
    Wentz et ux. against Dehaven, Executor of Dehaven.
    In Error.
    THIS cause came before the court on a writ of error to Montgomery county.
    On the 5th of May, 1798, Mathias Wentz and Lydia his wife, executed a mortgage to John Dehaven, to secure the payment of a bond of the same date, for 150 pounds, payable in one year with interest.
    On the 1st September, 1802, John Dehaven, who was the father of Lydia Wentz, signed in the presence of two witnesses a paper, to which no seal was affixed, and which he, at the time, delivered to Mathias Wentz.
    
    The following is a copy of the paper:
    “ September 1st, 1802. This is to certify, that I have a “ bond and mortgage from Matis Wence, which I intend to “ give up to them, as I never intend to demand it from them, “ nor any part of the interest due, or to become due at any “ time.
    “JOHN DEHAVEN,”
    “ Witness present,
    “ Peter Dehaven,
    
    “ Joña. WentzP
    
    In Pennsylvania a mortgage may be released by an instrument not under seal.
    A mortgagee signed in the presence of two witnesses a paper expressed thus: “This is to certify, that I have a bond and mortgage from A, which I intend to give up to them, as I never intend to demand it from them, nor any part of the interest due, or to become due at any time.” This paper to ■which no seal was affixed, he delivered to the mortgagor, who ■was the husband of his daughter, but kept possession of the bond and mortgage; and died without having demanded either principal or interest. Held-, That this was an absolute and immediate release of the debt, and an advancement to the daughter.
    
      During the life of John Dehaven, neither the principal of the debt, nor any part of the interest, was ever paid or demanded ; but on his death, which took place about ten years after he had signed this paper, his executor David Dehaven sued out a scire facias on the mortgage.
    At the trial of the cause, the defendant relied on the writing above mentioned, as a release of the debt •, but the president of the court charged the jury, 1. That as the instrument set up by the defendant was not under seal, it could not operate as a discharge of the mortgage which was under seal.
    2. That it expressed merely an intention to give up the mortgage, which was never carried into effect.
    3. That the instrument not being sufficient to release the principal, the interest was not discharged.
    A verdict was accordingly found for the plaintiff, and the court at the request of the defendant’s counsel filed of record a copy of their charge, upon which a writ of error was taken out.
    
      Frazer and Ingersoll for the plaintiff in error.
    
      First, It is not to be denied that in strictness of law, a sealed instrument cannot be released by an instrument of inferior dignity. But this rule never prevailed in equity, and in Pennsylvania, where there is no court of chancery, any equitable defence may be pleaded in an action at law. Swift v. Hawkins,
      
       Hartzell v. Reiss.
      
       In equity, a mortgage is considered merely as a charge upon land, for securing the payment of money. Payment may be proved without a release, and it has been held, that even a parol forgiving of the debt is a good discharge. Powell on Mort. 53. (3d ed.) 3 Eq. Ab. 591. This principle is very broadly laid down in Martin v. Mowlin, by Lord Mansfield, who says; “ whatever will'give “ the money, will carry the land along with it. It will pass “ by a will, not executed with the solemnities required by “ the statute of frauds. The assignment of the debt, or for- “ giving it, will draw the land after it as a consequence, though “ it be forgiven by parol." The same doctrine is. recognised by this Court, in the case of Lessee of Simpson v. Ammons. The rigour of the ancient law with respect to sealed instruments is now much softened. It is settled, that in debt on bond, the obligation may be avoided by evidence, that the con* sideration was illegal, Guichard v. Roberts;
      
       and that parol proof may be given to show, that the obligee has received a certain sum in satisfaction. Henderson v. Moor.
      
    
    Second, But it is said the instrument cannot take effect for want of a consideration. The consideration was a good one. The wife of the mortgagor, herself a party to the deed, was, the daughter of the mortgagee. The release was for her benefit, and there can be no doubt, that the father intended both the principal and interest to be an advancement 'to his child, since neither was demanded while he lived. Natural love and affection constitute a good consideration for a conveyance, and why not for the release of a debt ? In equity, if a man take a conveyance in the name of his son, it is regarded as an advancement to that son; and if the son be put into possession and marry and die, his wife shall be endowed. Even a grandfather purchasing an estate in the name of his grandchild, where the father is dead, is considered as having made the purchase for the advancement of the grandchild. 1 Eq. Ab. 381. B, pl. 6. 382. B, pl. 8, 9, 10, 11.
    Third, According to the rules of nice grammatical construction, it is true the paper may be considered as merely inchoate; as importing an intention to do an act, which is never carried into execution ; but the language of an unlettered man is not to be measured by the standard of criticism. If the intention of the person who executes the instrument can,be collected from the expressions used, taken in connexion with the relative situation of the parties, and any other circumstances which may serve to illustrate the subject, the court ought to establish it. Toner v. Taggart. Here every thing tends to show a determination to make an abso», lute and immediate gift. It is in favour of a child, the paper is delivered to the husband of that child, and during the life of the father no demand is made for any part of the debt.
    Instruments expressed in the future tense, are in many instances held to constitute present covenants, as “ it is intended to levy a fine,” “ yielding and paying” in a lease, “ I “ will be ready at all times, &c.” although referring to something yet to be done, take effect immediately. 2 Com. Dig. Cov. A, 2. 1 Roll. Ab. 519. c. 10, Hollis v. Carr.
      
