
    Daniel Niven, appellant, against Chauncy Belknap, respondent,
    
    N applied toB to purchase a [repossession of B. and was h^that of executed by to nearly value, had the disposal of it, an(j an ag.re¿, ment was t>e-cTiTlhe presence ofB, for the absolute purchase of the farm, and 0, thereupon, executed á conveyance in fee, to N, who afterwards took possession of the farm, as owner, and made considerable improvements. About ten j’ears afterwards B, the mortgagor, made an absolute conveyence of the farm to his son, who was a neighbour of N. N filed a bill, quia ti-met, against Band bis son, praying that they might discover the title they pretended to have to the premises, and might he decreed to renounce such pretended claim, or he perpetually enjoined from asserting it, to the prejudice of the complainant: On an appeal from the decree of the Chancellor, dismissing the bill, it was held, that the conduct of B, and his.presence and silence at the time of the agreement made between N and B, for the absolute purchase of the farm, amounted to an implied assent to the sale of the equity of redemption, and debarred him or his assignee from asserting such claim; and the respondent was ordered to release all claim or equity of redemption to the appellant, or that the Chancellor should award a perpetual injunction in favour of the appellant.
    
      ' t The appellant, in September, 1804, filed his bill in the court of chancery against the respondent, and his father, Abel Belknap, praying, “that the said Abel Belknap and Chauncey Belknap, might set forth and discover what title or claim they, or either of them, had, or pretended to have, to a farm consisting of about two hundred acres of land, situated at Newburgh, in the county of Orange, previously purchased by, and then in the actual possession of the appellant: And that the said Abel Belknap and Chauncey Belknap, and all others claiming under them, or either of them, might be decreed to renounce and release to the complaint, all the right and claim, or pretence of right or claim to the said farm; or, that they might be enjoined from asserting or setting up the same, to the disturbance or injury of the said Daniel Niven, or to his title to the said farm or tract of land and premises, with the appurtenances; and that the said complaint might have such further or other relief in the premises, as equity and good conscience might require.”
    
