The opinion
McFaddin, J.
(dissenting). I respectfully dissent from tlie majority, because I am of the opinion that the decree of the lower court should be reversed and the cause remanded with' directions to foreclose appellee’s mortgage. My reasons are:
(1) In consider the delivery of the deed to Mr. Farmer wholly insufficient to constitute a delivery of the deed into escrow. A study of tlie record convinces me that Mrs. Randall left the deed with Mr. Farmer (a) to be delivered on her order, or (b) on her death to be delivered to Mr. Taylor. That arrangement gave Mrs. Randall control over the deed as long as she lived; and so there was no delivery beyond her control.
(2) It is absolutely undisputed that the note, mortgage and deed were all executed as one transaction; and thus the deed was executed with a defeasance clause, and therefore was a mortgage. The rule “once a mortgage always a mortgage” certainly applies. See Jones on Mortgages, 8th Ed-, § 8. The necessity of applying the rule to this case is materially strengthened by the fact that the mortgage provided for future advances, and Mr. Taylor (according to statements made by Mrs. Randall) agreed to. pay her bills. The conveyance was thus to support the advances that Taylor might make; and was, therefore, a mortgage.