
    Barbara Kelley and others v. William Stanbery, Howell Phillips, Jonas Stanbery, and others.
    An interlocutory decree may, on motion, at any time before final decree, be-modified, altered, or set aside, as the nature of the case may require.
    A. sold and agreed, by parol, to convoy land to B., and took from him a mortgage of the premises to secure the purchase money; on a bill filed by B\ to obtain a deed, A. is estopped from setting up the statute of frauds, to defeat the parol contract, or the right of redemption.
    Where the purchaser of land by parol is put in possession, the vendor can not set up a naked parol agreement to rescind. As part performance was necessary to vest an interest in the purchaser, so the same is required to divest his title.
    A purchaser of land in possession of a third person, is chargeable with notice of the occupant’s title and equities.
    In chancery from Licking county.
    The original bill was filed October 4, 1838, by the widow and heirs at law of Leonard Kelley, to redeem a mortgage giveij ^by him to William Stanbery, for 250 acres of land ; also, to obtain title to the land, and compensation for rents and profits, ■of which they have been wrongfully deprived.
    The complainants claim that, on October 25, 1826, Leonard Kelley entered into a parol contract for the .purchase of tho land, was put in possession, and gave his notes to William Stanbery lor the purchase money. At the same time he executed ■a mortgage of the promises to said Stanbery, to secure payment ■of the notes, which are specified in tho mortgage deed, and thus referred to in the condition: “ The same being executed by the said Kelley, as the lull consideration money, for tho payment of the above-described tract of land.”
    The notes and mortgage were afterward assigned by Stanbery to Hillbrand.
    Leonard Kelley died in February, 1832, having made valuable improvements. In September, 1832, his widow and heirs being still in possession, William Stanbery sold the premises to Howell Phillips, who, taking advantage of the temporary absence of the widow, and the tender ago of her children, entered upon, and has ■ever since held possession of the land, enjoying its rents and profits.
    The bill prays an account to be taken of the sum due for tho purchase money, that, on its payment, the mortgage and notes be .given up and canceled; an account against Phillips of rents and profits; a decree for title and quiet possession, and for general relief.
    The material facts appearing in tho pleadings and proofs, as •also the questions of practice raised by the parties on the hearing, .are stated in the opinion of the court.
    Matthew Mitoiiell, for complainants:
    At the October term of the court of common pleas for Licking ■county, 1839, a decree was rendered in behalf of complainants, allowing them to redeem, and ordering an account of tho rents and profits to be taken. From this decree an appeal was taken to-■this court; and at the session of this *eourt, on the circuit, ■for 1842, in Licking county, a decree, similar to the one rendered in the court below, was again rendered in behalf of complainants, ;and the ease referred to a master, to take an account with Phillips. At the session of the court for 1843 the master made his report, to which complainants filed various exceptions. The cause was continued for want of time to bear the exceptions. The case was then referred, to take an account for the rents and profits of the last year. At the term of this court for 1844, the master last mentioned made his report. And thereupon the defendant, William Stanbery, moved the court to reopen the decree entered at the session of the court for 1842; on which last motion the whole case' was reserved to the court in bank.
    This being the state of the case, the first question that arises is, can the court, according to the established rules of practice in chancery, grant the motion of the defendant, Stanbery, coming as it does?