      Abel Belknap, one of the defendants in the court below, died, without answering the bill, and an order was entered for the continuance of the suit against the defendant, the present respondent.
    From the pleadings and proof read on the hearing of the cause, the following facts appeared : Abel Belknap, the father of the respondent, being the owner of the property in question, on the first day of September, 1769, mortgaged it in fee, to one Christopher Hey sham, to secure the payment of 300 pounds, with interest, on the 1st day of September, 1770. In 1783 Abel Belknap became indebted to one John Brush of Huntington, on Long-Isl- and, in two sums of money, for which he gave to Brush his two bonds, one for 800 pounds, and the other for 200 pounds, payable with interest, at 6 per cent. In October, 1786, A. Belknap, to secure the payment of these two bonds, gave a mortgage of the same property, to Brush, in which mortgage was inserted a power to Brush, to sell the mortgaged premises, at public sale, or otherwise, to raise the money, in case Belknap failed to pay it, according to the condition of the mortgage. Christopher Heysham having filed his bill in the court of chancery, to obtain a sale of the mortgaged premises, for the payment of his debt, a decree was obtained, on the 18th day of January, 1787, for the sale of the property, in six months, by one of the masters, for the payment of the debt due to Heysham. Belknap being unable to pay the money due Heysham, and wishing to prevent a sale of the property, under the decree, applied to Brush to pay the money, and take an assignment of the bond, mortgage, and decree. Accordingly, in May, 1739, Brush paid Heysham 3521. 15s. 2d. being the principal and interest due to him, and Heysham assigned to Brush the bond and mortgage, and the decree, which assignment was subject to the proviso for the redemption contained in the mortgage. About the same time Belknap agreed to become the tenant of Brush, on the mortgaged premises, or to cultivate the same on shares, until the property should be sold ; or, as was testified by another witness, to remain on the farm until he could find another place to remove to, and to carry away the crops, but not to cut any timber. There appeared to have been due about this time from Belknap to Brush, and secured by the mortgages on the farm, about 1060/. or 10401. as mentioned by one of the witnesses; though another witness stated the sum due to be 1,200Z. The appellant, in his bill, alleged the sum due to exceed the value of the farm ; but the witnesses, on the part of the respondent, stated the value of the mortgaged premises, in 1789, to be from 1,500/. to 2,000/. About the beginning of the year 1790, the appellant wishing to purchase the farm in question, and not knowing any thing of the mortgages, applied to Abel Belknap, who was in possession, and whom he supposed to be the owner; but who would not give the price asked for it by' Belknap, who informed the appellant, that he (A. B.) had not the power of disposing of the farm ; that he could neither fix the price, nor the terms of payment, for that he had given it up to John Brush, in satisfaction of a mortgage or mortgages given to and held by Brush, who had the entire disposal of the farm, and was to make the best of it, to satisfy himself for the moneys due to him, Oi* words to that effect.” Abel Belknap offered to aocompany the appellant to the house of Brush, on Long-Island, to see whether he would agree to sel! the farm, and said, that he should advise Brush to sell. It appeared, that at the time of the conversation between the appe]Ia.nt and A. Belknap, that Brush had advertised the premises for public sale, by virtue of the mortgage; that Belknap had requested Brush not to sell the farm at public auction, but at private sale ; and that he would bring the appellant as a purchaser. Accordingly, a few days after, A. Belknap accompanied the-appellant to the house of Brush, where, in the presence of A. Belknap, Brush agreed to convey the farm, absolutely, to the appellant, at the price then agreed on ; and in May, 1790, Brush, in pursuance of that agreement, executed and delivered to the appellant, an absolute deed of conveyance, in fee-simple, of the said farm, for the consideration of 1,040?. paid by the appellant to Brush. This deed contained covenants of warranty, and also to indemnify the grantee for all improvements to be made, in-case he should be evicted, in consequence of any equity of redemption.
    At the same time, Brush assigned to the appellant the mortgage from Belknap to Hey sham, and the decree thereon ; and also the mortgage from Belknap to Brush. The assignments purport, also, to have transferred to the appellants the bonds, to secure which the mortgages were given. The appellant asserted, in his case, that the bonds were never delivered, or seen by him ; but there was ño evidence of the assertion.
    In the spring of the year 1790 the appellant took possession of the farm, as absolute owner, and has ever since held the-same, and"has expended considerable sums in buildings, fences, and various other improvements. It also appeared, that Abel Belknap let the appellant into possession of the premises, except a small part of the dwelling house, which Belknap was allowed to occupy, until he could conveniently remove his family. AbetBeU knap being in impoverished circumstances, in 1790, went to reside at Norwalk, in Connecticut, where he resided several years, and returned toNeivburgh, some timein the year 1798, or 1799, where he continued until his death. It appeared from the testimony of several witnesses, that Abel Belknap must have known, that the appellant was the absolute purchaser of the farm, soon after the conveyance from Brush, and that he held and possessed the same as absolute owner. In December, 1799, A. Belknap executed a deed to the respondent, for the said farm, for the consideration of 3,000 dollars, as expressed in the deed, and which contained the usual covenants. In 1803, A. Belknap admitted, that he had given the deed to the respondent, but excused himself, by saying, that it Was on account of his poverty, and that he did not think it unlawful, and alleged in his justification, that Brush had taken advantage of his situation, and compelled him to consent to the sale of the farm for less than its value. The respondent in his answer admitted, that the true consideration was not expressed in the deed to him, and was inserted by the person who prepared the deed, under a belief, that the sum expressed was immaterial. It appeared further, that the respondent had assisted to maintain his father, Abel Belknap, but the amount advanced was not shown, nor the real consideration of the deed to the respondent.
    The cause was heard before the CHANCELLOR in March, 1806, and in August, the following decree was finally pronounced.
    <c This cause having heretofore been heard, and the opinion of the court having been given that the complainant’s bill was not sustainable, but it being insisted on the part of the defendant, that he was entitled to redeem the mortgaged premises, in the complainant’s bill of complaint described, whereupon, further day was given to the parties on that subject, and Mr. Harison, counsel for the defendant, consenting to the dismissal of the said bill ; thereupon, it is ojrdered, adjudged, and decreed, and his honour, the Chancellor, doth order, adjudge, and decree, by the authority of this court, that the complainant’s bill of complaint be dismissed, with costs, to be taxed, and that the defendant have execution of such costs, against the complainant.” From this decree, the complainant appealed to this court.
    
    
      S. Jones, jun. and J. Radcliff, for the appellant
    1. That there was an absolute purchase of the whole fee, and not of a mortgage interest, by the appellant, is evident from the whole current of the testimony. The farm was put up for sale, and when the appellant applied to A. Belknap, who was in possession, he was referred to Brush, as having all the encumbrances, and as the sole owner. The agreement for the purchase was made in the presence of A. Belknap, and the conveyance executed by Brush, to the appellant, shows that it was a purchase of the whole estate. If Brush had not supposed himself the absolute owner, why should he have executed a deed, with all the covenants usual, in the sale of an absolute estate, when a mere assignment of the bonds and mortgages would have been sufficient to have transferred his interest, as a mortgagee ? That the bonds and mortgages were also assigned, can make no difference, as they might have been supposed of use, in supporting the title. The consideration paid was for the full value of the farm. The entry of the appellant, his continued possession, and the alterations and improvements made by him, of an expensive and permanent nature, all show with what intent, and under what character, he took possession. The acts and conversations of Chauncey Bel-
      
