¶1One Inskeep was plaintiff’s debtor in
¶2the sum of $709.83. Plaintiff, hearing that he was becoming embarrassed and that executions were being levied upon his property, went to him, either to have him pay or secure his claim. As the result of their meeting and conference, the following instrument was drawn and signed:
“Kansas City, Mo., November 17, 1886.
“Know all men by these presents : That I, J. B. Inskeep, do, on this day and date, in consideration of the sum of $709.83, sell, transfer and deliver to E. King all my right, title and interest in two hundred and thirty-five acres of wheat now growing on the King and French lands, in Kingsville township, Johnson county, Missouri. J. B. Inskeep.”
¶3The question before the trial court was, was this instrument, considered with the evidence, an absolute bill of sale, or a mortgage ? If a mortgage, it seems to be conceded to be void, as to these defendants who purchased the property, as it was not acknowledged or recorded. The circuit court gave‘a peremptory instruction for defendants at the close of plaintiff5 s case, and he appeals.
¶4We are satisfied the cause was disposed of on a theory inapplicable to the issue in the cause. Whatever doubt there may be as to the character of the transaction has been resolved in favor of the theory of the instrument’s being a mortgage. Such principle of law is applicable when the issue is, whether the instrument is a conditional sale or mortgage. Bender v. Markle, 37 Mo. App. 284, and authorities cited therein. So that, if in such case the evidence leaves it in doubt whether an instrument was intended as a conditional sale or a mortgage, it will be held to be a mortgage.
¶5*171But the reverse of this is the rule where the issue is whether an instrument, absolute on its face, is an absolute conveyance or a mortgage. If, on such issue, the matter is in doubt, I should say the -matter would be resolved in favor of the letter of the conveyance. For, before such an instrument can be overthrown and declared to be something different from its terms, the proof should be of a cogent and conclusive character, leaving no room for reasonable doubt. Wesley v. Dryden, 57 Mo. 226 ; Eystra v. Capelle, 61 Mo. 578 ; Jones Chat. Morg., sec. 22. It is well enough to add, though it would doubtless be understood, that, even though the-issue is whether the instrument be an absolute deed, as expressed on its face, or a mortgage, and the evidence conclusively and unequivocally shows it not to be absolute, but leaves'it in doubt whether it was a conditional sale or a mortgage, the doubt would here, also, be resolved in favor of its being a mortgage. Defendant cites to us the case of O’ Neill v. Capelle, 62 Mo. 202. That case only corroborates what we here say. Judge Sherwood said of the evidence in that case, that not the slightest doubt existed,' and “that a plainer or stronger case never invoked equitable interposition.”
¶6The case should be tried with reference to the views herein expressed, and will be reversed and remanded for that purpose.