
    Patrick Rogan, Appellee. vs. Martin O. Walker, James Rogan, Ellis Baker, Appellants.
    Where a party holds out to settlers upon the Government lands, that he will, on the sale of such lands'; advance for the use of the settlers the necessary sums to purchase the lands of which they are possessed, or desire tó purchase, arid that on makiiig the purchase at the government sale he would convoy to the persons for whom he purchased, und where, under such proposal, aft occupant of government lands applies for an advance of the purchase money, and receives a deed from the purchaser, and gives to him a bond for double the amount of the sum paid: held, that the relation between the settler arid the party loaning the moiioy, was an equitable one, and that though the bond had not been paid, the title was in the settlor, and he had the equitable right to redeem by paying the sum duo on the bond; and that by the failure to pay, the equity of redemption was not lost'.
    Where the party who loaned the móney had made a conveyance of part of the land; the grimtee was entitled to all the rights which wore vested in his grantor.
    A general demurrer to a bill founded on these facts, will not bo sustained. The equity of the case will prevail over the technioal provisions of thó bond of forfeiture.
    This was an appeal by one of the defendants below, from the decision of the Circuit Court of Iowa county, upon a general demurrer to the complainant’s bill. The bill Was filed in the county of La Fayette, but the cause was subsequently removed to the county of Iowa. Th® substance of the bill is as follows:
    That James Rogan went into possession, some time m the year 1830 or 1837, of two tracts of will land about half a mile apart, then belonging to the United States, which tracts are severally described as the northeast fractional quarter of section pumber five in township, number eight of r^nge fifteen east, in the county of Jefferson in this State; and the northeast quarter pf section number thirty-two of townslfip number nine of range fifteen in the county pf Dodge in this State; and that he remained in peaceable possession thereof 'as a settler until the time of the land sale.
    The bill further states that at or soon before the land, sales at Milwaukee, in November, in the year 1838, Martin O. Walker appeared in the town of Milwaukee and gave out and caused to be given out among the settlers on the public lands then about to be sold, that he had large sums of money, jointly belonging to himself and Ellis Baker, which he. Walker, proposed to advance and lend on befialf of himself and said Baker, to purchasers of said lands on security of said lands on the following terms and conditions; he, the sqid Walker, would purphase in his own name from the United States at the said land sale, at the minimum price of one dollar and a quarter per acre, the tract or tracts of land which the botrower of money from him, the said Martin 0. Walker, de.sired tp purchase, and take as a security for the loan the bond of such borrower to himself and the said Ellis Baker, in a penalty conditioned for the payment to the obligees therein, their executors, administrators or assigns, of double the said minimum price as tobe paid to the United States, payable at a future day to be agreed upon, with interest thereon at the rate of one-half per centum per annum, and would thereupon convey such tract or tracts pf land tq such borrower by deed of conveyance with covenants of warrantee against the acts of him, the said Martin 0. Walker, only, with a condition or proviso, annexed and forming a part of the deed, that if the grantee named in such deed should fail to comply with the condition of such bond, then that such conveyance and the estate thereby created, should cease, determine and be of no effect; and the said Martin O. Walker, or his legal representatives, should have the right to enter and take possession of the. premises thereby conveyed, and to sell and convey the same to any pther person or persons, and keep and retain all moneys paid thereon, without recourse in Law o^. Equity.”
    The bill charges that Walker, when he came to Milwaukee, as aforesaid, brought with him printed forms, printed long previously to the land sale, for the use of Walker and Baker, and having their names printed therein, of such bonds and Deeds as before described for the purpose of being used by Walker in any transactions which he might be able to effect with persons proposing to purchase lands at the land sale. That James Rogan went to ?aid land sale to purchase the two tracts before mentioned, and that he finding, himself short of the necessary funds, to purchase them, and learning the proposals of Walker-before mentioned, applied to Walker for a loan of money sufficient to enable him, the said Rogan, to purchase the said two tracts; that Walker consented to do so, upon the. terms of his proposals, and to give Rogan credit there-, on for the term of four years; to all which said Ro-gan consented, and an