      Jcnaj), after the sale, strongly confirm the idea of an absolute purchase.
    2. A release of the equity of redemption may be presumed from the lapse of time, and the presumption may be supported or defeated by circumstances. Niven had been in possession above 15 years, as absolute owner. This fact alone, to a court of equity, furnishes a strong presumjition of a release; and it is fortified by all the circumstances of the case. A. Belknap agreed to be a tenant to Brush, and to pay rent, but not to cut timber on the farm. He told the appellant, when he came to look at the farm, that he had no power to sell, and that Brush had the entire disposal of it. An agreement for the absolute purchase was made between the appellant and Brush, in the presence of A„ Belknap. When a conveyance was afterwards made, in pursuance of that agreement, the appellant took possession of the farm, as absolute owner, and has since continued in possession, exercising every act of ownership. In the case of Jackson, ex dem. Goose and others, v. Demarest,
      
       a regular re-entry was presumed, after 14 years’ possession ; and in Smith v. Wilson, decided in January term, 1803, the court presumed an affidavit to be filed, after the lapse of 12 years. In Bergen v. Bennett,
      
       16 years having elapsed, after a sale, under a power contained in a mortgage, the court presumed the execution of that power, and the proceedings under it, to be regular, and would not allow the heirs to redeem.
    3, A- Belknap máy be considered as substantially a party to the agreement of sale, between the appellant and Brush, as he was present at the time the agreement was concluded, and made no objection. It is true, the agreement was liot in writing. But Brush appears to have been the agent of A. Belknap, and authorized to transfer the right of the mortgagor. If, then, Brush acted as the agent of A. Belknap, it was not necessary that his power should be in writing. A deed executed by parol authority, is not within the statute of frauds; for an agent need not be authorized in writing.  Again, as A. Belknap was privy to, and tacitly consenting, to the absolute sale by Brush, to the apellant, he ought never to be allowed to set up any claim, in opposition to that of the appellant.
    4. The power in the mortgage, from A- Belknap to Brush, was to sell at public auction, or otherwise. It was a power, then to sell at private sale. The formalities prescribed by the statute, as to the execution of these powers, are required, for the benefit and the protection of mortgagors, who may waive that benefit. In the present case, there was an express waiver of any sale at public auction ; for A. Belknap consented to the sale from Brush to the appellant. The power has been executed, and that, too, in a manner approved by the mortgagor. Shall he, then, be allowed, at this time, to object to the salo ?
    5. But it will be said, that the respondent is a purchaser without notice. In his answer he does not deny a notice ; and one of the witnesses has deposed, that the respondent became acquainted with the facts soon after they took place. The situation of the respondent, a neigh-bour to the appellant, was such, that in law, he must be considered as charged with notice. The appellant entered on the premises as absolute owner, and exercised acts of ownership; and these acts, so well known to the respondent, ought to have put him on the inquiry, as to the title of the appellant.
    
    6. There is no evidence of the consideration of the deed from A. Belknap to the respondent. It is a mere voluntary conveyance, accompanied, with strong circumstances, indicative of fraud. It is expressed, for a consideration, which, as has been proved, was not paid; it takes no notice of the morrgages ; and the pretexts and motives, assigned by the parties, mark the nature of the transaction.
    7. The appellant has been suffered to remain so long in possession, and to make such great and valuable improvements, that it will be very difficult, if not impossible, to take an account. This is a further reason for not allowing a party to redeem, who has thus suffered another to go on making improvements, without giving him any notice of a claim.
    
    
      Evertson and Harison, for the respondent.
    The respondent, in this case, comes before the court as a mortgagor. Mortgagors are, in some degree, considered as persons under duress, and courts ofequity extend their care and protection to them as well as to minors, to prevent any undue advantage from being taken of their situation. No conditions are allowed to be imposed on a mortgagor to defeat his right of redemption ; that right cannot be transferred or taken away, without a solemn deed or decree of the court. Thus, if a mortgage contains a clause that the mortgagor shall have a right to redeem in his lifetime, still, in case of his death; his representatives may redeem, because it is no hardship on the mortgagee, if he receive his principal and interest. If the mortgagors are entitled to favour and protection, will this court resort to circumstances of a dubious nature, or to the lapse of 14 years, to destroy the right of a mortgagor, in opposition to so salutary a principle ? There is no pretence that there has been any foreclosure of the equity of redemption in this case. The decree in favour of Heysham has never been carried into effect.
    Then, has there been a release of the equity of redemption? It is said, that such a lease is to be presumed. But a conveyance is never to be presumed, except under very strong circumstances. No lapse of time, short of 20 years, has been deemed sufficient to support a presumption of a release of an equity of redemption. This period has been fixed, probably, from analogy to the statute of limitations. Yet nothing but a continued possession by the mortgagee, and a silence on the part of the mortgagor, for 20 years, has been allowed to afford this presumption of a release. In the case of St. John v. Turner,
      
