LAM THING V LYNCH.

It will be noted, therefore, that two questions are involved.
First.-Was the deed in question intended by the parties to be a mortgage?
Second.-Was the privy examination of the wife, under the circumstances, necessary, and, if so, was it properly taken?
There can be no question that a deed, absolute on its face, can, by a court of equity, be treated as a mortgage it such was the plain, unquestioned, and mutual agreement of the parties at the date of its execution and delivery. This fact should be clearly shown, and, in the case at bar, was submitted direct as a fact to be passed on by the court, and the court found that such was not the agreement; and, as the evidence fully sustains such finding, this court will not disturb the verdict on that account.
It may be noted further that thi3 application on the part of the defendant is in the nature of equitable relief, and it may be questioned as to whether he would have been entitled to the relief sought even though his contention had been found to be correct until and unless he had offered to refund the $12,000 advanced by the plaintiff. It is a well-settled rule that he who asks equity must do equity.
The intervening defendant claims that she had a lease on certain property which belonged to the Panama Railroad Company for a term of years, and that on this she erected with her own funds certain houses; that these houses were included in the deed mentioned, but that her privy examination to said deed was not properly taken. The certificate to the deed does not seem to be in strict accord with the statute required to pass a fee simple title, and the judge of the Court below opened up the question and took evidence on this point, and found that, as a matter of fact, the law had been complied with. The court below does not seem to have passed upon the question as to whether it was necessary for a privy examination to be taken in a matter of a leasehold estate. The instrument called a deed was nothing more than a conveyance of whatever interest the maker had in a lease for years. There is a statement in the answer that the intervening defendant did not understand that her property was included, or the purport of the conveyance, but there is nothing in the record that would warrant a serious consideration of these points.
There is no error in the finding of the court below. Let the judgment be affirmed.
Affirmed.
MR 36336-18

273