
    David Stratton v. Warren Sabin and Others.
    A stipulation in a deed of conveyance, giving the grantor the privilege of selling the land conveyed, if he could do so to better advantage within two years, he, in that event, paying hack to the grantor the purchase money and interest, does not of itself constitute a mortgage.
    Bill in Chancery. From Clinton. This case, in the pleadings ■and proofs, involves many enquiries unnecessary to be stated to elucidate the point decided by the court. The following statement will present the facts connected with the point decided. In 1822 Sabin then owning a tract of about seventy acres of land in Clinton county, united with his wife in a conveyance of fifty acres of it to the defendant, David M’Millan. The deed contained the following clause: “ And it is expressly understood that if the said Sabin can, within two years from the date hereof, dispose of the said fifty acres hereby granted, to any better advantage to himself, he shall have the privilege of so'doing, Tby paying the said M’Millan the consideration money herein mentioned, viz. three hundred dollars and interest.”
    *In 1834, the Urbana Banking Company obtained a judgment against Sabin in the common pleas of Logan county. Execution was sent to Clinton county, which was levied upon seventy acres of land, including the fifty conveyed to M’Millan, which was duly sold to the plaintiff. The proceedings were confirmed by the court and a deed made. After the levy, Sabin sold forty acres, part of the fifty acre -tract, to defendant, William Hibben, and received a deed from M’Millan. Hibben paid M’Millan's assignee the balance claimed by him, and the residue of his purchase he paid to Sabin, and obtained the possession of the land. Stratton claims that the deed to M’Millan was a mortgage, which was quite or nearly paid off when his levy was made, and that Sabin was a mortgagor in possession, and had a legal estate which passed by the sale on execution ; that the transfer to Hibben was fraudulent and taken with full knowledge of the levy, &e., ■and prays account of the sum due on the mortgage, to be let in to re■deem, &e.
    
      
      Gr. Poos and G-. J. Smith, for plaintiff,
    insisted that the deed of Sabin and wife to M’Millan was a mortgage only, given to secure the payment of money, treated as such by the parties, and containing on its face a condition of defeasance. They cited Strong v. Stewart, 4 Johns. Ch. 166; 1 Day’s Cases in E. 139; 1 Pow. on Mort. 4 Lond. Ed. 104; Walker v. Walker, 2 Atk. 99; Young v. Peachy, ib. 257. Chancellor Kent, in Henry v. Davis, 7 Johns. Ch. 41, says, “ that every contract for the security of money, or a debt, by the conveyance of real estate, is a mortgage, and that all agreements of the parties, tending to alter in any subsequent event, the original nature of the mortgage, and prevent the equity of redemption, is void.” This doctrine has been recognized in Ohio, Miami ex. Co. v. Bk. U. S. et al, Wright, 252-3, and the authorities there referred to. See also 4 Am. Ed. Fonb. Eq. 494, note, where the authorities are collected. Conditional deeds are not favored, and where there is any doubt, the-court will determine the deed a mortgage. Conway v. Alexander, 7 Cranch, 218. It is one distinctive characteristic of a' mortgage, that there is a mutual remedy between the mortgagor and mortgagee, but-this never exists where the deed is purely conditional. 1 Mad. Ch. 515 to 519. The assignment of the mortgage debt by M’Millan to M’Cormick, and the discharge of it by Hibben at the request of Sabin, extinguished the debt, and operated a release of the mortgage to Sabin. 1 Johns, Ch. 589; 2 Gal. 152; Coxe Dig. 493; *2 Marsh. 109; Green v. Hart, 1 Johns. 582; Teirnan v. Beam and others, 2 Ohio, 383.
    R. B. Harlan, for the defendants,
    contended that the deed to M’Millan was clearly not a mortgage. There is no stipulation in it for the payment of money or the .doing of any other act, nor proviso-making it void upon the happening of any event. It merely purports-to give Sabin a privilege of repurchasing, but in no way imposes upon him an obligation to do so, or to repay, which could be enforced, and so M’Millan was by the deed-left without the remedies of a mortgagee. 7 Cranch, 218, 225; 1 Mad. Ch. 517; 4 Mass, 456; 12 Mass. 456 ; 1 Wash. 125 ; 1 N. H. 39. If the deed was not a mortgage on its face, as to Hibben it can not he held one, because he purchased without notice. 3 Wend, 208. If the deed was not a mortgage, then Sabin’s right passed by the deed, and inasmuch as he did not avail himself of the privilege of repurchase within the two years, it was wholly gone before the levy. 2 Yerg. 6; 2 Bibb, 224-5; 4 Kent. C. 144; 5 Bac. Ab. 626; 2 Cruise Dig. 86; 1 Mad. Ch. 517-18 and note. ; 2 Fonb. Eq. 262; The title of Sabin, being at best only an equitable-one at the time of the levy, was not bound by it. 8 Ohio, 23-4; 1 Ohio, 314; 18 Johns. 18, 94; 9 Cow. 73; 2 Bibb, 94.; 7 Ohio, 228; 3 Ohio, 238; 6 Johns. Ch. 423. Hibben having made his contract before the sheriff’s sale, has the elder equity, and will be protected here-1 Blackf. 94; 1 Bibb, 523.
   By the Court,

Lane, C. J.

The question on which this case turns-is, whether the deed from Sabin, in 1822, was a mortgage, leaving in him the right of redemption ? Because, if he had in him the interest of a mortgagor in possession, his right to redeem the mortgage passed to the purchaser at the sheriff’s sale. Other objections to the sale are-raised by the parties, but it is unnecessary to consider any other than this.

The deed itself is ambiguous. The sale is not absolute, but it does not necessarily imply any other interest in Sabin, than a right to repurchase, or an authority to sell. The possession continued vacant until Hibben’s purchase, except some slight acts of ownership by M’Millan — the taxes were paid by him. No proof is made of any previ ous dealings between the parties — no note or covenant to pay money is shown. The answers both of Sabin and M’Millan, deny in-the most positive terms, that the parties intended it as a mortgage, or-that any debt subsisted between them ; or that they designed anything else, except to secure to Sabin the privilege of repurchase. It is ^admitted, however, that in 1831 or 1832, a sale of this land was made by M’Millan to Sabin ; but the answers aver it was not under the-privilege retained in the deed, which had been abandoned long before,, but under an entirely new agreement. The consideration was five hundred dollars, one hundred and eighty or one hundred and eighty-five of which was paid down, and the remainder in three annual payments, secured by notes. Hinkson proves that sometime in 1833, as-he believes, he drafted an agreement between Sabin and M’Millan, for the purchase of this land, the terms of which he can not recollect. This repurchase is calculated to raise doubts,, but the proof of the agreement of repurchase before the judgment in favor of the Urbana Bank, corroborated the answer, notwithstanding the disparity in dates between the answers and deposition. There is, it is true, much in the case to awaken suspicion, but we nowhere find proof enough to-establish the relation of mortgagor and mortgagee between these parties, against the direct denials of the answers.

In the late case of Glover v. Paine, 19 Wend. 518, a similar •question was presented, and the court held, that the mere fact of a ■ conveyance of land, and an agreement for a reconveyance at a future -day, at an advanced price, at the election of the grantor, afforded no evidence of an intention that the deed should he considered a mortgage, though the question might have arisen, had the deed been given for a pre-existing debt, or on a loan of money, or had the grantor entered into an obligation to repay the consideration money expressed in the deed.

Bill dismissed.  