    
    Fourth, At all events the plaintiffs in error are not chargeable with interest. It is plain from the writing, that John Dehaven intended to give it up, and in conformity with that intention, he never demanded it.
    
      Potts and Chaunce'y for the defendant in error,
    argued, First, That at common law, a release of a sealed instrument must always be under seal; the rule being eodem modo quo oritur,eodem modo dissolvitur. 5 Bac. Ab. 682. Release, A, 1. Rogers v. Payne. Nor can a less sum be taken as a satisfaction of a greater, without an acquittance, Co. Lit. 212. b. In equity it must be admitted the rule is different; a mortgage is a mere charge upon the land to secure a debt, and when the debt is paid, the mortgage is discharged. It may, it is said, be discharged even by a parol forgiving of the debt; but to give efficacy to such a discharge, delivery of the bond is absolutely necessary. 3 Eq. Ab. 617. The dictum of Lord Mansfield on this subject, in Martin v. Mowlin, for the point was not before the court, must be understood to apply only to those cases in which the bond is surrendered.
    
      Second, Admitting the judge below to have been wrong in his charge on this point, upon a fair construction of the phraseology of this paper, it amounts neither to a present release, nor to a contract for a future release. It indicates no immediate determination of the mind; but expresses an intention to do an act which is never performed. The words, <£ I never intend to demand the interest to become due at any “ time,” surely preclude the idea of a present release. Nor can it stand as a contract to release ; for there is nothing in the paper to give it that character. The expression of an intention to do an act, implies a right not to do it. The determination of Dehaven to retain a controul over the debt, is strongly manifested, by his keeping possession of the bond and mortgage. In a case so doubtful, equity would not relieve, and of course there can be no relief in a court of law under such circumstances.
    
      Third, There was no consideration; and on a nudum par-turn there is no more remedy in equity than at law. No con;. sideration whatever is mentioned in the paper; no valuable one is pretended; and as the land mortgaged was the property of Wentz, the son-in-law of the mortgagee, there was no good consideration, because blood, which is essential, was wanting. The cases cited on the opposite side, from Eq. Ab., do not apply ; because they are all cases of advancements to children, where the father vested the legal estate in the child.-
    
      
       1 Dall. 17.
      
    
    
      
       1 Binn. 289.
    
    
      
       2 Burr. 979.
    
    
      
      
         1 Binn. 177.
    
    
      
       1 Wm. Bl. Rep. 445.
    
    
      
      5) 5 Cranch, 11.
      
    
    
      
       5 Binn. 496.
    
    
      
       2 Mod. 91, 2.
    
    
      
       2 Wil. 376.
      
    
   Tilghman C. J.

David Dehaven executor of John Dehaven, brought suit against Mathias Wentz and Lydia his wife, on a mortgage given by them to the plaintiff’s testator, who was the father of Lydia Wentz. The defendants gave in evidence the following writing, executed by John Dehaven, in the presence of two subscribing witnesses. [Here the Chief Justice read the writing.] It was contended, on the part of the plaintiff, and so decided by the court below, that this writing was not a discharge of any part of the mortgage debt, principal or interest, and that for two reasons : 1st. Because it had no seal; 2d. Because in its terms it did not import a release, but only an intention to release.