       there was an acquiescence by the mortgagor, for a period of 24 years. The case of Jackson, ex. dem. Goose and others, v. Demurest, related to a matter merely in pais, a re-entry by the lessor for the. non-payment of rent. The case of Jackson, ex dem. Smith, v. Wilson, cannot apply to a case like the present. In that case there was a regular judgment, and the court presumed only, that the previous course of legal proceedings, such as the affidavit of an insufficiency of distress, and a possession, were re~ gular. So in Bergen v. Bennett, the presumption was merely as to the regularity of the notice of the sale, which was supported also by other circumstances. The court, in that case, expressly recognised the principle, that 20 years’ possession by the mortgagee, as owner, is requisite to bar the equity of redemption. The appellant, therefore, could take no greater estate than existed in Brush, which was that of a mortgagee,  An absolute deed for the premises, from the mortgagee, or his assignee, is en? titled to no weight as evidence of a release of the equity of redemption to him. When the appellant made application to A. Belknap, to make the purchase, the mortgages were mentioned to him. This was notice to the appellant, of the nature of Brush's title. The reference to Brush was natural, when the question as to the payments was asked. The taking possession of the premises, after-wards, by the appellant, was perfectly consistent with the -character of a mortgagee, or the purchaser of a mortgage. Every mortgagee takes possestion as owner, and if he makes improvements, he must be paid for them, when the mortgagor comes to redeem. It is certain, that when A. Belknap, and the appellant, went to see Brush concerning the purchase, the latter was not the owner. The deed from Brush to the appellant, contains a special covenant to indemnify the latter against any equity of redemption. Why insert such a covenant, if the equity of redemption had been released? This is a strong circumstance, arising from a written document, to repel any presumption of a release. Why did the appellant take an assignment of the bonds and mortgages, unless he was purchasing a mortgaged interest ? These deeds, then, afford evidence against the presumption of a lease, more powerful than the testimony of witnesses, or the fallacious evidence resulting from memory, or imperfect recollections of men. But it may be nsked, if A, Belknap ever intended to release the equity of redemption, why was not that intention executed? Alibis acts are perfectly consonant with the idea of his having a right to redeem; but the manner in which his declarations were obtained ought to prevent them from being used against him. One fact may be inferred, because, without it another fact could not have existed; but it is very different to infer that a thing has been done, when all the other facts in the case may well exist without its performance.
    Again, it is said, there was an agreement for the sale of the equity of redemption, partly executed. But the agreement itself must first be presumed. An agreement not to redeem, would not be binding on the mortgagor. It is not pretended that there ,was any agreement, nor is any agreement proved. Though stated in the bill, it is denied in the answer. An equity of redemption is an interest in lands; and by the statute of frauds, no interest in lands can be transferred unless by writing signed by the party, or his agent lawfully authorized by writing. In some cases, where there is no danger of fraud or perjury, courts of chancery give effect to parol agreements. If a bill is filed for the performance of a mere parol agreement, the defendant may plead the statute, or demur to the bill. If the complainant allege a part performance, the defendant may admit the agreement, and deny the part performance. Here the agreement is denied by the respondent; and will this court admit parol evidence of that agreement against the express intent and very words of the statute ? But it is said, the agreement was executed by Brush as agent; and the decision of an English chancellor has been cited to show, that the authority of an agent need not be in writing. That decision is against the clear language of the act ; and if it were not so, yet where a sale is made by an agent, the deed ought to be executed by him as agent. In the present case, there is no appearance of any agency whatever. The appellant, in his bill, states a writing only between him and Brush; and are we to presume an agreement between them and Belknap, who was not a party to that writing ? But suppose an agreement in writing, there is no evidence of any consideration. Brush was to receive 1,G5(U, but A. Bel-knap has nothing for his interest. Had a written agreement to release the equity of redemption been pleaded, R would be of no avail, unless it contained a consideration. Such an agreement would be a nudum pactum, and not binding on the party. A court of equity would not permit an agreement to be enforced, by which the mortgagor was to give up his equity of redemption without any consideration, and still remain liable to be sued on his bond in a court of law. Again; acts of part performance must be clear and unequivocal, and such as could not be presumed to have been done, unless in pursuance of an agreement. Here the acts of the appellant are perfectly consistent with the character of a mortgagee, and with the idea of an existing equity of redemption in the mort- ° 1 J 1 SaS'0i'-
    . Again; it is said, the power of sale in the mortgagee, was a power to sell at private sale. But a sale under a power contained in the mortgage, derives all its force and validity from the statute. The first act which declared sales under such powers valid, if recorded, was passed in 1774. Without such an act, a court of chancery would not suffer such powers to he effectual against mortgagors. The legislature, however, imposed certain restraints, as that the party executing the power must he of the age of 25 years at least; that the power should be.acknowledged or proved, and recorded; and that the sale should he at public auction, pursuant to a public notice of six months. If the mortgagor, by his own consent to a private sale, could remove all the restraints imposed by the act, why do we find so many decrees setting aside sales, not made strictly according to the directions of the statute ?
    The deed to the respondent is a valid conveyance. The sum inserted was accidental or nominal. Any consideration would have been sufficient. Even a mere voluntary purchaser may redeem. The language and con-duet of the respondent has been perfectly consistent with the rights of the parties. He was not bound to declare his intention to redeem; and his silence could not mislead the appellant, nor have induced him to make improvements, siuce the appellant was certain of being indemnified, either by order of the court, when the mortgagor claimed a redemption, or by Brush, on his covenant. The respondent stands on the same ground with Abel Belknap, and if considered as a purchaser without notice of the conveyance to the appellant, his claim is better. There is no proof of any notice to him, and it is denied in his answer. The difficulty of taking an account is no valid objection against the redemption. It is a difficulty ttohich must exist, in a greater or less degree, in every case where there has been a long possession, for near 20 years, by a mortgagee.
    
