dissenting:

Tbe deed from Burkhart to Miller was regular and absolute on its face. Under the act of 1881 the alleged parol defeasance was ineffectual to reduce it to a mortgage. The grantor could not enforce it specifically, nor could he maintain an action for damages for the breach of the parol agreement. It is “ the reduction itself which is forbidden by the act, and this must apply to every means, direct or indirect, by which that result is sought to be reached: ” Molly v. Ulrich, 133 Pa. 41. Whether or not the grantee would reconvey the premises and revest in the grantor tbe estate, depended wholly upon the will qí the former. In the meantime the title and the estate, both at law and in equity, were in him. The deed, therefore, was not a mortgage. To hold that it was would be to give effect to that which the statute says shall have no effect, and which, as Chief Justice Gobodost said in Sankey v. Hawley, 118 Pa. 30, the legislature intended to “abolish utterly,” the oral defeasance. Grant that the execution and delivery of a formal mortgage would not be a breach of the condition of the policy, does it follow that an absolute transfer of the whole title, the estate vesting under it being determinable at the mere will of the grantee (which would have been the entire legal effect of the rejected evidence), is not? Is there anything in the context or in the principle upon which the condition is founded to lead us to suppose that the parties to the policy did not intend to include such a conveyance ? I am unable to find any reasonable ground upon which the policy can be so construed. The deed was what it purported to be, a conveyance in fee simple — a “'transfer of such property,” within the true spirit and intent, as well as the letter of the condition. The contention that the protection of the policy was merely suspended while the title remained out of Burkhart, and was revived when the premises were reconveyed to him, cannot be sustained. By the express terms of ■the policy it became “ null and void, from the date of such .... assignment or transfer.” This was the contract of the parties, and, in the absence of proof of waiver or grounds of estoppel, the law of the relation of insurer and insured. That terminated when the condition was broken by the voluntary act of the insured, and could not be restored without the express or implied assent of the insurer. All of the questions raised *293are, in my judgment, fully and satisfactorily answered in the opinion filed in the court below, and I would affirm the judgment for the reasons there given.

Opinion by

In December, 1891, plaintiff insured his house and barn in the defendant company by a policy to run for five years. Sec-*289lion 13 of that policy is as follows: “ Any property insured by this company which shall be levied upon or taken into possession under any proceeding in law, or if on an assignment being made or any transfer of such property, this policy shall be null and void from the date of the levy, assignment or transfer.” In November of the following year the plaintiff borrowed $100 from one Miller, and gave him a note therefor, and one month later made a deed of the insured property, absolute on its face, to Miller which was recorded on December 5,1892, but with the understanding and agreement that the deed was to be held as security for the note. In September, 1898, Miller and his wife, the note having been paid, reconveyed the premises to the plaintiff, which deed was duly recorded on the 15th of August, 1894. In July, 1894, the insured property was totally destroyed by fire. During the time from the date of the policy until the destruction of the property by fire the plaintiff remained in possession and control of it and paid three assessments as called by the defendants, two during the time that the deed to Miller was on record, and one assessment a few days after the fire. There was no evidence that the defendant knew of the deed to Millér. After the fire the defendant offered-to return to plaintiff the three assessments. When the defendant denied responsibility for the loss on the ground of the deed to Miller being a violation of section 13, quoted above, the plaintiff offered to show that the deed was, by an understanding and agreement between him and Miller, intended as a mortgage to secure the payment of the loan by Miller to the plaintiff. The court below excluded this offer of proof on the ground that it was inadmissible because of the provisions of the Act of June 8, 1881, P. L. 84, and held that the deed was an absolute conveyance in violation of section 13 of the policy, and that the risk did not reattach after the reconveyance by Miller. Judgment was entered for the defendant.