1. It is an ancient principle of the common law, that no contract can be dissolved but by the same solemnity with which it was created. A contract under seal, therefore, cannot be discharged without a release under seal. It was no plea to a bond, with condition for the payment of money on a certain day, that the money was paid either before or after the day, unless accompanied with an acquittance under seal. Payment at the day, indeed, was a good plea, because, the condition being performed, the forfeiture was prevented. But although there might have been some reason in this rule, at a time when contracts were few, and great weight was attached to the solemnity of a seal, yet it was found extremely inconvenient, and not very reasonable, at á more advanced period, when, from an increased population and extended commerce, contracts were multiplied, and seals less regarded. Accordingly, whenever a debt was paid, courts of equity gave relief, without regarding whether payment was made strictly according to the condition, or with, or without, acquittance; and, at length, by stat. 4 Ann. ch. 16. sec. 12. the courts of law were permitted to exercise the same authority. But in this commonwealth, where, for want of courts of equity, the courts of law have assumed chancery powers, payment at any time before the action brought, though without an acquittance, was always a good plea. This has not been denied; but it is said, that where there has been no payment or satisfaction., an obligation under seal will not be considered as released, either at law or in equity, without an' acquittance under seal, unless the obligation is given up. But it appears to me, that this is too broad a position. It is certain, indeed, that if the obligee declares by parol, that he forgives the debt, and delivers the bond to the obligor, the debt is extinguished; but it does not follow that giving up the bond is essential. A declaration in writing that the debt is forgiven, is as certain proof of an intent to extinguish the debt, as a parol declaration and delivery of the bond. And I know of no technical difficulty in the way of the extinguishment. A promise to pay money is very different from forgiving the payment of money. The promise is not obligatory without a consideration ; but no consideration is necessary for the forgiving of a debt. A mortgage, although in form a conveyance of land, is in substance but a security for the payment of money; and the debt being paid, or in any other manner extinguished, the mortgagee becomes a trustee for the mortgagor. It is laid down by Lord Mansfield in general terms, in Martin v. Mowlin, 2 Burr. 969. 979, that if a mortgage debt is forgiven, only by parol, the mortgagee becomes a trustee for the mortgagor, for the land. The debt is the principal, and the land the accessary. I do not think it necessary, however, to decide, whether a parol forgiving of a bond debt, without delivery of the bond, would be an extinguishment in equity, because the case before us is much stronger. It is not a parol, but a xuritten declaration, attested by two witnesses, and accompanied with delivery of the writing to the party in whose favour it was to operate. It is very material too, that the operation is in favour of a daughter and her husband, and may fairly be considered as an advancement made to a child. Natural affection is a good consideration to raise an use. And supposing (as I will for the present) that the writing contains a clear and unequivocal relinquishment of the debt, it would be most unjust, and against all good conscience, if, after a lapse of twelve years, during which, the mortgagors i elied on the release, and regulated their affairs accordingly, the executor of the mortgagee were permitted to recover both principal and interest. For it is to be observed, that .the mortgagee himself, true to his word, never demanded payment of either.

2. Thus far I have taken for granted, that the writing shows ah intent to forgive the debt absolutely. If it does not, the defendant has no ground to stand upon. That point, therefore, must be considered. At first sight of this instrument, it strikes us that it is attended with considerable solemnity. It begins, This is to certify, — and it is attested by two subscribing witnesses. A thing that is certified is meant to be communicated to others: What then could be John Dehaven’s meaning? Did he only mean to make known, that although it was his present intention to forgive this debt, yet he retained the power to alter his mind, and demand payment ? It would have Hardly been worth while to call witnesses to this, and to deliver the paper to his son-in-law; because, if it was to have no operation, it was of no value. Although the expressions, in strict construction, go no further than an intent, yet I think it would not be straining them too far, to construe them as an absolute gift, for the benefit of a child. If there is an obscurity in the words, the rule is, that they should be construed against the speaker, and in favour of the persons to whom spoken. Yet it is a case on which light might be thrown from extrinsic circumstances; such as the relationship of the parties, the fortune of the mortgagee, the number of his children, the advances made to them, and perhaps subsequent transactions between mortgagor and mortgagee. The matter might, under all these circumstances, have been submitted to the jury, if the court had thought proper; but I am by no means for taking from the court the right of deciding on the construction of a writing, where no extraneous facts are necessary to be taken into consideration. On the contrary, I hold it to be of the utmost importance, that this right should be firmly asserted and never relinquished. The court might, or might not, have submitted this writing to the jury, according to their discretion. But at all events, there appears to me to be error in the charge. For, taking the case as it stands on the bill of exceptions, stripped of every fact but that of the relationship of the parties, I should construe the writing as an absolute forgiving of the debt. I am, therefore, of opinion, that the judgment should be reversed, and a venire de novo awarded.

Yeates J.

The question before us does not depend on the technical rules of pleading a release. It certainly must be under seal, to enable a defendant to plead it in bar against a deed. The true point in dispute is, was the instrument of 1st September, 1802, a valid contract, binding on the party signing it, and his personal representatives ? It was the deliberate voluntary act of the plaintiff’s testator, subscribed by him in the presence of witnesses, “ certifying that he intended to “ give up the mortgage executed by the son-in-law and his “ daughter, as he never intended to demand it from them, “ nor any part of the interest due, and to become due at any " time.” The delivery of the paper to the mortgagors excluded every idea of the testator having a power to revoke his engagement, and no circumstances have been shewn, which would tend to establish that he thought he had such a power. He has not declared at any time that his mind was changed, and although he survived his signature above ten years, we cannot collect from any thing disclosed on the trial, that he claimed any part of the principal or interest. This instrument, therefore, in my opinion, was a valid contract, and ought to have its fair operation against the mortgagee, under the words and spirit of the old defalcation act of 1705. Its plain and obvious meaning was, to forgive the debt according to the expressions of Lord Mansfield, already cited in Martin ex dem. Weston v. Mowlin, (2 Burr. 978, 979.) by way of advancement to his daughter and her husband. “ Whatever will give the money secured by the mort- “ gage, will carry the mortgaged premises along with it to “ every purpose. The forgiving the debt will draw the “ lands after it, as a consequence. It will do it though the « debt be only forgiven by parol." I cannot conceive that this writing is susceptible of any other construction. I am therefore of opinion, that the judgment below be reversed, and a new trial be awarded.

'

Brackenridge J. concurred.

Judgment reversed, and a venire de novo awarded.  