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Syllabus

Real property — Conveyance—Deed—Deed absolute in fortn-— Mortgage. 1. A deed absolute in form cannot be reduced to a mortgage of the premises except by proof of a written agreement signed and delivered by the grantee thereof providing that the conveyance was but as security for a debt. Trusts — -Express trusts — Implied trust — Fraud—Deed—Reduction of deed to mortgage. 2. Upon the trial of an action in equity to declare a trust of a certain apartment house in plaintiff’s favor, and to restrain proceedings to evict plaintiff from an apartment occupied by her therein, and for an accounting, it appeared that plaintiff, who had been the owner of said apartment house, subject to mortgages, had conveyed the same to defendant, one of the mortgagees, by a deed absolute in form. Plaintiff submitted oral evidence of an agreement by defendant that the conveyance was merely as security for indebtedness, and that the property would be re-conveyed upon payment of such indebtedness. After the conveyance plaintiff was allowed to occupy an apartment in the property without payment of any rent. No evidence was offered of any written declaration of trust or written promise to re-convey, nor of any false representations by which plaintiff had been induced to make the conveyance. The lower court held that the trust relied upon by plaintiff was within the statute of frauds and could not be proven without a writing, that the deed absolute in form could not be reduced to a mortgage by oral evidence, and that the evidence would not justify a finding that there was a trust ex maleficio, and dismissed the bill. Held, no error.