On appeal from a final decree of the court of chancery advised by Vice-Chancellor Bigelow, who filed the following conclusions:

"Complainant sues to have a deed made by her to Louis C. Wallick declared to be a mortgage, and to compel Wallick and his wife to reconvey the property to complainant upon payment of the amount which the court may find to be due thereon. If a conveyance absolute in form was intended by the parties to be only a mortgage, the court will so decree and establish the instrument as a mortgage. `The question turns upon the actual intention of the parties at the time of the transaction.' Papsco v. Novak, 94 N.J. Eq. 642. To justify a decree for complainant, the proofs must be clear and convincing.

"The deed was executed September 1st, 1922, at the Titus home. The negotiations had been conducted between complainant's husband, as her agent, and Wallick; Mr. Titus never saw Wallick in the transaction. Titus testified that he and Wallick agreed upon a mortgage. He told his wife that a mortgage had been arranged and that a lawyer, Judge Frederick W. Mattocks, would bring to the house the mortgage to be executed. Judge Mattocks came, but brought a deed instead of a mortgage. The Tituses expressed surprise and, according to their testimony, were assured that the deed would be merely a security for the debt and that upon payment of the debt the property would be reconveyed to Mrs. Titus. With this assurance, they signed the deed. Wallick denied that he had promised to make a loan upon the security of the property or to take a mortgage and testified that he had agreed reluctantly to purchase it. Judge Mattocks denied having told complainant and her husband that the deed would operate as a mortgage, although he declined to deny that Mrs. Titus had expressed surprise when a deed was presented for her signature. He did not remember whether or not she said anything on the subject. His testimony as a whole was vague, but this may have been so because he gave his evidence seven years after the event. He did remember that it was Titus who first broached the matter to him, and that his instructions were to draw a mortgage. How he came to draw a deed, he did not recall but merely surmised that the instructions were changed.

"Titus was a man of wide business experience. At the time of this transaction he was treasurer of a large New York business house — Lord Taylor. If he really had understood, up to the moment that Judge Mattocks called, that Wallick was going to take a mortgage, it seems to me that he would have 'phoned Wallick to ascertain if the lawyer had not made a mistake; or as the Wallicks and the Tituses lived across the street from each other, he might have called on Wallick personally to ascertain the true situation. Instead, he and Mrs. Titus executed the instrument.

"The two men and their families have been close friends for some years. Enmity and prolonged litigation took the place of friendship in 1923. Mr. and Mrs. Titus both testified that the change in their feelings toward Wallick began with this transaction in September, 1922. They were embittered because Wallick exacted a deed from them instead of a mortgage. If, in fact, they had considered the instrument to be the equivalent of the mortgage, a mere security for a debt, no cause for bitterness is apparent. But if Wallick refused to make a loan, and, taking advantage of their need for money, compelled them to sell to him at a low price, the reason for their bitterness is obvious.

"Vice-Chancellor Pitney, in Pace v. Bartles, 47 N.J. Eq. 170, gives three criteria for determining whether an absolute conveyance was intended as a mortgage. First, was there a debt which was not satisfied by the conveyance but which survived so that the grantee might have sued upon it? Second, was the price paid considerably less than the value of the property granted? Third, what was the conduct of the parties with regard to the property after the date of the deed?

Beginning on December 2d 1921, and ending August 10th, 1922, Wallick loaned the Tituses, by check, sundry amounts totaling $3,800. The Closter National Bank held a note of Mrs. Titus, endorsed by Wallick, amounting with interest to $2,121.80. On September 1st or thereabouts Wallick paid this note. Wallick says that the consideration for the transfer was the cancellation of the debt for $3,800 and the payment of the note. Titus testifies that the deed was given as security for the old debt and for the amount advanced in payment of the note and also for two more items paid by Mr. Wallick about the time the deed was executed: Taxes on the property, $3,299.69; interest on mortgage on the property, $1,100. If Wallick's testimony is true, no debt on which he could have sued continued in existence after the deed; but if Titus' version is accepted, an indebtedness did survive, although there was no written evidence of it except canceled checks. So the first criterion does not throw light upon the transaction.