agreement was accordingly made between them on the terms of the proposals and givings out of Walker before the sale of the two, tracts Or either of them; that in pursuance of the agreement between Walker and Rogan, the said Rogan did on the 18th day of February, A. D. 1839, execute to Walker the bond of said Rogan, bearing date on that day, in the penalty of $1659,14, to be paid to said Walker and Ellis 'Baker, their executors or assigns, and conditioned for the payment by Rogan to Walker and Baker, of the sum of $829,58, on the 18th day of February, A; B., 1843, and annually On the 18th day of February the sum of $29,04, as interest, and for the payment of ali taxes, &c., that might be imposed upon the premises that day covenanted by said Walker to said Rogan, and in ali things to save him and them harmless; and that thereupon and in pursuance of the agreement between Walker and Rogan, Walker did on the said 18th day of February, make and execute in due form of law, his deed of conveyance bearing date on that day, purporting that the said Walker in consideration of the condition of a certain bond thereiri nárñed, and of one dollar in hand paid by the said James Rogan, did thereby grant, bargain, sell and confirm unto the said James Rogan and to hi¿ heirs and assigns, by apt and proper description, the said two tracts of land hereinbefore described as containing and which did contain three hundred and thirty-one acres! and eighty-three hundredths of an acre, together with the appurtenances to have and to hold the said premises with the appurtenances unto the said Jafnes Rogan, and to his heirs and assigns forever; and that the said Walker, for himself, his heirs, executors and ádmiíiistrátors, did covenant to and with the said James Rogan, and his heirs ana assigns, the thereby bargained premises in the quiet and <puhceable possession of the said Janies Rogan, hrk ¿eirá or assigns, against all and every person or persons law.-Cully claiming or to claim the whole or any part.thereof, by, through, or under the said Walker, would-warrant and defend: conditioned-and provided always, any thing herein contained to the contrary notwithstanding, that if the said James Rogan should fail-to comply with the conditions or any. part thereof, of a contain bond bear: ing even date therewith, and-thereinafter contained and described, then that conveyance and the estate thereby created should cease, determine and be of no effect; and-the said MartinO. Walker, or his legal representatives, should have thp right to re-enter and.take possession of the said premises, and sell and convey the same to any person or persons, and keep and retain all moneys paid thereon without recourse either at law or equity, .and purporting therein to contain and recite a copy of the said bond or obligation of-the said James Rogan to the said MartinO. Walker and Ellis Baker above mentioned and set forth.
    The bill further charges that on the 23d day of February, in the year last above mentioned, the said Walker, in pursuance of the agreement between him and Rogan above mentioned, purchased of the United States two tracts of land hereinbefore mentioned; that Walker.purchased the said tracts for the said James .Rogan, and that the payment of the money by.Walker.to the United States, for the said lands, was made by him on account of Rogan, and was the.true and only consideration of’ the bond of Rogan to Walker and Baker, and that on the 27th day of February in the year last mentioned, Walker duly acknowledged and delivered to Rogan his said deed of conveyance; and the Bill charges that thereby the. said James Rogan became seized in fee simple of the' two several tracts of land in his own right, subject to the right of Walker and Baker as incumbrances thereon, for all sums due or to become due on said bond of Rogan to them.
    The complainant states that he expects to prove, and chárges that the whole of the transaction of the executing and delivering of the bond of Rogan, and the conveyance of Walker, and the purchase of the two tracts of land by Walker, were all part and parcel of the agreement between Walker and Rogan, previously had between them, and that the true intent and object of that Agreement and those transactions, was the loan of money from Walker and Baker to Rogan, and the securing thereof;, and that Rogan’s bond, and the pondition or proviso of Walker’s deed, were intended by the parties thereto, to secure the payment of the loan and interest; and that Walker purchased the land for the sole purpose of securing the re-payment of the loan made by him to Rogan, and without any intention of acquiring and holding the same or any part thereof, for himself, or for himself and Baker; and that the condition or proviso in Walker’s deed, operates in law as a mortgage on the premises conveyed; and that it vims inserted in and made a part of Walker’s deed for the sole purpose of defeating the rights of redemption of the two tracts of land by Rogan, in case he should fail to pay the sums mentioned in his bond, when the same should become respectively payable.
