1. It is conceded that plaintiffs have no title in the premises sought to be partitioned, unless they acquired it under the deed from Harrington, which is admitted by all parties to have been intended as a mortgage. The principal question, then, remaining for consideration is whether a grantee in such a deed can maintain a suit for partition, and this we think must be answered in the negative. The statute regulating the partition of real property applicable to this case provides that when several persons hold and are in possession of real property as tenants in common, in which one or more have an estate of inheritance or for life or years, any one or more of them may maintain a suit for partition: Hill’s Code, § 423. It is necessary, therefore, that plaintiffs show both a legal estate in and possession of the premises sought to be partitioned; and it is the settled law of this state that a deed, though absolute in form, if intended by the parties as a security for a debt, is to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the debt, and that it vests no title or right to the possession in the grantee, but simply creates a lien or incumbrance on the land: Anderson v. Baxter, 4 Or. 105; Hurford v. Harned, 6 Or. 363; Sellwood v. Gray, 11 Or. 534 (5 Pac. 196); Thompson v. Marshall, 21 Or. 171 (27 Pac. 957); Adair v. Adair, 22 Or. 115*48(29 Pac. 193). In such case the court looks beyond the terms of the instrument to the real transaction, and when that is shown, will give effect to the contract of the parties; and, whatever may be the form of the instrument, if it was executed as security for a debt, it will be treated merely as a mortgage, and the title and right to possession will remain in the mortgagor until foreclosure and sale: Odell v. Montross, 68 N. Y. 499; Shattuck v. Bascom, 105 N. Y. 39 (12 N. E. 283); Barry v. Hamburg-Bremen Insurance Company, 110 N. Y. 1 (17 N. E 405). Prom this it necessarily follows that plaintiffs have no legal estate in or right to the possession of the land sought to be partitioned, and cannot maintain a suit for that purpose. The alleged transfer of Harrington to Preeland, and of Preeland to the plaintiffs, of any interest in the premises which might have remained in Harrington after the execution of the deed by him, was wholly ineffectual to transfer title,— first, because Harrington had no title which he could convey; and, second, if he had, it could not be conveyed by parol: Peugh v. Davis, 96 U. S. 332; Marshall v. Williams, 21 Or. 268 (28 Pac. 137).
2. It was urged that in case the court should reach the conclusion that plaintiffs did not have such a title to the property as would enable them to maintain this suit, the court should nevertheless retain the cause, and enforce plaintiffs’ lien upon the property, if it should be of the opinion that the debt to secure which the property was conveyed had not been fully paid. A sufficient answer to this position is found in the fact that the complaint contains no allegations upon which such a proceeding could be based; it is in the form used in partition suits, and alleges that plaintiffs are the owners and in possession of the property, and that is the only question presented for decision, and, having reached the conclusion that they are not the owners or entitled to the possession of the prop*49erty described in the complaint, we have no alternative but to affirm the judgment. Affirmed.