      Riggs, in reply;
    From the whole course of testimony in the cause, it is clear, that the intention of the appellant was to purchase the fee, and not a mortgage interest; and that the agreement and subsequent conveyance by Brush, was for an estate in fee. The covenant inserted in the deed was general, against all claims and equities of redemption, not against the particular claim of A. Belknap* The assignment of the bonds and mortgages was made on the next day after the deed, and it is not an unusual thing to take an assignment of a bond and mortgage to attend the inheritance, and secure it from any intervening encumbrance. Those documents, therefore, furnish no evi-' dence in favour of the respondent. Again; the consideration in the deed to the respondent is admitted not to be the true one, or merely nominal; and it is incumbent on the respondent to show the precise consideration, otherwise, the conclusion must be, that there was none. It is said, that there can be no presumption of a release, unless there has been a possession of twenty years. But that period of possession is not taken upon the ground of any presumption of a release; it is a technical bar set up from analogy to the statute of limitations. ,N° precise time has ever been fixed for the limitation of an equity of redemption. The presumption of a release is notan inference of fact, but an inference of law, in furtherance of right. One circumstance may not be enough to support such a presumption, but a variety of circumstances combined •may be sufficient for that purpose. In the present case, from the variety of facts disclosed, a release of the equity of redemption ought to be presumed, because such a release ought to have been given, and it is in further- - . anee ot right. Again; it is said, that the opinion ox Lord TZldon that it is settled, that the authority of an agent need not be in writing, is against the very words of the statute, and ought not to be regarded. And are not all the cases excepted out of the statute by the acknowledged decisions of the courts against the words of the act? But if an authority in writing is required, that authority is to be found in the power inserted in the mortgage. To this it has been answered, that the power was only to sell at public auction, according to the act. It is a universal principle of law, that where any thing is directed to be done for the benefit of another, he may waive or dispense with the performance. If the mortgagor had requested the mortgagee to sell at private sale, and not at public auction, could he afterwards be permitted to object to a private sale?
    The bill filed in this cause was not a bill for a specific performance, or a foreclosure; it is a bill quia timet, stating that the complainant was drawn into a purchase by a belief that the equity of redemption was released; and praying that the defendant might do what ought to have been done, or be perpetually enjoined from acting to the prejudice of the complainant. The statute of frauds can never be set up against relief of such a nature, sought in this way.
    
      
       Accident has prevented the insertion of the opinion delivered by the chancellor, which contained the reasons assigned by him for this decree. R.
    
    
      
       2 Caines, 382.
    
    
      
       1 Carnes'1 Cases in Er¡ ror, 1. 2 Vern. 418.
    
    
      
       1 Pern, 186. 2 Pern ISO. 239. 1 Vi ve»'/. 95. 9 Mod 35. I Broma, C. C. 365.
    
    
      
       1 Aik. 490. Ambler, 230. 2 Vesey.jun. 437,
    
    
      
       Shepherd’s Touch Stone, (a hook generally cited.) is considered the work of Justice Doderidge, 2 John. Bep. p. 459. — Quere ?
    
    
      
      2 Pern.418.
    
    
      
      
         Powell on Mortg. 4th ed. pp. 146.— 151.
    
    
      
       3 Mh. 313.
    
    
      
       2 Pent.418.
    
    
      
       2 Caines, 382.
    
    
      
       The mortgagor, notwithstanding the mortgage is deemed seized, and is the legal owner of the land as to all persons, except the mortga. gee, and his representatives. Hitchcock et al. v. Harrington, 6 John. Rep. 290.
    