    The Bill further charges that James Rogan remained •in the quiet possession of the two tracts of land from the time that he went into possession thereof, until and at the time of thé said transaction's of Rogan árid Walker, and has ever since continrially remained in such possession of .the N. E. qr. of Sec. No: 32, town 9, ránge 13, and ever remained continually in srich possession of the N. E. fractional qr. of Sec. No. S, town 8, range 15, until the conveyance thereof unto the complainant iri this suit as hereinafter mentioned, when the complainatit went into the possession, and has ever since remained in possession: And from the time that James Rogan went into possession thereof, until the present time, the possession of the two tracts by James Rógán and by the complainant has been continued uninterrupted and adverse to all the world. And that Walker and Baker, not either of them, have ever had possession of the said tracts or any part thereof. That at the time of the transactions between Walker arid James Rogán, the two tracts of land were almost wh'dlly unimproved, and of equal valued and that the tract still Owned and held by James Rogan, is an abundant security for one half of the principal and interest mentioned in the bond, and now remaining unpaid.
    That Janies Rogan has not paid any part of the principal, but has paid some part of the interest on his said bond. That on the 20th day of Jánuary, 1842, James Rogan and his wife conveyed the N. E. fractional quarter of Sec. No. 5, town 8, range 15, to John MastersonJ by warranty deed, and that on the 30th day of July, 1844, Masterson and his wife conveyed the said tract by warranty deed to the complainant; and that the deeds herein before mentioned, were all recorded iri the counties Wherein the said tracts of land were situated, soon after the dates thereof; that sometime in the fall of the year 1847, Walker instituted an action of ejectment against the complainant, for the recovery of the ppssession, of the tract last described, in the District Court of the County of Jefferson, which has been removed- to this Court, and is now pending therein, in which action Walker claims tille to the said tract of land by reason of the failure to pay the sum secured-by his bond- at the maturity thereof, and by no other claim, of title. The complainant claims and charges that by the said several- conveyances, he is siezed and possessed in fee simple absolute, of the tract last described, subject only to the right of Walker- and Baker as mortgagees thereof, to secure the payment of all sums due them on foot of James Rogan-’s Bond, equitably chargeable against the last described tract.
    And the complainant well- hoped that the said James Rogan would pay the amount due on his bond to Walker & Baker, and that in defa.ult thereof Walker & Baker would have admitted the right of complainant to redeem the last described tract of land and receive a release or satisfaction of the condition or proviso of the conveyance of Walker so far as it relates to the tract of complainant upon payment by complainant of the just proportion chargeable against the tract of complainant of the principal and interest due from James Rogan to Walker & Ba-er and would have accounted and agreed with complainant upon such proportion, or in default thereof would have admitted the right of complainant to redeem his said tract and receive a release or satisfaction of the condition or proviso of Walker’s deed upon the complainant’s paying the whole amount of principal and interest due from James Rogan to Walker & Baker on foot of said bond, complainant having always been and now is ready and willing and herpby offering to pay to Walker & Baker or to bring in-tp Court, such sum as shall be judged chargeable against the tract of complainant and necessary to entitle him to redeem the same, together with spph costs,, and charges., as are chargeable against him in this behalf.
    This Bill prays that an account, may be tajmn of the. amount due on the bond of.R.ogan, and that he be decreed to pay the same, and. in default of his .paying if, that the complainant may be allowedjo pay it or such part of it as. to the court may seem sufficient to entitle complainant to., redeem his tract, and that when complainant or James,. Hogan shall have paid such sum, as. may be decreed to Walker & Baker, that they maybe decreed to satisfy and. release the proviso, or condition in. the conveyance of ■ Walker, and thaj the sanie may be decreed forever satis-, tied and discharged, and that Walker & Baker may bo decreed to execute such other,and further assurance and, acquittance as to the Court shall seem just.
    To the complainant’s bill the defendant Walker, demur-^ red generally, and the demurrer was. by the Court over-., ruled. Whereupon the defendant Walker filed his bond, pursuant to statute and appealed to this Court from the. decision of the Circuit Court overruling his .said demur*... rer.
    