    This motion can not be regarded as in the nature of a petition: for rehearing. Section 53 of the act regulating the practice in chancei-y, Swan’s Stat. 714, requires that a petition of this nature1 be preferred within thirty days after making the order. This was not so preferred. The motion does not pretend to be under the two succeeding sections of the statute, in the nature of a petition for a review, or for leave to bring a bill of review; which three1 methods, we conceive, are the only ones known to our practice by which a former decree in chancery can be reopened and reheard. To adopt the practice here sought to be introduced, would, in the very face of the statute, clearly be a departure from the established usages of courts of chancery; Story’s Eq. Pl. 302; lb. 336; and might, and probably would, be fraught with incalculable evil to the cause of regularly administered justice — the only justice known to courts in a country governed by laws, as we are.
    But suppose this court could, with propriety, treat this motion as an application under the statute for leave to bring a bill of review, or a bill in the nature of a bill of review, for *newly discovered testimony. How would it stand ? Newly discovered testimony, to support a bill of review, must bring to light some new matter, not known to the party at the time of the hearing, on the decree sought to be reviewed. It must be a new matter, not cumulative evidence merely. Livingston v. Hubbs, 3 Johns. Ch. 124.
    There can be no pretense that, in this case, such a ground is1 laid. The depositions of Roby and Pense, taken but a few days before the sitting of the court, was no doubt taken as a predicate for some such proceedings as the court has now before them on this motion. Suppose that the matter contained in those depositions was regularly brought before the oourt, on a petition for leave to bring a bill of review, or a bill in tho nature of a bill of review, as the ease might require, what would be the rightful conclusion of the court in the premises? Those depositions seek to establish the very same thing which defendants sought, before the hearing, to establish by the testimony of other witnesses, and are infinitely weaker in their force upon the point sought to be established. Roby’s, it is true, seeks to show that two of the heirs, who were of age, seem well satisfied with the compensation Stanbery had made them, in giving them the fifty acres of land. But, unfortunately for the defendants, the answer of Stanbery stands sadly in the way of allowing the truth of Roby’s deposition.
    That answer alleges, most positively, that no compensation was ever made the boys for their improvements or rights, and that tho fifty acres, instead of being a gift to them, as sworn to by Roby, was a sale for a full and valuable consideration.
    Stanbery, at that period, had his mind firmly set on maintaining the validity of the release from Leonard Kelley, sot up in his answer, and was determined to anticipate any presumption that might arise against that claim, by his having given tho widow, or the heirs, anything that could be regarded as a compensation for rights in the premises, which by the release from Leonard Kelley, he had before claimed was entirely extinguished, both in his widow and the heirs. But now, since he finds that we have clearly proved his own declaration, ^acknowledging, most unequivocally, the rights of the widow and heirs, he would change, blithe testimony of others, the truth he so unwittingly told in hi'S answer, and would now gladly prove, were it possible for him, that the land he sold for a valuable consideration in money, was given to two of the boys for their interest in the farm in controversy; so that the testimony of Roby could, by no possibility, be received to contradict, in Staubery’s own favor, the fact so clearly and distinctly stated in his answer, and consequently could avail him nothing upon a bill of review, or elsewhere. For the declarations of Kelley’s heirs who were of age, could be of no force to extinguish their title to the premises in controversy, except as those declarations showed a relinquishment of their title for a valuable consideration. For it will be easily discovered, that courts of equity look with peculiar jealousy upon the dealings of an unconscionable mortgagee, with the mortgagor or his heirs, for the equity of redemption, and will inquire strictly into the fairness of the transaction, and the value of th® consideration. 2 Johns. Ch. 30.
    Should this court, however, conclude that, to allow this motion in the shape it stands, and to review their former decision, would be for the furtherance of justice, the complainants can boo no reason why they should shrink from the most thorough canvass of the meri\s of their claim.