    
      
      
        Powell on Morfg. M.2S>. 2 Fonbl. 264-,
      
    
    
      
      
        Pawc.ll on 4th
    
    
      
      
         Twenty years’ possession by a mortgagee, without acknowledgment .or account, is a bar to the equity of redemption, unless the mortgagor can bring himself within a premiso in the •statute of limitations.— Demarest v. Wynkoop, 3 J. C. B. 129.
    
   Thompson, J.

In considering the case presented by this appeal, I shall pass by any examination of the peculiar nature of the bill brought in the court below, because the argument of the cause appears to have embi'aced as broad a scope as if it had been a bill filed by a mortgagor to redeem his mortgage. And in this view of the subject, Several questions have been raised, and urged before this court, for the purpose of showing, that the equity of redemption, claimed by the respondent, ought to be consfdered as extinguished. The conclusion to which I have arrived, after an attentive examination of the ease, renders it unnecessary for me to take notice of all the points which have been raised. I shall confine myself to those which relate to the conduct of Abel Belknap, to induce the appellant to make the purchase from Brush, and the subsequent agreement between Belknap, Niven, and Brush, which was afterwards carried into execution, by a delivery of the possession of the mortgaged premises to the appellant.

The difficulty here presented arises from the statute of frauds, which declares, that uo interest in land shall be granted, or assigned, but by deed or note in writing. This is, undoubtedly, a wise and beneficial law. But, in the language of adjudged cases upon if, it may be justly said, that to allow a statute having the prevention of fraud for its object, to be interposed in bar of the performance of a parol agreement, in part performed, would be evidently to encourage one of the mischiefs which the legislature intended to prevent. It is therefore, an established rule, that a parol agreement, iu part performed, is not within the provisions of this act. (Fonb. 182. note. 1 Ves. jun. 333.) The relief against the statute in these cases of part performance, is founded on the fraud and deceit which usually, characterize the circumstances. Whether it was expedient, in the first instance, to make fraud a ground for giving relief, so as to enforce agreements against the express provisions of the statute, is now a useless inquiry, as there is hardly any rule of equity better established on- authority. (Roberts, 133. 3 Atk. 3. and note.) It is admitted, that these acts of part performance must be clear and unequivocal, and such as cannot, rationally, be presumed to have been done, unless on account of the agreement. (3 Atk. 4.) When the act of performance is taking possession, it must be done as owner of the estate, and which the party would not have dono had he not considered himself in that light. (2 Bro. C. C. 561.)

