
    Susan J. Meador v. Henry L. Meador, et al.
    
    Mobtg-age. By Deposit of Title Deeds. A mortgage by parol and deposit of title deeds is not valid in Tennessee.
    EEOM SMITH.
    In Chancery at Carthage, before B. M. TillMAN, Chancellor.
    The bill alleged that the defendant, Joseph Meador was in possession of the deed of ~W. A. Meador, .late husband of complainant, and that he claimed to hold it under a parol mortgage and deposit of the deed. That he had sold the land to a co-defendant, Jones, and made him a deed, and prayed the delivery of the deed deposited, and the cancellation of the other deed as a cloud. That W. A. was dead, and Henry L. Meador, defendant, his heir at law, and defendant Duke, his administrator. The answers set up the deposit as an equitable mortgage, and, by way of cross bill, asks “if no lien exists,” a sale of the land and the application of the fund to the payment of the debts of defendant.
    The decree below, reciting that it appearing that the deed “was delivered to the said Joseph Meador by the said W. A. Meador, deceased, intending thereby to secure the said Joseph Meador for his liabilities as security, and otherwise, of the said W. A. -Meador, deceased;” declared that the delivery of the deed of W. A. Meador to defendant Joseph Meador did not create a lien or mortgage on the land in favor of Joseph Meador, and that complainant was entitled to dower and the residue of the fund, subject to the payment of all just debts outstanding — it adjudged that the title to the land was “in the heirs of W. A. Meador, deceased, and that the deed from Joseph Meador to his co-defendant, was void, and a cloud upon the title of the heirs at law of W. A. Meador, deceased, and shall be for naught held.”
    From this decree the defendants appealed.
    James W. McHeNey, for Duke,
    cited Russell v. Russell, 1 Bro., 269; 4 Kent, 150, 151, 168; Coote, 222; 1 Hil. on Mort., 3rd ed., 650, 662; 2 Sto. Eq. Jur., § 1020; 2 Greenl. Cruise, 85; Gilliam v. Esselman, 5 Sneed, 88; Barfield v. Cole, 4 Sneed, 465; Arendale v. Morgan, 5 Sneed, 703.
    JOHN W. Head, for respondents,
    said: In England, an equitable mortgage may be created by the deposit of title deeds, and is not within the statute of frauds: Russell v. Russell, 1 Bro., 269; Biroh v. Ellames, 2 Anst., 427; 4 Kent, 150; Willard’s Eq. Jur., 440; Ex-parte Whitbread, 19 Yes., 209; 2 East E.,' 486; 2 Yes. & Beanies, 79; 12 Price, 597; 2 Mylne & K., 417, 419. This doctrine has been repeatedly recognized in New York, though they have Eegistry laws similar to ours: Jackson v. Parkhurst, 4 Wend., 376; 1 Johns. Cas., 114; 2 J. C. E., 603; 2 Sandf. Ch., 9; Willard’s Eq. Jur., 440. Some of the other States have recognized the same doctrine, aiid it has been recognized by the Supreme Court of the United States in Mandeville v. Welch, 5 Wheat, 284. The question has not been directly decided in Tennessee. The cases cited in 1 Heis. Dig., do not sustain the doctrine there laid down. Barfield v. Coie, 4 Sneed, 465, draws the distinction between a pledge and a mortgage, and decides that a mortgage, under the act of 1831, does not take effect as to creditors until registered. Qittiam, v. Esselman, 5 Sneed, 86, does not raise the question, and the language of McKinney, J., is a dictum. If it were a decision, the Judge is referring to legal, not equitable mortgages. The case does not decide that equitable liens can not exist without writing. In Arendale v. Morgan, 5 Sneed, 703, it was held that a verbal pledge of a slave was good, and the case, so far as it holds that the act of 1831 has no application to a pledge, is an authority for the defendant’s position. The vendor’s lien is implied without any writing to create it, and the lien of a purchaser of land by parol is a stronger instance: Anthony v. Smith, 9 Hum., 508; 7 Yer., 168, lb., 9, 13; 1 Yer., 97, 100; 1 Hum., 325; 5 Hum., 129. The case here arises between the original parties or persons in their shoes, not with creditors or purchasers.
   Tueney, J.,

delivered the opinion of the Court.

The delivery by a debtor to his creditor, of a deed made to the debtor for land, upon the agreement and understanding between the debtor and creditor that the creditor .is to hold the deed as security or indemnity for debts due from the debtor or for which the creditor is bound as surety for the debtor, creates no lien or mortgage, legal or equitable, upon the land embraced in the deed.

A contrary holding would be a judicial repeal of our statutes of frauds and perjuries, making void, sales not evidenced by writing, of lands, tenements or hereditaments.

Affirm the decree, and remand the cause for the assignment of dower and account for rents and profits.  