    The complainants claim, in this case, to be entitled to redeem the premises, in the bill described, as heirs of the mortgagor. Phillips seeks to defend himself, on the ground that he is an innocent purchaser, without notice. This he can not do, because of the record of the mortgage, which was prior to his purchase; and because the widow and heirs of Kelley were in possession, which was legal notice to him of all the interest they might, in reality, have in the premises. These principles wo take to be too plain to require authorities to bo cited in support of them. Phillips, then, is subject to all the equities that exist against his grantor, William Stanbery.
    ^Stanbery sets up in his answer that no title ever passed to Kelley, because no deed tvas ever made. This the complainants claim can not avail Stanbery :
    1. Because it would be allowing Stanbery to take advantage of his own wrong, which no man is allowed to do in a court of justice. Stanbery admits, in his answer, that it was solely of his own neglect that the deed was not made and delivered. It was 'Ihe intention of the parties at the time that it should be done, and was entirely of Stanbery’s wrong that it was not done.
    2. Because courts of equity always hold that to be done which ought to be done. 2 Pow. on Con. 56; 1 P. Wms. 710; 1 Salk. 154; 2 Ves. 639. All who come in Stanbery’s stead, and take in right of him, are bound by his agreement. 2 Pow. on Con. 57.
    3. Stanbery, and those claiming under him, are clearly estopped from denying title in Kelley. Stanbery accepted a deed from Leonard Kelley, and acted under it. This deed is in Wm. Stanbery’s own handwriting, and distinctly and positively recites •that the land described in it was convoyed to Kelley by Jonas and Lucy Stanbery. He, accepting this mortgage, and recording and transferring it, is estopped to deny its recitals, or'that Kelley had title to the land. Coke Lit. 352, 357; 2 Ld. Raym. 1051; Pet. Com. Law, 367, tit. Estoppel; 8 Cow. 585. The principle laid down in the last case, by Justice Jones, is, “ That an estoppel concludes the party from alleging the truth, and therefore a man who admits a fact or deed in general terms, either by reciting it in au instrument executed by him, or by acting under it, shall not be allowed to deny its existence.”
    If one take a contract from another for the purchaso of lands, he is estopped from denying the title of him from whom he purohased. 6 Cow. 401 ; 7 Ib. 717.
    The taking of lease by indenture of a man’s own land, is an •estoppel to claim the fee during the term. 1 Tom. L. Dic. 674; Moore’s Cas. 323.
    *The present is a case where equity as well as law dedares the defendant should be estopped from denying the title of Leonard Kelley.
    Had Stanbery acted in good faith, and kept his word with Leonard Kelley, and had the deed been executed as ho promised, there could not remain a shadow of doubt but that the complainants, as heirs of' Kelley, would bo entitled to redeem.
    If, however, these complainants could not redeem as heirs of a mortgagor, still they are entitled to relief, either by a specific performance, or by a compensation for lasting and valuable improvements made.
    Having made lasting and valuable improvements while Stanbery stood by and look on, lays a ground for them to claim a specific performance. Parkhurst et al. v. Vancortland, 14 Johns. 15.
    It is clear that the heirs of Kelley have had taken from them a valuable right, the avails of their hard industry, for which they 'have received no compensation. It was, with great propriety, said by the chief justice, in the ease last cited, that the rise in -value of the land, whatever it might be, more properly belonged to the man who expended his labor and toil in improving the land, with the honest expectation of enjoying it, than to him who stood 'by and silently watched the application of the laborer, intending to take both land and labor for nothing.
    Here, then, whatever rise in the value of land there may have, been, more properly belonged to Kelley’s heirs than to Stanbery. The value of the improvements and the rise of the land, put together, probably gave Kelley’s heirs a property worth at least $2,000, which Phillips and Stanbery seek to keep from them without the least compensation.
    