"Assuming that this was an absolute conveyance, the property was sold for $5,921.80, subject to mortgages in the principal sum of $10,000 in addition to interest and taxes already mentioned, making total liens of $14,399.69. Adding that to the purchase price makes $20,321.49. Wallick says there were other charges against the property, but does not specify them. The property consisted of a small house on a tract of forty-six acres at the southeast corner of Alpine road and Anderson avenue, in the boroughs of Closter and Demarest in Bergen county. The Tituses lived opposite this property at the southwest corner and the Wallicks at the northwest corner. Mrs. Titus had bought the property in dispute in 1910 and 1911 for approximately $26,400. Complainant's real estate expert, Lansing, gave his opinion that in 1922 the land was worth $900 an acre or about $40,000, and the house, $7,000 to $8,000. The defendants produced several experts; two fixed a value of $250 to $300 an acre or, say, $13,500. The third, $350 to $400 an acre, or, say, $18,000.

"The evidence of experts with regard to the value of inactive real estate is generally unsatisfactory and should always be received with skepticism. If their appraisals do not meet the needs of their clients, they are not called to testify. In the present case, their testimony was especially unconvincing because they took the stand in 1929 and 1930 to testify to values prevailing in 1922. In the meanwhile, the value of this property had been enormously affected by the formulation of plans for the Fort Lee bridge. This factor began to increase real estate values about 1924. Also there had been, since 1922, a nationwide real estate speculation. Complainant's expert valued the property in 1929 at between $125,000 and $160,000. His value for 1922 was not supported by any sale of similar property earlier than 1924. None of defendants' witnesses cited any sales that impressed me as having a real bearing on the value of this property. I would say — and this is largely guesswork — that the property in September, 1922, was worth $30,000 to $40,000 and that defendant, purchasing for $20,000, drove a hard bargain. There is no evidence, however, that complainant in 1922 could have sold the property to anyone else for a large price, or could have mortgaged it for $20,000. Undeveloped land is not readily turned into cash. The second criterion tends, though not strongly, to support complainant's case.

"There is no dispute about the actions of the parties after September 1st, 1922. Wallick has always paid the taxes on the property and he paid the interest on the mortgages until 1924, when he paid the principal and had the mortgages canceled. As soon as he acquired the deed, he started collecting the rents. In 1923, he erected a sign on the property advertising it for sale; he repaired the house; he spent a large sum of money — about $20,000 — improving the road past the property. But this improvement benefited the lot where he lived as well as the property in question. In all things, he has acted consistently as owner from the time of the deed to him. The Tituses made no attempt to collect the rents; they did not offer to pay taxes or interest, or to keep the house in repair; they made no objection to Wallick offering the property for sale. Since they executed the deed, they have done none of the things that an owner of land usually does. Nor did they ever tender interest on the debt which they allege they owe Wallick; or ever inquire from him the amount of his receipts or expenses in connection with the property until the end of 1926 — more than four years after the date of the deed. Then Titus went to Wallick's home and said he wanted the property back and was ready to pay Wallick whatever was due him. Hot words followed and he left the house. The bill was filed a year later. Titus explains the failure to pay interest and carrying charges or to ask for an accounting on the ground of the enmity between the parties and on the further ground that he and Mrs. Titus had no money with which to pay Wallick.

"On the whole, I have no difficulty in arriving at the conclusion that complainant has not proved her case. The testimony of herself and her husband is vague and in some respects conflicting. The same might be said of Wallick's testimony. This may be due in part to the lapse of time, but if so, complainant must suffer the disadvantage. A person who claims that a deed is not what it appears on its face to be, but is instead a mortgage, and who relies wholly on oral evidence, waits at his peril if he delays bringing suit until the memory of parties and witnesses has become blurred and indistinct. The inferences arising from the disparity between the purchase price and the value of the land, depend upon unsatisfactory evidence of the value and therefore cannot have much weight. The conduct of the parties from the date of the deed, September 1st, 1922, to December, 1926, weighs against complainant's contention, and dispels any doubt in her favor that might have been raised by the apparent inadequacy of the purchase price."