Taking the rules above laid down as settled and in-eontrovertable principles, governing courts of equity, I shall proceed to examine and test the facts, in the case before us, by those rules. The conduct of Abel Belknap, when application was first made to him by the appellant, to purchase the farm, had a direct tendency to deceive and mislead ; unless his intention was to assist the appellant to procure an absolute title to the farm. No part of the testimony will warrant an inference, that Niven, at this time, knew any thing respecting the encumbrances. He applied to Belknap, as owner, with a view of making an absolute purchase. On such application, he was informed, by Belknap, that he had not the power of disposing of the farm ; that he had given it up to John Brush, in satisfaction of a mortgage or mortgages held by him, and that Brush had the entire disposal of it; and to account for his being in possession still, Belknap added, that Brush had permitted him to remain there, for a year or more, until he could look around, and fix himself somewhere else. What then must have been the impressions of Niven, when he applied to Brush ? They could have been none other, than that he was the proper and only person wdio could give a good and sufficient title for the farm. The application to him was not in his capacity of mortgagee, but as absolute owner, according to the representation of Belknap. That Niven’s intention and object was to purchase an absolute and indefeasible estate, and not a mere mortgage interest, cannot be doubted. This conclusion is irresistable, both from the parol evidence and the written documents. It was said, by the respondent’s counsel, that the evidence of the parol agreement set up, was not full and explicit; that the witness, Free-love Brush, by whom it was proved, spoke only as to her ■impressions on the subject, which, after such a lapse of time, were not entitled to much weight. This testimony, in examination, I apprehend, will be found not liable to this objection. The witness states explicitly, that Abel Belkap and Niven came to her father, John Brush, and that a bargain was thereupon made, between her father an(j Niven, in the presence of Belknap, by which it was agreed, that Niven would purchase the farm', for about 1,000?. In another part of her examination, she says it appeared to her to be clearly understood by Belknap, as well as the other parties, that her father was to convey to the complainant the said farm absolutely, and that it was not to be subject to any claim or right of redemption, on the part of Belknap. When she afterwards speaks of her impressions, it is with respect to Belknap's reasons, for wishing the farm sold at private sale rather than at public auction. Though it does not appear positively, from this testimony, that Belknap took any active agency in this negotiation ; yet his presence and silence are equally efficacious and binding upon him, if the complainant was thereby misled and deceived. There is an implied, as well as an express assent. As where a man who has a title, and knows of it, stands by, and either encourages or does not forbid the purchase, he, and all claiming under him, shall be bound by such purchase. (1 Fonb. 161.) It is very justly and forcibly observed, by a writer on this subject, (Roberts, 130.) that there is a negative fraud in imposing a false apprehension on another, by silence, where silence is treacherously expressive. In equity, therefore, where a man has been silent, when, in conscience, he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. In pursuance of this agreement, Brush executed and delivered to the appellant an absolute deed of conveyance, in fee simple, for the farm, for the consideration of1,040.? which appears to be the sum due to Brush on his several mortgages. If it was not the understanding of all parties, that an absolute and indefeasible estate was to be conveyed, a question very naturally arises: — what could have induced Brush to execute a deed with full and ample covenants ? If, as is contended on the part of the respondent, the premises were worth much more than the debt due to Brush, it is a little extraordinary that he should prefer exposing himself to a responsibility upon wbat have been termed extraordinary and unusual covenants, rather than resort to the mortgaged premises, in the ordinary way by a foreclosure of his mortgages. Had Brush given a bare quit-claim, or received any benefit from the sale, beyond the debt really due to him, it might have afforded a presumption of a speculation on the necessities of Belknap. But, having in his own hands the means of satisfying his demand, without exposing himself to any future responsibility, his executing such a deed as he did can be accounted for in no other way, if we allow him the ordinary prudence of man, than from a full conviction of his not exposing himself to any hazard, by reason of any claim on the part of Belknap, to the equity of redemption. This conviction must have been produced by the acts and conduct of Belknap, which must have been understood as amounting to a relinquishment of all claim to the premises. If the inference I have drawn from the special provisions in this deed be just, it is a species of evidence derived from a written document, and not subject to the fallibility ascribed to parol evidence. This deed does not contain a separate and distinct covenant to indemnify the appellant against any outstanding equity of redemption, as I understand the respondent’s counsel to suggest. The covenant is general, to indemnify against any claim, demand, right, title, interest, or equity of redemption, thus-only enumerating this among other encumbrances that might exist against the farm. This was, probably, a mere formula adopted by the conveyancer, without any instruction from the parties to the deed. But it is said that it is improbable that Belknap was a party to, or assented to this sale, because he derived no benefit from it; the purchase money being only sufficient to satisfy the mortgagees. It is not, I think, correct, under the circumstances of the case, to say, that Belknap derived no benefit from this sale. The value of the mortgaged premises, according to his own estimate, but little exceeded the sum due to Brush. The interest was continually and rapidly swelling the demand ; his farm was liable^to be sacrificed, by sale at public auction ; the debt increased by the addition of the costs and expenses necessarily attending the proceedings, and he still remaining personally responsible, on his bond, for all deficiencies. It was surely of some benefit to him to be extricated from such a state of things, and of this he appeared sensible; for we find him, when about leaving the premises, declaring to Isaac Belknap, apparently with much satisfaction, that he had now got out of his difficulties and embarassments, for he had sold his farm, and was going to live at Norwalk. There was no pre-tence with him, at that day, that he had been hardly or unjustly dealt by, or that he still claimed any interest in the farm. It is, I think, fairly to be collected, from the mass of testimony relative to the value of the premises, that it would, very little, if any, at the time of the purchase by the appellant, have exceeded the consideration money paid. Great diversity of opinion appears ■ among the several witnesses examined on this subject. The most satisfactory estimate, however, I think, is that which is to be collected from the testimony of John Dickinson. He says, that about this time he was in treaty with Abel Belknap, for the purchase of the farm ; that lie offered 1,050k for it, and had nearly completed a bargain at that price, but it was broken off, owing to a difference about the payment of interest. Here we have nearly ascertained the opinion of Belknap himself, as to the valise of the farm, which wras but a few dollars more than the consideration made by the appellant. We come now to that part of the case which may bo considered as the con-smnation of the contract: I mean the surrender of the possession to the appellant. Here we have the acts of Belknap, which, when accompanied with the previous circumstances, and his subsequent declarations, speak a language not to be misunderstood.