      But that their rights are clear, as heirs of the mortgagor, Stanbery seems to be conscious when he undertakes to avail himself of a release from Leonard Kelley.
    This release can not avail Stanbery, because:
    1. It is disproved by Stanbery’s own • declaration, proven by four reputable witnesses, who declare they heard Stanbery *say that the widow and heirs of Kelley had rights there which prevented him from disposing of the farm until he had settled with them.
    2. Had it been clearly proven, it would have been of no effect, by reason of our statute of frauds. It was not in writing, and it purports to have been for the transfer of an important interest in lands — a highly valuable equity of redemption.
    3. If it had been in writing and abundantly proved, yet it was, as appears, without the least consideration. It had not even the consideration of having released Kelley from his liability on the mortgage. For, by Stanbery’s own showing, the mortgage was at that time transferred to Hillbrand, and consequently out of Stanbery’s control, so that he does not show that he had the least authority to release Kelley from his liability on the mortgage, or to make any arrangement or agx-eemont with Kelley concerning it.
    Hence, oven the suspicious consideration of Kelley’s release from liability under the mortgage totally fails, and Stanbery can make no pretense to any other consideration. Indeed, he does not pretend to claim that this consideration did exist. He does not allege in his answer that Kelley was x’cleased, but admits the contrary, and claims that he afterward released the mortgage to Kelley’s widow. So that the pretended agreement set up in Stanbery’s answer with Kelley, lor the release of his equity of redemption, can, by no possibility, avail Stanbery or those claiming under him in a court of equity.
    But courts of equity, having learned by long experience the gross and iniquitous advantages often sought and obtained by those holding mortgages in dealing for the equity of redemption, hxxve adopted just and salutary rules on the subject.
    They have adopted, fii’st, that embari’assing rule to designing mortgagees, “ once a mortgage, always a mortgage.” This prevents the covering up, by artfulness, in the first place, or by subsequent acts, the true nature of the transaction. They have,. then, gone further, and adopted the rule that, although the equity of redemption may be released, “yet that the fairness *of the transaction, and the value of the consideration, must distinctly appear.” Holdridge v. Gillespies, 2 Johns. Ch. 30.
    If this court looks with jealousy on dealings between mortgagee and mortgagor, for the release of equities of redemption, certainljr there is something in this case to awaken their jealousy and suspicion. Coote on Mortgages, 26.
    The complainants in this case are entitled to the rents and profits of the farm since the defendants went into possession. Coote on Mortgages, 320. Defendants are also entitled to the reasonable cost of all lasting and valuable improvements necessary to-keep the place up, made before the commencement of the suit, but not for newly cleared land or ornamental improvements." 1 Johns. Ch. 385; 1 Hill. Abr. 293.
    The questions of law arising under the exceptions to the first master’s report, bring up the discussion of the above-stated principles, with their'various distinctions.
    The master, in making his account, has allowed compound interest to the mortgagee on his debt; has refused to allow interest, on the surplus rents and profits; has allowed for all improvements, whether done before or since the commencement of suit;, and has taken the very lowest estimates of the per-annum rents, paying no regard to the large number of other credible witnesses-who fix the rents much higher, by modes of computation, too, which show that they took by lar the most accurate means of knowing what the premises are worth. For these things mainly the report is objected to.
    That compound interest is not allowable in this state, except under special agreement, I take to be abundantly clear. 5 Ohio, 260.
    When a mortgagee is in possession, and receives the rents and profits of the estate, it is a well-established general rule that he-is to allow the mortgagor the rents he has actually received, or which he might, without gross neglect, have received, and interest on the same, making annual rests. 2 Atk. 510; 2 Pick. 506; 5 Ib. 160 259. In the case last cited, the rule is very distinctly laid down as to the allowance of ^interest on rents and profits. Wilde, Justice, says: “The general custom in England, has been to allow interest where the amount of rent was consider■able; otherwise, not. The rule would be more simple, and I think more just, to allow interest-in all cases, and to consider the rents received as so much paid upon the mortgage.”
    Nothing can be fairer than this, as a general rule, and there is nothing in the circumstances here to take this case out of it.
    The master has allowed all improvements, whether done before or since the commencement of suit. The case of Moore v. Cable, 1 Johns. Ch. 385, establishes the point directly, that for clearing wild land, as a general rule, no allowance will be made. The principle on which this doctrine rests is, that, by allowing such charges, it would enable the mortgagee in possession to improve the mortgagor, especially' if an indigent man, out of his estate. A gross injustice which courts of equity are careful to prevent.