The language of the act of June 8, 1881, is no more general than is that of the statute of frauds and perjuries of March 21, 1772,1 Sm. L. 389, sec. 1, nor than that of the Act of April 22, 1856, P. L. 532, sec. 4, requiring deeds of trust of land to be in writing. These acts of assembly were passed to prevent the compulsory transfer of title to real estate for breach of contracts unless such contracts were evidenced by writings. *290The courts have persistently refused to apply these acts for the benefit of persons not parties to the parol contract, or privies thereto. It has been held that vendors may admit a parol agreement to convey real estate even against those who have been in possession of it for nineteen years and paid taxes on it part of that time: Christy v. Brien, 14 Pa. 248. The same principle was applied against one who held a title from another knowing that he had been holding it for the benefit of a third person, when that other admitted the parol agreement of sale between himself and the third person: Houser v. Lamont, 55 Pa. 311. It was likewise applied against one obtaining a judgment against a debtor a few months after he had conveyed his title to another person in pursuance of a parol contract of sale. Speaking of the debtor in that case, the following language is used: “He stood in the precisely analogous position of an owner who sells land bj’ parol and receives the purchase money but delivers no possession. The title remains in him by virtue of the statute of frauds and perjuries and he cannot be compelled to convey it. But if he choose to fulfil his verbal agreement and actually convejrs to the purchaser, who can gainsay it? . . .If Forman ” (he was the debtor) “ held the land on these terms and conveyed it to Spencer in compliance with the understanding, it is clear there was no fraud on the rights of creditors, whether he had the power to refuse to convey because of the act of 1856 or not.....The question of mortgage or not, or trust or not, concerned Forman alone, so long as the title was uncontrolled by the lien of any judgment. It was in his power, if there were no liens to prevent it, to carry out honestly and in good faith, the agreement under which he took title, without payment of any consideration on his part: ” Sackett v. Spencer, 65 Pa. 89. It was again applied against a vendor in favor of a judgment creditor of a vendee, when the vendor gave the vendee a deed in return for a judgment bond for the balance of the purchase money. In this case the following language was used: “ When the vendors recognized this estate and possession, by a final conveyance under the qontract, they waived the operation of the statute of frauds and gave their assent to the merger of the determinable estate in the fee. The principle of this will be seen in the cases of Christy v. Brien, 14 Pa. 248, Houser v. Lamont, 55 Pa. 311, and later cases recognizing them. A *291vendor is not bound to set up a statute of frauds made for his protection, for in such case neither fraud nor perjury need be apprehended Appeal of Lloyd, 82 Pa. 485. In our view this act of June 8, 1881, must be treated in the same way. It was passed to prevent a person holding a deed to real estate from being held to be a mortgagee without his consent. We do not think that it was intended to prohibit such a holder of a title from admitting, if he chooses to do so, that in reality he has only a mortgage. Creditors of the holder of such a title and the real owner of the property, or purchasers for value without notice, of course would stand in a different position and be protected by other principles: Flory v. Houck, 186 Pa. 263. The defendant, however, belongs to neither class, for it had no claim against Miller at any time, nor was it an innocent purchaser. The case of Sankey v. Hawley, 118 Pa. 30, relied upon by the court below, is to be read in the light of the facts then before the court. It was a contest between the parties to the contract. The act of June 8, 1881, was said to be designed to prevent frauds. That was also the purpose of the statute of frauds and perjuries, and of the act of April 22, 1856, but as we have shown, this purpose of these two acts did not prevent those who were parties to the parol contract from refusing to avail themselves of the statutes if they choose to do so, nor did it enable those who were not parties to the parol contract, nor interested in the real estate as creditors or purchasers without notice, to take advantage of the statutes if the original parties to it, or their privies, refused to do so. Whilst the court say that this act prescribes a rule of evidence, it must be apparent that it means a rule of evidence to be applied in the contest between the parties to the contract, and as the application of other rules of evidence can be waived by the parties so can this one, except, of course, as to parties interested, as in Flory v. Houck, supra.

If the plaintiff can show that the transaction was as Ms offer of proof would indicate it to be, it is clear that such a transfer would not be a violation of the 13th section of the policy: Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1; Howard v. Ins. Co., 23 Pa. 50; Biddle on Insurance, sec. 213. This being so we conclude that it was error for the court to have excluded this evidence.

Judgment reversed and venire facias de novo awarded.