      A. Hyatt Smithj Counsel fpr the appellant,
    made an.d'ij argued the following propositions :
    This is a bill filed to redeem, charging that a . condition-., al deed is a mortgage.
    The first question is, what is the instrument set fortli. in the bill of complaint, is it a mortgage, or a conditional deed?
    Estates upon condition are divided into estates upon condition implied in law and estates upon condition expressed in deed.“4 Kent, 120.
    Conditions in debd are expressly mentioned in the contract between the parties, and the object of them is either to avoid, or defeat an estate; as if a man (to use the case put by Littleton) enfeoffs another in fee, reserving to liimsolfand his heirs a yearly rent, with an express condition annexed, that if the rent be unpaid, the feoffor and his heirs may enter and hold the lands free of the fe-offment. So if a grant be to A in fee with a proviso that if he did not pay twenty pounds by such a day the estate should be void. It is usual in the grant to release in express terms, to the grantor and his heirs, a right of entry for the breach of the condition; but the grantor may enter and take advantage of the breach by ejectment though there be no clause of entry. — 4 Kent, 122; Cake on Lit-tleton, by Thomas, vol. 2 p. 4; Littleton, Sec. 325,
    
    If A enfeoffs B of certain lands to have and to hold to the said B and his heirs upon condition that the said B "and his heirs do pay or cause to be paid to the aforesaid A and his heirs yearly such a rent, &c., in this case, ■without any more saying, the feoffor hath an estate upon condition.
    Coke says: “Here in this and the next two sections Littleton doth put few examples of words that make conditions in deed; and first such condition. This is the most express and proper condition in deed. — Coke on Littleton, 203; Littleton Sec. 320; 2d Bacon Tit-, condition 200.
    If A grant land to B to have and to hold to him and his heirs, provided that, or so as, or under this condition', that B do pay to A 10£ at Easter next; this is a good .condition, and the estate is condition a without any ¿for® 
      words. — -Shep. Touchstone, 235; Marginal p. 121; 3d Com-en, 220.
    And this (a condition) is sometimes contained in a testament or will; and sometimes in a deed. And where it is in a deed it hath no proper place assigned, hut it maybe in any part of the deed; howbeit for the most part it is placéd next after the habendum, if any-.-^-Skep. Touchstone, 228; Marginal 117i
    . And so also if the time of doing the thing be past as if any one make a feoffment to me on condition that if he pay me 10£ such a day the feoffment shall be void, and if he doth not pay me at the day, but doth die, and after by agreement between his heirs and me, he doth pay me the ten pounds, and I receive and accept it and thereupon I suffer him to enter and hold the land;, in this, cáse the condition is not performed, but I may enter upon and oust Him notwithstanding. Therefore, in cases of' this sort, either a new conveyance, a release; or a confirmation should be taken according to the .circumstances.--‘Shep> Touchstone, 269; Marginal, 143.
    The first position, the conditional character of the deed being established, the question arises are facts enough Charged in the bill to change this character and turn it 'into a mortgage. It will be borne in mind that the bill contains no allegation of title to the lands described in the complainant or his grantor, but naked occupancy of two quarter sections of land belonging to the’United-States, which gave to the grantor of complainant no-' right, he being a mere trespasser on the public domain, ánd further that the bill does not show such improvement's as would entitle him to prove a pre-emption right VÓ 'either of said quarter sections. — See pre-emption act approved May 29, 1830, and the act containing the same, approved June 22, 1838.
    Could the grantor of the complainant, then, by any agreement, create a mortgage on said lands 1
    