    The most general rule which we can gather from the authorities is, that the mortgagee in possession will bo allowed for all necessary repairs and necessary expenses incurred in protecting and defending the mortgagor’s estate, made or incurred before suit was brought, but will not be allowed (or clearing wild lands, nor (or ornamental improvements, nor for new erections not necessary for keeping up the estate, and permanently beneficial. 1 Hill. Abr. 293; Moore v. Cable, 1 Johns. Ch. 385; 2 Pick. 506; 2 Sch. & Lef. 214, 661; Ib. 225, 676. In both cases, last cited, the master is expressly directed to take the account as to improvements made prior to filing the bill. The case of Webb v. Rorke, 2 Sch. & Lef. 661, shows, also, that the rents and profits should be applied as they fall due, to keep down the mortgagee’s debt; and also shows the jealousy with which courts of equity regard dealings between mortgagee and mortgagor for or respecting the equity of redemption.
    Complainants also claim that in this case they should recover full costs. 5 Pick. 259. They' have been brought to this *court by appeal, long delayed in obtaining their rights, and put to great -expense and trouble, when, if they' recover, as we claim they should, it is most manifest they were in the right, and their adversaries in the wrong. As a general rule, costs are taxed against the parties in the wrong.
    English, for defendants:
    The principal question is, whether a discharge by parol is sufficient t o defeat the c’lims of the heirs? The agreement made by •Stanbery to execute and deliver to Kelley a deed, was a parol agreement, but such a parol agreement as a court of equity would have compelled Stanbery to execute. There has never been any doubt but that a parol agreement might bo discharged by parol. Even an agreement in writing concerning lands may be discharged-by parol where the aid of a court is required to carry it into execution.
    It is universally considered that an agreement in writing concerning land may be discharged by parol. Sugden on Tend. 175. In Stephens!). Cooper, the chancellor, in giving his opinion, remarking on the principle that an agreement in writing concerning land may be discharged by parol, says, “ that the evidence in such cases is good only as a defense to a bill for a specific performance, and is totally inadmissible in law or equity as a ground to compel a performance in specie.” 1 Johns. Ch. 429; Botsford v. Burr, 2 Ib. 405.
    Stanbery acted upon the agreement of Kelley to give up the-land. He obtained Kelley’s mortgage and notes, from Hillbrand, to whom they had been assigned, and it can make no difference' by Stanbery’s retaining the notes and.mortgage in his possession. This was doing Kelley no injury, as the notes could not be recovered even at law ; at all events a court of equity would have restrained their collection. Stanbery acted further upon the parol discharge by afterward conveying and selling the Kind to the-defendant, Howell Phillips.1
    No fraud or injustice was done to Kelley’s heirs by the sale-to Phillips; it was sold to him fora less sum than would have *been due on the mortgage if the bargain had not been canceled, and it was sold at its full value.
    The widow and two of the sons of Kelley received a deed from Stanbery for fifty acres of land. As to these two sons, who were of age at the time, they can have no pretense for a claim to this-land. And if the court award a decree in their favor, it ought to be on condition that they make compensation for the fiity acres.
    S. D. King, for defendant Phillips, insisted that he was an innocent purchaser. He is not chargeable with notice by the record of the mortgage from Leonard Kelley to William Stanbery. The-state of the record was not such as to “ lead a searcher for incumbrances, using common prudence and care in investigating the-title, to a knowledge of the fact.” A purchaser from Stanbery ought to learn all conveyances from Stanbery existing on record at the time of his purchase. It is not pretended that any such record exists; on the contrary, no such conveyance, in fact, existed, as the deed from the Stanberys to Leonard Kelley appears never to have been, in fact, executed.
    The case of Leiby’s Ex’rs v. Wolf et al., 10 Ohio, 83, is precisely in point, showing the amount of diligence required to be used by a purchaser in searching for incumbrance.
    J. R. Stanbery, for defendant, William Stanbery:
    The court are referred to Leiby v. Wolf, 10 Ohio, 83. The answer of Howell Phillips denies all knowledge of the mortgago from Kelley to Stanbery. If he had searched for incumbrances on the land before his purchase, the state of the title or record would not have led him to the knowledge of the mortgage from Kelley, as Kelley had no deed recorded.
    The court, in the case last cited, say, “when the series of deeds runs on a line entirely different, and there is nothing to connect the name or the interests of a third person with *any part of it, it would be unreasonable to impute to the searcher a knowledge of the acts of such third person.”
    It may be said that Phillips knew that the heirs of Kelley were In possession, and was bound to take notice of the title under which they claimed to hold. The answer admits knowledge of !.hc possession of complainants, but states that he understood from them they claimed no right to the land, and yielded to him tho possession peaceably.
    The testimony establishes that Leonard Kelley, the ancestor of complainants, in his lifetime surrendered to Stanbery his right to tho land, and discharged him from his contract to deliver the deed. The testimony also proves that Barbara Kelley, the widow, after the death of her husband, the mortgagor of the land, settled with Stanbery, and received payment for the improvements made on the land. She wag the administratrix of Leonard Kelley, and in that capacity had authority to release her husband’s equity of redemption in the land. On this point the court are reierred to Bank of the United States v. Piatt’s Heirs, 5 Ohio, 540.
   Read, J.

