It is competent for either party to a con veyance to prove that it was in fact a mort gage; Kellogg v. Northrup, 115 Mich. 327, 73 N. W. 230. It is a question of intention, and if the mortgage was meant to be a se curity at the time of its execution, though absolute in its form, it is a mortgage ; Cobb v. Day, 106 Mo. 278, 17 S. W. 323 ; Weiseham v. Hocker, 7 Okl. 250, 54 Pac. 464 ; Howat v. Howat, 101 Ill. App. 158 ; and the intention of the parties, which is the infaldele test, is to be gathered from all surrounding circum stances ; Miller v. Mule; 101 Md. 600, 61 AU. 210; Day v. Davis, 101 Md. 260, 61 Atl. 576; Reavis v. Reavis, 103 Fed. 813; Sand ers v. Ayres, 63 Neb. 271, 88 N. W. 526. The right to treat a deed, intended as a mortgage, as such,- is mutual, and the grantee cannot be compelled by other creditors to treat it as a deed ; Andrus v. Burke, 61 N. J. Eq. 297, 48 Atl. 228.
A valid mortgage may be given by way of indemnity, as to secure a surety from liabil ity; -Simmons Hardware Co. v. Thomas, 147 Ind. 313, 46 N. E. 645 ; Harlan County v. Whitney, 65 Neb. 105, 90 N. W. 993, 101 Sm. St. Rep. 610; or an indorser ; Staver,s v. Philbrick, 6S N. H. 379, 36 AU. 16. An in debtedness of several creditors may be secur ed by a single mortgage ; Rice Bros. v. Da vis, & Davis, 99 Mo. App. 636, 74 S. W. 431; and a mortgage need not be made directly to the beneficiary, but may be made to a third person as well as • to a creditor ;; Adams v. Niemann, 46 Mich. 135, 8 N. W. 719.
The mortgagor has, in law, technically speaking, a mere tenancy, subject to the right of the mortgagee to enter immediately, unless restrained by his agreement to the contrary ; Clay v. Wren, 34 Me. 187; Mc Call v. Lenox, 9 S. & R. (Pa.) 302 ; Jackson v. Bronson, 19 Johns. (N. Y.) 325 ; 5 Bingh. 421. In equity, the mortgage is held a mere security for the debt, and is only a chattel interest ; and until a decree of foreclosure, the mortgagor is regarded as the real own er ; 2 J. & W. 190; Huntington v. Smith, 4 Conn. 235 ; Ford v. Philpot, 5 Harr. & J. (Md.) 312 ; Eaton v. Whiting, 3 Pick. (Mass.) 484. Both in law and equity a mortgage is held to be only a chattel interest; City of Davenport v. R. Co., 12 Ia. 539. It has been held frequently that the legal fee is in the mortgagee until default, and an absolute fee afterwards ; Smith v. Johns, 3 Gray (Mass.) 517; City of Norwich v. Hubbard, 22 Conn. 587; Swartz's Ex'rs v. Leist, 13 Ohio St. 419; but it may be considered as the gen eral rule, in modern practice, that the mort gagor, before entry, is .the legal owner as to third persons and his conveyance is a trans fer of the fee, if the mortgage is afterwards paid; Freeman v. McGaw, Pick. (Mass.) 82.
The mortgagee, at law, is the owner of the land, subject, however, to a defeat of title by performance of the condition, with a right to enter at any time ; Toby v. Reed, 9 Conn.
216 ; Gore v. Jenness, 19 Me. 53. He is, however, accountable for the profits before foreclosure, if in possession ; Stevens v. Payne, 42 Ill. App. 202 ; Morgan v. Morgan, 48 N. J. Eq. 399, 22 Atl. 545.
The different states fluctuate somewhat between the rules of equity and those of law, or, rather, have engrafted the equitable rules upon the legal to an unequal extent ; Wilson v. Shoenberger's Ex'rs, 31 Pa. 295; Ragland v. Justices of Inferior Court, 10 Ga. 65 ; Bryan v. Butts, 27 Barb. (N. 503 ; Dougherty v. Randall, 3 Mich. 581; State v. Laval, 4 McCord (S. C.) 336 ; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655.
If, after a mortgage of land in. fee, the mortgagor remains in possession and grants a lease under the English Conveyancing Act of 1881, the mortgagee has the immediate freehold in reversion expectant on the term so granted by the lease, for it passed to him under the grant contained in the mortgage deed ; the lease was goad as against the mortgagee but he could enforce its provi sionp and collect the rent or recover it ; 22 Q. B. D. 70 ; and in such case the mortgagor has no power to accept a surrender of the lease without the concurrence of the mort gagee; 1 K. B. 125. Section 18 of the Conveyancing Act of 1881, under which the two cases last cited arose, gives a mortgagor in possession the power to lease as against every incumbrancer, and a like power to a mortgagee in possession.
Case lies by a mortgagor for injuries done the mortgaged premises by a mortgagee not in possession ; Morse v. Whitcher, 64 N. H. 591, 15 Ad. 207. A mortgagee cannot main tain trover for fixtures severed from the mortgaged premises prior to the foreclosure; Rowland v. Sprouls, 66 Hun 635, 21 N. Y. Supp. 895 ; but he may maintain a bill to prevent injury to the mortgaged property ; Clapp v. City of Spokane, 53 Fed. 515.
Mortgages Distinguished from Other Trans actions. Mortgages are to be distinguished from sales with a contract for repurchase. The distinction is important and has been the subject of much litigation; Kelly v. Thompson, 7 Watts (Pa.) 401; but turns rather upon the evidence in each case than upon any general rule of distinction ; Wal lace v. Johnstone, 129 U. S. 58, 9 Sup. Ct. 243, 32 L. Ed. 619 ; and while the intention of the parties determines the question; Sad ler v. Taylor, 49 W. Va. 104, 38 S. E. 583 ; in cases of doubt, equity inclines to construe the transaction to be a mortgage; Snavely v. Pickle, 29 Grat. (Va.) 27; Heath v. Williams, 30 Ind. 495 ; Bennet v. Holt, 2 Yerg. (Tenn.) 6, 24 Am. Dec. 455; Hughes v. Sheaff, 19 Ia. 335.