
    Overseers of NEWARK against Overseers of POMPTON.
    Settlement gained by taking a deed for land, but never paying for it.
    
    [*] The widow and children of one Kellam, had been removed by an order of two justices of Bergen county, from Pompton to Newark. Newark appealed to the sessions of Bergen county; and the sessions affirmed the order; and these proceedings were removed by certiorari into this court. The ground of the settlement of Kellam, the husband and father of the paupers, was, that Kellam had purchased a house and lot in Newark, of a value exceeding fifty pounds. But the fact was, that although he had purchased the house and lot, and taken a deed for it, yet he had never paid any thing for it, but had, the same day the deed was executed, mortgaged it to the person of whom he bought it, for the whole of the purchase money. And it was afterwards sold for the benefit of the mortgagee.
    
      Van Arsdale, for Newark,
    contended that this was not such a freehold estate as the law contemplated in creating a settlement; Kellam never had an interest in the land, of the value of fifty pounds; that the deed and mortgage being executed at the same time, must be considered as one act; that at the same time that the fee passed out of the grantor, it returned to him again by the mortgage; and Kellam could not be said to be seized of a freehold estate, of the value of fifty pounds. If this practice is recognized by judicial authority, it will open a wide door for fraudulent settlements.
    
      I. H. Williamson, for Pompton.
    It is not the sum Kellam was worth, but the sum the estate was worth of which he was seized; he was seized of the estate, and it was worth fifty pounds. There may be a seizin of an estate by the mortgagor. The mortgagor is, for every legal purpose, considered the owner of the land. ^ Johns. J¡.1. The purchase was a fair bona fide one; the trial below, established the fairness of the contract.
    
      Van Arsdale, in reply.
    Our poor act was passed in 1774; and the construction must be governed by [*] the ideas entertained at that time. He contended [758] that in 1774, a mortgagor was not considered the real owner. The idea is a modern one.
    
      
       See Burr. Set. Cases, 57.
      
    
   By the Court.

There is no pretense of fraud set up in this case. If there was any fraud alleged in the transaction, it would be proper to examine it, and might govern the decision. Kellam, under the state of this case, must be considered as seized of a freehold estate of the value of fifty pounds. The judgment of the sessions affirming the order of the justices, must be

Affirmed.

Pennington, J.

Being an inhabitant of Newark delivered no opinion.

Cited in Bernards v. Wrrren, 3 Gr. 447. Approved in Nottingham v. Amwell, 1 Zab. 87.  