This is a bill filed to redeem a mortgage, for specific elocution of a contract, to declare a trust, and for an account of rents and profits, in reference to the same premises.

Decree was rendered for complainants, in all aspects of the bill, at the term of the Supreme Court in Licking county, 1842, and was referred to a master to take an account of rents and profits, valuable lasting improvements, and the amount due on the mortgage. At the term of the Supreme Court, 1843, the cause was continued on exceptions to master’s report, and referred to a master to take an account of rents and profits of the last year. The cause coming up at the term of the Supreme Court, 1844, on master’s report, motion was made by William Stanbery, one of the defendants, to open up the decree of 1842, and look to the original equities; upon which motion the case was reserved to court in bank.

*This presents a preliminary question of practice, as to whether the court at this late period will entertain a motion to open up the decree of 1842. Counsel for complainants regard the decree of 1842, settling the equities of the cause, as final, only to be set aside upon petition for rehearing, or upon review for errors of law, or newly discovered matter since former decree.

The question depends wholly upon the fact whether the decreo of 1842 was final, or interlocutory; and if final, whether it was still under the control of the court for modification, correction, or to be set aside, as equity and good conscience might require.

The distinction between final and interlocutory decrees is oftentimes exceedingly nice, yet of most important consideration in practice, as the kind of proceeding to be had after a decree depends upon its character. When to take appeals, the time limited for petitions for rehearing, or bills' of review, or whether to question the decree on motion, or by original proceeding, are all involved. A want of observing at all times the distinction between final and interlocutory decrees, has induced some doubt and uncertainty in practice.

A decree is final which disposes of the whole merits of the cause, and leaves nothing for further consideration of the court. A decree is interlocutory which finds the general equities, and the cause is retained lor reference, feigned issue, or consideration, to ascertain some matter of fact or law, when, again, it comes under the consideration of the court for final disposition. When no further action of the court is required, it is final; when thr >,ause is retained for further action, it is interlocutory. Further decrees and orders of the court sometimes become necessary to carry into effect the rights of parties fixed by final decree ; and final decrees oftentimes ■direct an act to be done, as in case of specific performance, that on payment of the purchase money as specified in the final decree, the vendor shall execute a deed ; or, in case of redemption, that on payment of the money due, the mortgage be canceled, and even sometimes all the rights of the parties being found, *and all the consequences to flow from a certain fact having been finally determined, a reference as to such fact may be had to a master, and still the decree be final. The confusion has sprung up from failing to observe .the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree. Because a final decree might direct that certain facts should be ascertained in execution of such decree, it will not make it interlocutory; nor, on the other hand, because a decree finds the general equities of the cause, and reference is had to a master to ascertain facts preparatory to ■final disposition, will it be regarded as final. It seldom happens that a first decree can be final to conclude the cause, and yet, in all cases, the general equity should be found, and the principles laid down for the government of the master, before reference had. But such decrees are never held to be final. Indeed, it is remarked by Judge Spencer, in Jaques v. Methodist Episcopal Church, 17 Johns. 548, that no case can be found in which a decree directing a reference to a master, or a feigned issue, for the purpose of ascertaining a material fact, has been held final. But under the practice of our courts, a decree finding the general equities of the case for the purpose of reference, etc., has been held final to support an appeal, but for no other purpose. In case of a final decree, an ap.peal of course brings up the whole merits of the cause. Proceeding upon the principle that a party may question the finding of the general equity, he can appeal from a decree which may possibly dispose of the case without the expense of reference or further proceeding, or may await the final action of the court, and then appeal if it be desired.

