
    No. 635
    HELMGOLD v. HELMGOLD et
    No. 19884.
    Supreme Court
    On motion to certify.
    Dock. June 10, 1926.
    997. REAL PROPERTY — When a deed has been executed and delivered may the Probate Court inquire into the circumstances at a hearing and declare said deed to be a mortgage after the grantor’s decease?
    Attorneys — L. C. Feighner, Bucyrus, and C. A. Meckl, Toledo, for Pltf.; Conn & Holloway, Toledo, for Deft.
   This action was brought originally in the Lucas Common Pleas by Mary Helmgold as administratrix of the estate of Emil Helm-gold', her husband, to sell certain real property' and in this proceeding Gustave Helmgold was made a party defendant.

It appears that prior to the death of the intestate Emil was indebted to Gustave and executed and delivered to him a deed upon the property in question. The administratrix contends that the deed was given merely to secure a debt and should he declared a mortgage.

The judgment of the Probate Court in declaring the deed to be a mortgage was affirmed by the Common Pleas and the Appeals.

Gustave Helmgold in the Supreme Court contends:

1. That the indebtedness was the consideration for the deed.

2. That the deed being absolute on its face' the title passed to the grantee therein named.

3. That the court was without jurisdiction to grant an order for the sale of the property.  