The whole current of the evidence, irresistibly forces on the mind the conclusion, that Niven took possession as absolute owner of the farm. Bdknap, shortly after declared to one of tho witnesses, that he had now sold his farm, and got out of his difficulties. This declaration shows conclusively, that ho considered himself a party to the sale, and is utterly inconsistent with any pretended claim to the equity of redemption, now set up. No complaint was then made that this was the result of necessity, and against his will. He permitted the appellant to go on making valuable improvements, without the least suggestion of any remaining claim. This is not simply a case of part performance ; so far as performance is connected with the contract, it has been completed. The full consideration money was paid, though not to Belknap, himself, yet to his use and benefit, and the possession of the farm surrendered to the purchaser. If, as is now set up on the part of the respondent, Bdknap intended to retain his right to the equity of redemption, the character of fraud is stamped upon his whole conduct; and no one ought to be permitted to profit by the mistakes which have been produced by this fraud and misrepresentation. In opposition to all this, however, it has been urged, that the inference to be drawn from the written evidence in the cause, is, that Niven considered himself as purchasing only a mortgage interest, and that Belknap had not parted with his equity of redemption. The documents referred to are the covenant in Brush’s deed against any equity of redemption, and the assignment of the mortgages to Niven. With respect to the first, I cannot think it affords the conclusion that has been attempted to be drawn from it. Had the covenant been special, pointing to this particular equity of redemption, the inference might be just. But being generabas it is, it furnishes no more evidence of an acknowledged outstanding equity ofredemption, than of any other encumbrance falling within the terms used in the covenant. The assignment of the mortgages to Niven appear to me entitled to more consideration; yet I cannot think it a controlling circumstance. It might have been done with a view to guard against intervening encumbrances, which mighthave been created by Belknap. Whatever the object was, the measure must have received the assent and approbation of Belknap, and was not done for the purpose of holding a rod over him. He could not consider himself as remaining personally liable for this mortgage money, or we .should not hear him declaring that he had now got rid of his difficulties and embarrassments. If Niven’s purchase extended only to Brush’s interest in the mortgages, the assignment was amply sufficient, of itself, to transfer that right, and the deed executed by Brush was useless. This deed speaks a language directly repugnant to the idea of a mere assignment of a mortgage interest, and no possible inducement to its execution by Brush can be assigned, unless an absolute estate was intended to be granted. It cannot, I think, be doubted, but that the respondent is to be considered in the character of a purchaser with notice; and, of course, the same rules oflaw and principles of equity may be applied to him which might have been applied to Abel Belknap, his father, from whom he purchased.

From this examination of the testimony, I think I am warranted in concluding, that the following facts are established : That Niven’s object and intention, from his first application to Belknap, and throughout the whole transaction was to make an absolute purchase of the farm. _ 77 , I hat Belknap represented to him, that Brush was the proper and only person to apply to for that purpose. That the contract between Brush and Niven was for an absolute purchase, and not a mere mortgage interest. That Belknap either assented to the contract, or by his representations and conduct induced Niven to believe he should be safe in a title derived from Brush. That Belknap, in pursuance of this contract, surrendered the possession to Niven, as absolute owner, and suffered him to go on making improvements for several years, without the least intimation of his having any claim to the equity of redemption now set up. All which, in my judgment, are sufficient to take the case out of the statute of frauds, and presents a strong claim, on the part of the appellant, to the equitable relief prayed for in the court below.

I am of opinion, therefore, that the decree of the court of chancery ought to be reversed,

This being the unanimous opinion of the court,- it was thereupon ordered, adjudged, and decreed, that the decree of his honour the chancellor be reversed. And it was further ordered, adjudged, and decreed, that the respondent,- Chauncey Belknap, do, without delay, execute and deliver unto the appellant, Daniel Niven, a competent release of all his, the said Chauncey Belknap's right, title, interest and claim, in and to the lands and premises in the pleadings in this cause mentioned, sufficient to quiet the said Daniel Niven, his heirs and assigns, in the peaceable and full enjoyment thereof, against any right or claim of the said Chauncey Belknap, or his heirs, of, in, or to the said lands and premises, the forms of which release shall be settled by one of the masters in chancery, *n CaSe Part*es disRg1'00 respecting the same. And in case this decree cannot be executed, by reason of death, or for any other cause, then it was further ordered, adjudged, and decreed, that the chancellor, on application f0r febat purpose, award a perpetual injunction in favour of the appellant, according to the prayer of the said bill, and the effect of this decree. And it was further ordered, adjudged, and decreed, that the respondent, Chauncey Belknap, pay unto the appellant, Daniel Niven, his costs in the court of chancery, to be taxed by a master, and that the pleadings and proceedings sent here from the court of chancery be remitted to the court of chancery, with this decree, to be executed by that court.

Judgment of reversal. 
      
       It is a well settled principle, however, that chancery will not suffer any agreement in a mortgage to prevail, which shall change it into an absolute conveyance upon any condition or event whatever. Clark v. Henrypn court of errors; 2 Cowen 324.
     
      
       9 Vesey.jun. 260. Cotes v. Trecoihick
      
     