to interest and in all other respects with out regard to the place of performance, and this was held prospective and not to affect a mortgage executed before its passage ; Mu tual Aid Loan & Inv. Co. v. Logan, 55 S. C. 295, 33 S. E. 372; and so it was held as to a statute providing that a mortgage could be created, renewed or extended only wit . the formalities required in the case of a grant of real estate; Wilson v. Pickering, 28 Mont. 435, 72 Pac. 821. A statute making void all mortgages, deeds of trust, etc., of land in more than one county for the payment of a debt, means "void" and not "voidable" ; Den ny v. McCown, 34 Or. 47, 54 Pac. 952, where
it was also held that the invalidity of a mortgage affected by the statute could not be cured by subsequent legislation or con solidation of the counties.
What is a Mortgage and Its Characteris tics, and How it is Proved. The rule as to the admission of parol evidence to estab lish the character of a conveyance as a mort gage varies in the different states. It is safe to state that where the equitable principle admitting parol evidence to vary a writing on the ground of fraud, accident, or mistake can be invoked, it would universally be ap plied. In' some states the rule is still more liberal, and the evidence is admitted more upon the principle of making the intention of the parties govern the transaction. It excluded in any state it would probably be for statutory reasons: Thus in New Hamp shire no deed shall be defeated, nor any qs tate encumbered, unless by condition insert ed in the conveyance ; Benton v. Sumner, 57 N. H. 117. In Georgia a deed absolute in form and supported by possession shall not be shown by parol evidence to be a mort gage, unless fraud be the issue; Mitchell v. Fulliugton, 83 Ga. 303, 9 S. E. 1083 ; Davis v. Davis, 88 Ga. 191, 14 S. E. 194. In Pennsyl vania no defeasance shall have the effect of reducing a deed absolute to a mortgage un less the defeasance is contemporaneous with the deed and is in writing, signed, sealed, acknowledged, and' delivered, and is recorded within sixty days. See Sankey v. Hawley, 118 Pa. 30, 13 Atl. 208. In Colorado, on the other hand, it is provided that parol evi dence may be admitted to convert a deed in to a mortgage ; Townsend v. Petersen, 12 Colo. 491, 21 Pac. 619. 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 such intent ; and evidence which leaves the mind in serious doubt is not sufficient; Strong v. Strong, 126 Ill. 301, 18 N. E. 665; Perdue v. Bell, 83 Ala. 398, 3 South. 698; Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, 1 L. R. A. 240; 20 Can. S. C. R. 548 ; Ganceart v. Hen ry, 98 Cal. 281, 33 Pac. 92; Hayward v. Mayse, 1 App. D. C. 133. See DEFEASANCE.