In all cases where the decree is interlocutory, the whole merits of the cause are before the court for consideration, and it is their duty to render such final decree as equity and good conscience, from a view of the whole case, may require. Even final decrees whilst they rest in paper, or before enrollment, are within the control of the court for modification, alteration, or to be set aside. And in our state, final decrees *are always under the control of the court during the term at which they were rendered, the term being but one day for the purposes of justice.

The decree of 1842 was not final, and the whole cause is before the court, and we must therefore look into the original merits and equities of the controversy.

The ‘bill charges that Leonard Kelley, the complainants being his widow and heirs, on October 25, 1826, purchased the land in controversy from Jonas and Lucy Stanbery; that to secure tho payment of the purchase money, 6800, five several promissory notes were executed, made payable to William Stanbery, the last of which fell due on October 25, 1832 ; and to secure said notes a mortgage deed was executed to said William Stanbery upon said land ; that Leonard Kelley died in February, 1832, before tho last payment fell due ; that on September 28, 1832, William Stanbery sold said land to Howell Phillips, by deed, in fee simple, without the knowledge or consent of said complainants, and without foreclosing said mortgage; that Phillips, taking advantage of the temporary absence of the widow and the tender age of the children, obtained possession, ejected complainants, and has held and enjoyed the premises ever since.

That after the purchase Leonard Kelley and complainants made large and valuable improvements, for which neither Stan* bery nor Phillips have made any compensation, and now retain and enjoy the benefit; that the mortgage is still unforeelosed and unsettled; that it was duly recorded in Licking county shortly after Stanbery received it; that Phillips had full notice of all tho rights of complainants when he purchased. Prays deed from Jonas and Lucy Stanbery, to be allowed to redeem; an account of rents and profits against Phillips, and on payment of balance duo on mortgage, that William Stanbery and Phillips be decreed to convey to complainants.

Phillips, in his answer, denies all knowledge of the mortgage, or of any claim of title on behalf of complainants; but *admits they were in possession, and that he obtained possession whilst Mrs. Kelley was absent from home; that he did not eject them, but permitted them peaceably to occupy until the next March, when they left of their own accord.

William Stanbory, in his answer, claims that he was the owner of the land prior to 1826, and that Leonard Kelley was, some time previous,.his tenant; that Kelley failing to make certain repairs agreed upon as tenant, excused himself upon the ground that his boys, of whom he had several, would not assist him; that if he could buy tho place his boys would work and help him pay for it; that thereupon respondent, Stanbery, sold the place to Kcdley for tho amount described in the bill, at the same time took the mortgage from Kelley charged in the bill, and drew a deed, intended to bo signed by respondent and wife, and Jonas and Lucy Stanbory, the latter of whom lived in an adjoining county, conveying said land to said Kelley; that the respondent neglected to get the last-named deed executed, and that it never was so executed and delivered to Kelley for tho land.

But by way of defense, Stanbery sets up that Leonard Kelley, in his lifetime, agreed, by parol, to give up to him the land without any consideration or pay for the improvements.

That he gave to Mrs. Kelley, the widow of Leonard Kelley, as it mere gift — not as compensation for any rights she had therein— fifty acres of land in Knox county; that he sold to the two eldest boys fifty acres more, and obtained from them a promise to move ■on tho land and improve it, and support their mother. Claims that Kelley’s heirs had no interest in the land, and no right to redeem; that the improvements were small, and paid for by the use •of tho land ; that no deed was ever made to Kelley, and that he consequently had no title; that he released to Mrs. Kelley, administratrix of tho estate, all claim under tho mortgage. Admits ■that he sold tho land to Phillips, and received full value.

The mortgago which William Stanbery took from Kelley recites that it was executed to secure tho consideration money for the land sold to Leonard Kelley.