    This question can only be answered by an inquiry into, the necessary ingredients which enter into and- constitute a mortgage. A mortgage is the' conveyance of an estate, by way of pledge for the security of debt and to become void on payment of it. , The legal ownership is vested in,, the creditor but in equity the mortgagor remains the ac-, tual owmer until he is debarred by his own default or by judicial decree. — 1 Kent 4 134.
    Now it is called here a mortgage or mpftuum vadium., both for the reasons here expressed by Littleton, as also-to distinguish from that which is called vivum vadium., As if a man borrow a hundred pounds of another and, maketh an estate of lands, unto him, until he hath received, the said sum of the issues, and, the profits of the land, so, as,in this case neither money nor land dieth.
    pawn of land or tenement or any thing' immovable., ^xid or bound,for?rnoney borrowed to be the creditors for ever if the money be not paid at the day agreed on. — .. Tomlins' Diclion-fivy, 2$/, Mortgage and authorities there-, edited.
    
    As soon as the agreement fpr an absolute sale is execu-.. ted and the consideration paid, the vendor is in equity a. granger to the estate and any subsequent transactions between him and the purchaser cannot, it should seem,s have the effect of divesting the ownership from the purchaser and reinvesting it in the original vendor. There-, is no greater privity of estate subsisting between them, t^ran between two,, indifferent, persons, and no act, has been done to shift the ownership hack again. Then if the purchaser contract on the repayment of the purchase money, with interest, to reconvey the estate this can bo of no more avail in ■ equity, than if A should contract to ;sell the estate to B on payment of a sum of money with interest, if the purchase money is not paid, A may rescind his contract. — Coote on Mortgage p. 38; Sabine vs. Bar'rel, 1 Vin. 268; Gotrell vs. Purchase, Talbot 60; Endsworth vs. Griffith, 15 Vin. ab., 468.
    
      li not a mortgage as between grantor and grantee as above, clearly not as between James Rogan or his granted and defendant, because prior to the execution of the Reed, Rogan was a stranger to the estate, the title being in the Government, and defendant a purchaser of the ■■Government title. In the language of the above cases there was no privity of estate.
    If it-shall be contended that the facts set up in the bill show that Walker bought the land in question in 'trust for Jamds Rogan, and that Rogan could mortgage liis equitable title, the obvious answer is, that the trust was fully executed when Walker conveyed -the land to Rogan in pursuance of, and according to the terms of the agree1-tftent beftveen them and that all ¡the agreements which kjrehted the trust were merged in the conditional deed.
    
      ‘Finch Dynde, counsel for the appelleés,
    made and iargued the following points, to-wit:
    ■ 1st. Every person having any'interest in the mortgaged land, by grant or operation of law, can bring a bill to redeem. — 2 Story’s Eq., 290, 291. Story's Eq. PI. 470, 171. Day vs. Dunham, 2 John Ch. R., 181.
    And -the bill of '-complainant ‘has all the .proper parties. 
      Story’s Eq. PI. 170,171. 2 Greenleaf’s Cruise 27, sec. &. 2 do. do., 189, note 1. 2. Story's Eq., 1023. 4 Kent's Comm, 162 and 164.
    2d. The bill avers offer to pay; this is sufficient — tender unnecessary. — 3 Hoff marts Oh. Pro., 266. JYovo-sielski vs. Wakefield, 17 Ves. 417. Petrine vs. Dunn, 4 John Ch. R., 140.
    
