before this deed was executed a suit had been brought for the foreclosure of the $2500 mortgage; that Harry had consulted an attorney, who advised him that he had no defense and ought not to squander money in trying to oppose the foreclosure, but that he had "better do one of three things: First, raise money to pay interest, insurance and costs and have the suit dismissed; second, negotiate a new loan of $2900 or $3000 for a term of years and pay off this one; third, find someone who will buy the place from you and pay the debt. This loan to Andrews [the mortgagee] would mature January 27, 1899. If you can get someone to take the title in fee simple and pay off this loan, with privilege to you of re-purchasing within some fixed time, it might be feasible." Harry's aunt, Susan, who was living with the family, wrote to Enoch at Washington stating some of the difficulties in which the Winnetka Tottens were involved with reference to the foreclosure proceedings and other obligations. Because of this letter Enoch then wrote to Harry asking what the situation was with reference to the property in Winnetka and other obligations, and on February 15, 1897, Harry wrote to Enoch as follows: "Dear Uncle-Aunt Sue gave me the memorandum that you wrote out for Aunt Annie. I have turned same over to Tom McClelland, the lawyer, who can write more intelligently and explain matters better than I. He will write to-day and give you an outline, at least, as to how things stand. I am not equal to it, being sick and nervous. I supposed, up to two weeks ago, that I could avoid the greater part of this trouble, but at the critical period the party on whom I was depending disappointed me. Then I gave up and got sick. If you are in a position to pay the claim against me I will deed the property to you outright and you can hold same until I dispose of it at its value, which, when times are reasonably decent, is nine or ten thousand dollars. Just now I could not get over seven thousand for it, and not that at this time of the year. I do not want to have anything to do with figures, money transactions or anything else connected with this affair. You and McClelland can handle the whole matter. I am neither mentally nor physically capable of standing much more trouble without totally collapsing, and this is too much to think of. I do not want to bor row anything, neither do I want to lose my place, so if you can take it, do so, and when everything is brighter I can get out whole and not be in debt. * ** I hope you can help me. If not, I will simply have to trust to good luck and good times, which means my ability to dispose of the place before the summer is over. Give my love to all. "Yours, HARRY TOTTEN." On the same day attorney McClelland wrote Enoch on the same subject, and on March 6 Enoch wrote a letter to Harry inclosing a memorandum of Harry's indebtedness to him, and saying, among other things: "I have a letter from McClelland, but he did not give all the facts I wanted and I have written him again. I do not know whether I can take up that debt in time or not." The itemized account of Harry's indebtedness, which was included, amounted to $1933.70. On March 11 Enoch sent McClelland, the attorney, a draft for $3200, with this letter: "I enclose herewith a draft on New York for $3200 to pay off the debt of Harry Totten secured on the Winnetka property. Should it fall short please furnish the balance and advise me and I shall reimburse you. Should there be more than necessary please return the excess to me. Harry is to convey all the property to me in fee. There are two parcels. Should you prepare the deed I wish that you would see that all is conveyed. It is prudent to have everything covered by the deed. Harry puts a much higher value on the property than I do. Please see that the deed is recorded and then send it to me." On the same day Enoch wrote Harry saying: "I sent McClelland $3200 and have asked him to pay off your trust deed on Winnetka property. Send me a fee simple deed to all the property." Harry thereafter executed said warranty deed heretofore referred to, on March 15, 1897, for the expressed consideration of $3200, the foreclosure decree was satisfied, the abstracts of title were brought down to date and Harry assigned the insurance policies to Enoch. March 25, 1897, Enoch wrote the following letter to Harry: "I enclose you a full account of money between us after closing up the trust deed to Moore. McClelland sent me his account of disbursements this morning. I sent him $3200 and he returned me $III.93. He tells me the abstract shows special assessments unpaid. This had better be attended to before more costs are incurred. I hope you are all right now and will soon get under way." The account inclosed in the letter reads: "Itemized statement of loans to Harry Totten by Enoch Totten and of the redemption of the Winnetka property by Enoch Totten: 1891, November 16th, check..... 1891, December 12th, draft... 1893, September 20th, demand note.... Re-paid by check. . . . Balance. 1894, May 14th, check.. 1894, September 17th, sight draft. 1895, April 19th, check. 