Spect

Whether a deed absolute in form be a mortgage, is a question of intention to be inferred from all the facts and circumstances of the transaction in which the deed was executed, taken in connection with the conduct of the parties after its execution. In such cases, the central fact to be found is, the existence of an indebtedness at the time of the transaction, and a continuation of the relation of debtor and creditor. If that fact be found, the inference deduciblo from it is, that the deed was not made to transfer the title to the land described in it, but was made for the purpose of securing the debt which the grantor owed to the grantee.

It is essential, say the Court in Hanley v. Hotaling, 41 Cal. 23 , that there be an agreement, either express or implied, on the part of the mortgagor, or some one in whose behalf he executes the mortgage, to pay to the mortgagee a sum of money. So, in Snavely v. Peck, 29 Gratt. 35 , the Court of Appeals of Virginia say: “ That it is essential to a mortgage that there should be a debt to be secured. It may be antecedent to, or *354 created contemporaneously with the mortgage.” The only inquiry, then, necessary to be made is, whether the…