    3d. A deed made for lands-, to be absolute on the payment of certain notes, but in' default of- payment to Be void, is to be considered as a mortgage. — 2 Qreenleaf's Cruise. 79. Carr vs. Holbrook, 1 Mis., 240.
    4th. The reverse of the last proposition also true; a conveyance given as a mortgage', but to become a deed after a failure without equity of redemption will be always held subject to the equity of redemption. And the reasons of both propositions are the same. — ^Johnson vs. Gray, 16 Serg. $■. Rawle, 361. Stover v$. Stoper, 9 do. 434.
    . 5th. An absolute deed of lands accompanied by astip-ulation, either, in or out of the deed, that estate shall be reconveyed on payment of money, is a mortgage. — Ers-Jcine vs. Townsend, 2 Mass. 493. Taylor vs. Weld., 5 do 109. Cray vs. Ransom, 8 do 159. Harmon vs. Phillips, 12 do., 456. Scott vs. McFarland, 13 do 309. Eaton, vs. Whiting, 3 Pick. 181, Hughes, vs. Emmons, 9 Wheat, 489. 5 Cond. R. 648.
    And this even when there is no written defeasance.
    
      Lane vs. Shearfi 1 Wend 433, Watson ys. County, 14 do 63. Smith et.al., vs. Sachett et al. 5th Gill. Rep. 534.
    If the transaction be a security, whatever be the form, its equity will hold it a mortgage, Jfagg. vs. Mann, % Summer 487, Parks vs, Hale, 2 Pick, 211.
    
    
      And so even if unaccompanied by any personal collator iC^.1 engagement for the rponoy, — -Rice vs. Rice, 4 Picke 349.
    If it is doubtful whether the parties intended a conditional sale, or a mortgage, courts of equity will regard it qs a mortgage, such construction being the more just and equitable, tending to prevent oppression. — Poindexter vs. McCannon, Dev. Eq. R: 575. Manncr vs, Miller, 5 Lit. 84. 2 J. J. Marsh, 47J. Edeyton vs, JJaryer, 3 do 354. Crane vs. Bonnell, 1 Oreen, Ch, II, 354.
    And in order to ascertain the intention of the parties, Courts will look not only to the deeds and writings, but to all the .circumstances of the contract, apd for this purpose will'receive parol evidence. -r-Robertson vs,. Campbell, 2 Call 421, King vs. Jfewman¡, 2 Munf. 40. Thompson vs. Davenport, 1 Wash. 125.
    6th. Once a mortgage always a mortgage.-. — 1 Bowel' on Mortg’s 127a, 116, 117, note 7th, No agreement between the parties cap take away the right of redemption |nequity. Powel on Morig’s, 11.6, 117, note, 2 Story’s Eq., 287. 4 Kent 142 ‡0 144,
    8th. The jurisdiction, in case .of an injunction to stay proceedings at law, is in the Court wh.ere the proceedings are pending, and not the Court which has jurisdiction of the person or the thing. — Dunlap vs. Stetson. 4 Mason 349, per Story J- 360,
   By the Court.-

Hübbelp, J,

The Circuit Court of Jowa County overruled a general demurrer, filed by the defendant Walker, to the plaintiff’s bill. From this decision, Walker appealed. The allegations in the bill are ad-saitted. It acts forth that at, or soon before the land sale, ’Q Milwaukee, in 1838, Martin’O. Wdlkéráppeared in the town of Milwaukee, and gave'out-and'lcausedko be given out among the :settlers on 'the public‘lands, that he had large sums of money, belonging to hiniself and Ellis Ra-ker, which he, Walker, proposed to advance and lend on behalf of himself and Raker to purchasers of said lands on the security of the lands, ‘on the following terms and conditions: lie, the said W. would purchase at the land sale, in his own name, at the -minimum price of one dollar and a quarter per acre the tract- or tracts of land which the borrower of the money from him desired to purchase-, and take as security for the loan, the bond of such borrower, to himself and Raker, in a penalty, conditioned for the payment of double the said minimum price, payable at a future day to be agreed upon, with interest thereon at 3 i per cent, per annum; and would thereupon con* vey such tracts of land to the borrower, by warranty deed, with a condition, or proviso-, annexed and forming part of the deed, that if the grantee should fail to comply with the condition of such Bond, then such con--veyance and the estate thereby created, should cease, de* termine, and be of no effect; and the said Walker or his legal representatives should have the right to enter and take possession of the premises and sell the same and keep and retain the moneys paid therefor, without recourse in law' or equity.

