
    Alpheus Carey versus Jonathan Rawson
    An agreement was made, under seal, that a deed to be executed should be deposited with a third person, until a sum of money, advanced by the grantee to the grantor, should be repaid, or until a day specified; and in default of such repayment at the day, it should be delivered to the grantee, who might thereupon enter, Sic. — It was held that such deed, together with the agreement in writing, constituted a mortgage.
    This was a writ of entry sur disseisin, in which the demandant counted upon his own seisin, and upon a disseisin by the tenant.
    The tenant prays to be heard in chancery on the suit, and avers that at the time when the conveyance, under which the demandant claims the land described, was executed, viz., on the 7th of April, 1808, the demandant made and executed to him a deed of defeasance, which he sets forth.
    It purports an agreement between the parties, that Raivson, in consideration of 2000 dollars, to be paid him by Carey, *on Rawson’s executing a conveyance of the land, &c., to him in fee, will execute such a conveyance; that Carey will thereupon pay him that sum ; that the deed of conveyance shall, after being registered, be deposited with J. Q. Adams, Esq., until the said sum shall be repaid with interest, or until the 7th of April, 1810; and that, in default of such payment, the deed shall be delivered to Carey, who may thereupon enter upon the land, and from thence take the profits to his own use.
    The tenant then avers that the conveyance, in the said deed of defeasance mentioned, is the same, under which the demandant claims the demanded premises, and that, by the same deed of defeasance, the said conveyance became a mortgage, and a conveyance on condition to be void on payment of the said sum of 2000 dollars with interest on or before the 7th day of April, 1810 ; and he confesses the forfeiture of the condition, &c., and, according to the statute in that case made and provided, prays to be heard in chancery touching the same, and that judgment may be given in chancery, that he may redeem the same by paying the just debt and damage due thereon.
    To this answer the demandant demurs generally, and the tenant joins in demurrer.
    
      T. B. Adams, of counsel for the demandant,
    thought this case distinguishable from all that had passed under the consideration of the Court, the defeasance being prior to the deed of bargain and sale. It was the intention of the parties to the transaction to avoid the inconveniences attending on a mortgage. The demandant wished that intention effected; but Adams discovered no great confidence in the point.
    
      Whiting for the tenant.
   The Court,

without hesitation, decided that the two deeds must be treated as parts of one transaction, and together constituted a mortgage ; and that the tenant, having confessed the forfeiture, should be heard in chancery. 
      
      
         [Flagg vs. Mann, 2 Sumn. 486.— Van Buren vs..Olmstead, 5 Paige, 9. — James vs. Johnson, 6 Johns. Ch. 417. — 2 Cow. 246.— Day vs. Dunham, 2 Johns. Ch. 289. — 15 Johns. 555. — Hicks vs. Hicks, 5 Gill & Johns. 76. — Edrington vs. Harper, 3 J. J. Marsh. 356. — Harrison & Al. vs. The Trustees of Phillips Academy, 12 Mass. 456. — Rice vs. Rice, 4 Pick. 349.—Newhall vs. Burt & Al. 7 Pick. 157.— Sed vide Flagg vs. Mann, 11 Pick. 475. — Bodwell vs. Webster, 13 Pick. 411. — Ed.]
     