1896, October 20th, N. Y. draft.. 1896, November 3oth, cash. $1500.00 2000.00 150.00 $3650.00 3300.00 $350.00 368.70 1000.00 100.00 100.00 15.00 $1933.70 1897, March 11th, by draft to redeem Winnetka property ..... .... from sale 1897, March 11th, to Moore, trustee, for formal release after redemption 1897, March 11th, to Merchant's Nat. Bank on a/c N. Y. draft .... ... 1897, March 11th, to abstract makers for continuation showing satisfaction of decree and title in E. T... Total...... 1897, March 11th, check from McClelland for balance due E. T.... 3200.00 3.25 .86 15.60 .$5153.41 III.93 .$5041.48" Total due from Harry Totten.... The evidence shows that Harry Totten continued in possession of the property after the date of the deed, March 15, 1897, and was at the time of the trial of this case in the circuit court still in possession and occupying it as his home; that no demand was made by Enoch in his lifetime or by any of his heirs-at-law or next of kin for the repayment by Harry of any of the sums of money borrowed from Enoch, and no interest was ever demanded or ever paid by Harry to any party on account of said loan, and that no rent was ever demanded or paid for the premises to Enoch or any of his heirs or next of kin subsequent to March 15, 1897; that the taxes on the Winnetka property for the years 1897 to 1901, inclusive, were paid by Enoch or his estate, the total amount for those five years aggregating $467.11; that the taxes for the years after that, until the beginning of this litigation, were paid by Harry. The conveyance from Harry to Enoch Totten was an ordinary short-form warranty deed, which on its face purported to convey a fee simple title. The decree of the circuit court held that the loans made before the execution of this deed and the payment for the redemption of the mortgage just before said deed was executed were made by Enoch for the purpose of maintaining a home for the Totten family at Winnetka and that it was not intended that such loan should draw interest; that while no time was specified for the payment of the loan and there was no express agreement between the parties as to its maturity, the loan did not become due until demand was made for it; that the deed of March 15, 1897, by Harry to Enoch was not a conveyance absolute but a conveyance by way of mortgage as security for the amount of $3088.07 so advanced by Enoch as a loan to Harry, and that on the payment by Harry to the appellants, Edith and Gerald Totten, and appellee Howe Totten, of the sum of $3088.07, together with the sum of $467.11 advanced for taxes, Harry will be entitled to a re-conveyance from Edith, Gerald and Howe Totten, the heirs-at-law of Enoch, of the legal title to the Winnetka property. Section 12 of chapter 95 of our Revised Statutes provides that every deed conveying real estate which shall appear to have been intended as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage, and parol evidence will be admitted to show that it was intended to be a mortgage. (Ruckman v. Alwood, 71 Ill. 155.) The burden of proof rests upon the one asserting a deed absolute in form to be a mortgage to show that fact by clear, satisfactory and convincing proof. Deadman v. Yantis, 230 Ill. 243; Rankin v. Rankin, 216 id. 132; Novak v. Kruse, 288 id. 363. Counsel for appellee Harry Totten claim, first, that the money advanced by Enoch Totten to save the homestead to the family was intended as a sort of contribution to assist in supporting the Winnetka family, probably never to be re-paid, and that the title was transferred to Enoch, the strong financial member of the family, simply to make sure it would be preserved as a home for the family, and that the property should have been turned over to Harry and his sister without the payment of anything on their part; second, if Harry's warranty deed prevented such return of the property because there was no express trust, then they argue that the same result is arrived at by applying the Statute of Limitations, since it is claimed that he was in adverse possession of the premises for more than twenty years after the execution of the deed; third, they insist that if neither of these positions can be sustained, then, at the most, the warranty deed from Harry to his uncle was only meant to secure the amount involved in taking up the mortgage debt at the time the deed was executed. They concede that the first two claims are inconsistent with the third, and, at the last, place their sole reliance on the finding of the decree that the deed was not an absolute conveyance but was given as a mortgage to secure the payment of the loan, so that we will not give any serious consideration to their first two claims and shall devote this opinion to a consideration of the question whether or not the record sustains this last position. There can be no question that a deed takes effect from its delivery and that its character at the time of such delivery becomes fixed as of that time. (Bearss v. Ford, 108 Ill. 16.) The question whether a deed which is absolute in form is to be taken as a mortgage depends upon the |