The bill further states that in 1836-7, James Rogan went into possession of two parcels of land described as N. E. fractional quarer of Section Wo. 5, in Township Wo. 8, of Range 15 East, in the County of Jefferson, and the W. E. quarter of Section No. 3d, of Township No. 9, in Range No. 15, in the County of Dodge, in Wisconsin, ■'being wild lands of the United States, arid remained in ■peaceable possession thereof’until the land sale; that he went to the land sale to purchase said tracts; hut finding himself short bf the neces'sary funds and hearing of 'the proposals of Walker, he applied to Walker for a loan'of ■mondy, for that purpose; and Walker agreed to make the 'loan, bn the terms before set forth: that in pursuance of this agreement Rogan did, oisfthe 18th of February 1839, ■execute and deliver to said Walker his bond bearing date 'on that day, in the penalty'bf $1659.14, te be paid to said Walker and Ellis Baker, their executors or assigns, find 'conditioned for the payment to them of the sum rif \$829.58 on the "18th of February 1843, and annually the the sum of 29.04 as interest, and for the payment of'all 'Saxes, &c.

The bill further states,'that in .pursuance of said agree'-ment, Walker, '-on the 23d of February '1839, purchased of the United States, the aforesaid tracts, for the said Rogan, and that the payment of the purchase money to the United States, was made by the said Walker, '!on ac- ' count of said Rogan, •and was the true and only consideration for the Bond of said Rogan to Walker and 'Baker: 'and that on the 27th bf February, 1839, Walker deliver'ed to Rogan a'deed of the said 'lands, of the tenor and ■ purport aforesaid, and'duly acknowledged.

And the bill'charges that James R&gan thereby béo&me 'seized in fee simple absolute of the said tracts, subject to "the right of Walker and Baker, as incumbrancers thereon, to the payment of all sums due or to become due on said •Bond. It further states that James Rogan had paid a part of the interest, but none of the principal of said Bond, 'and that he continued in.possession of the INF. E. fraction-^1 quarter of Section 5, Town 8, Range 15, until the 20th of January, 1842, when he and his wife conveyed all their title and interest therein, to one John Masterson, by warranty deed; and that on the 30th of July, 1844, said, Masterson and wife, by a like deed, conveyed the same to the complainant. And the Bill prays that an account may be taken of the amount due on the bond, and that the complainant may be allowed to pay the whole or such part thereof as to the court shall seem proper, and redeem; the premises.

In view'of the facts set out in the Bill, there can be no question as to the equitable relation between the parties. Walker, for himself qnd Baker, agreed to loan James Rogan a sum of money, and to enter the land for him; and took his Bond for the sum loaned ancl speh interest qr commission, as was agreed on between them, and then entered the land, on account of Rogan, in pupspance of the agreement, taking the title in himself. The qualifier! deed afterwards given to Rogan, must be regarded as a part of the same transaction, in fulfilment of the agrees ment; and the whole, together constitutes Walker & Ba-, ker, at most, but incumbrancers upon the estate, for the the amount secured by the bond. They have an undoubted equitable interest, or lien, either for the whole sum, or for the amount actually advanced, with lawful interest. And James Rogan and his grantees, have the whole estate and are the real owners, subject to the extinguishment of this lien. It is immaterial whether the deed is forfeited or not; since its forfeiture would only throw back the title into the hands of Walker, for the purposes originally intended. As the facts are now presented, it is impossible to separate the parts of the transaction, This is not the case of a naked conditional deed; and none of the •authorities cited by the learned counsel for the respondents, are at all applicable.

The Circuit Court was right, in overruling the demurrer to the complainant’s bill. But as the case may again be presented to this Court, upon the pleadings and proofs, and under a different showing of facts, I forbear to enter into a discussion of the principles here announced, or to cite the authorities sustaining therq.

Appeal dismissed with costs.  