*Jonas and Lucy Stanbery havo not answered, or in any ■way appeared, and, it seems, havo no interest in the matter ; but such decree may be taken, by way of precaution, as. will secure to complainants any title said Jonas and Lucy may have in said land.

This case is wholly without tho statute of frauds, by the recital in the mortgage, and the admissions in the answer of Stanbery, that the land was sold, possession taken, improvements made, and a mortgage executed to secure the payment of the purchase money, and that a deed of the land was to have been made to Kelley, which was not done, solely from the neglect of Stanbery, the respondent.

How can Stanbery resist the right of complainants to redeem and assert their equity to the land in controversy?

Will he say that the mortgage was given to secure the purchase money, and the right of redemption involves the specific execution of a contract for the sale of real estate, which' a court of equity will not enforce after such a lapse of time, and after other persons have acquired an interest in the land?

It is not admissible to set up the defense that Kelley had no title, because the mortgagee is estopped to deny title in the mortgagor, on bill filed by him or his representatives, to redeem. Besides, the fact that Kelley had not a deed, is from the neglect of Stanbery, and he is not permitted to take advantage of his own wrong; and equity regards that as done which should have boon done. The fact that this mortgage was given to secure the payment of the purchase money, does not, in this respect, alter the case. Because, had the deed been executed, the right to redeem would have been unquestioned. Had the purchase money been paid, the right to a decree for a deed would have been equally certain. Thus, whilst respondent, Stanbery, is estopped from the relation of mortgagee and the maxim of equity, that a man shall not take advantage of his own neglect or wrong, to deny title to prevent a redemption; he, at the same time, will be compelled to do what he should have done, and execute a title to the land.

*But Stanbery insists that Leonard Kelley gave up the land, by parol agreement, in his lifetime; and hence that the mortgage, and right to a decree for title, are both gone, and that in consequence thereof the mortgage claim was since released.

First, this is an agreement without consideration, and not binding ; and, secondly, is within the statute of frauds, and void. No interest in land, equitable or otherwise, passes by parol only. True, a parol agreement executed by possession taken, will be enforced. But an equitable interest, once acquired in land, can not be parted with except by writing, or by the same means that it was acquired, which is not pretended in this case. Besides, it is proven that long since Kelley’s death, Stanbery admitted the interest of Kelley’s heirs in the land. As to his subsequent conduct toward the widow and children, in giving'the widow fifty ac.’es of land in Knox county, as he avers in his answer, it was a mere gift, and the fifty acres to the boys was a sale; no defense arises, as it was the result of generosity in the one case, and a sale in tho other, and not the consideration of the relinquishment, of aright.

Stanbery, then,'has no defense to the redemption, or to a decree for title. How'does Phillips stand? Phillijos came in under Stanbery whilst complainants were in possession of tho promises, and therefore was charged in equity with full notice of the nature and extent of complainants’ rights, and stands in no better situation than Stanbery.

The complainants, therefore, have the right to redeem, and toa decree for title.

But, as Phillips has paid for the land, and as no one appears to have any interest in the mortgage but Stanbery, although there is some suggestion of an assignment to one Hillbrand, he is entitled to the money duo on the mortgage, to be paid on redemption, and to such valuable, lasting improvements, as he has put upon the premises.- He came in under color of title, and, by analogy to the occupying claimant law, he is entitled to compensation for improvements.

ffe have examined the reports of the masters, and, for the purposes of correction, referred tho whole.matter again to a master, to state an account, on the following principles :

*1. To ascertain the money due on the mortgage.

2. To take an account of tho annual rents and profits of the premises since Phillips came into possession.

3. To apply such rents and profits to the payment of interest on the mortgage debt, and any balance to the reduction of the principal; making rests annually in the calculation of interest on tho mortgage debt, when the annual rents and profits more than extinguish the interest on such debt.

4. To take an account of valuable, lasting improvements, put upon the premises by Phillips, and add tho same to the balance due on the mortgage,'after deducting rents and profits, as above specified.

The amount so found is to be paid over to Phillips, as directed in the decree, and, upon payment, title is to be made to complainants. Decree entered accordingly.  