
    THOMAS D. SHERWOOD, Plaintiff and Respondent, v. THOMAS B. WILSON, Defendant and Appellant.
    
      [Decided December 31, 1870.]
    Where a conveyance, absolute on its face, was intended as a mortgage, the court, upon payment of the mortgage debt, will require a reconveyance of the property to the original owner.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment.
    , The action was to compel a conveyance by the defendant to the plaintiff of certain lands in the State of Georgia.
    The action was tried by Judge Spencer, without a jury, who found the following facts: That on the 31st of August, 1867, by deed of that date, Porteus B. Roberts and Mary A., Ms wife, sold and conveyed to Henry 0. Gardiner and Thomas D. Sherwood (the plaintiff) a certain tract of land in the complaint particularly described.
    That on the 31st of October, 1868, said Gardiner sold, and by a deed dated October 31, 1868, executed by himself and wife, conveyed all his and their interests in said lands to Sherwood, the plaintiff.
    That the two aforesaid deeds were recorded in the office of the clerk of the Superior Court of the County of Muscogee, at Columbus, in the State of Georgia (in which said county said lands were situated), on the 22d day of December, 1868.
    That on or about April 17,1867, Roberts executed and delivT ered to the defendant a conveyance of the tract of land by way and as a mortgage to secure, with other property, the sum of $15,000, or thereabouts, moneys due or to become due, from Roberts to Wilson.
    
      That previous to the execution of the conveyance by Roberts and wife to Gardiner and Sherwood, $13,000 or thereabouts of said $15,000 had been paid.
    That on the 21st day of June, 1869, Roberts paid to said Wilson the sum of $1,000 in cash, and gave to him a certain order for stock, which money and order for stock Wilson received in full satisfaction of his mortgage, or conveyance by way of mortgage, and of any and all lien or liens upon the lands, and that in consideration thereof the defendant, on said day, executed and delivered an agreement, in writing, in the words and figures following :
    “Hew York, June 21, 1869.
    “For value received, I hereby agree to make a quitclaim deed to a farm in Georgia (deeded by P. B. Roberts to me), to T. D. Sherwood on demand.
    “Thomas B. Whlsoh.”
    Which agreement was on the same day delivered to the plaintiff.
    That subsequently thereto the defendant was requested to make a quitclaim deed of the land to the plaintiff, but refused so to do.
    That the land referred to in the agreement was and is the land described in the complaint in the action.
    The justice found as conclusions of law—
    That any lien which the defendant had upon the lands in the complaint described, as security for any moneys due, or to become due, to him or otherwise, ceased and was terminated on the 21st day of June, 1869, and that the plaintiff was entitled to a conveyance of the lands from the defendant by a quitclaim deed of the date of June 21, 1869. And he ordered judgment accordingly, with costs.
    The defendant appealed from the judgment after having excepted to the findings of fact and conclusions of law.
    
      Mr. Francis Byrne for appellant.
    The promise to convey to the respondent was a conditional one, and dependent on the performance of the agreement of Roberts to pay the cash, and deliver the Marion (or Giles Wales & Co.’s) watch stock; it was not fulfilled, consequently the appellant was not obliged to execute the deed to respondent.
    There was no consideration as between the appellant and respondent for the promise to execute said deed to respondent. He had already a conveyance of the land. The appellant was mortgagee (by deed), and his lien was not discharged. The respondent did not part with anything on the faith of the appellant’s promise, and has not been prejudiced by a breach thereof (Headley et al. v. Electa Foundry, 41 Barb., 279).
    
      Mr. Thomas D. Sherwood for respondent.
    Independent of the fact that the mortgage was satisfied and defendant’s lien discharged, as found by the j ustice, the agreement of June 21 to convey the land to the plaintiff is a good and valid contract, founded upon a good and valuable consideration, to wit: $1,000 in cash that day received by the maker, and should be enforced.
    The defendant then well knew that the plaintiff claimed the land, and that Roberts was bound to plaintiff to free it from defendant’s lien. Roberts paid defendant $1,000, and defendant entered into a new contract with the plaintiff respecting it; and in consideration of the $1,000 received by him made the contract with plaintiff.
    Had the defendant not have made that contract he would not have received the $1,000. He gets the $1,000 and still keeps the order fontiie stock, and henoe is so much the better off, to wit: $1,000, and that is a good consideration for the contract.
   By the Court:

Monell, J.

It was not disputed that the conveyance from Roberts to the defendant of the Georgia lands was by way of mortgage, to secure the payment of a sum of money. "Upon the payment of such sum of money the owner of the property, incumbered by the mortgage, was entitled to have the incumbrance removed.

There was some contradiction in the evidence in reference to the sum loaned by "Wilson, and there may have been some doubt whether "Wilson had received all that was due to him.

But there was a settlement between Roberts and Wilson, when it was agreed that Roberts should return to Wilson twenty-five hundred dollars of watch company stock, which, with the payments previously made by Roberts, both parties understood, and, I think, fully agreed, should be in full satisfaction of the mortgage.

In pursuance of such settlement, Roberts gave to Wilson an order for the stock, and thereupon Roberts executed and delivered to Wilson the instrument containing an agreement by Roberts to convey the lands to Sherwood, the plaintiff; and which instrument was afterwards delivered to the plaintiff.

The court has found as a fact, that the money paid and order for stock delivered by Roberts to Wilson were received by the latter in full satisfaction of his mortgage, and I think the evidence was sufficient to sustain such finding. Indeed, both Wilson and Roberts agree, that with the twenty-five hundred dollars of stock the mortgage debt was paid, but Wilson claimed that although he took the order he did not get the stock. lie says he took the order down to the persons on whom it. was drawn, and they said it was all right and would give the stock in a few days. In the mean time Roberts had pledged it to another person.

At the time of the settlement and the receipt of the order for stock in satisfaction of the mortgage, Sherwood, the plaintiff, was the owner of the property, and his rights cannot be prejudiced by any subsequent act of Roberts; and a pledge by him of the stock he had agreed to transfer to Wilson, after the settlement, would not, as respects the plaintiff, restore the mortgage.

If the mortgage was in fact paid, and that depended upon the intention of the parties, nothing that might or could transpire afterwards, would defeat such payment.

The only benefit which can be derived, as I think, from the agreement of the 21st of June, 1869, is to use it as a very strong piece of evidence against the defendant. It is not necessary to determine whether it contains any valid obligation upon which an action could be maintained, for there is enough beside it in the case to sustain the judgment.

But as an admission in writing signed by the defendant, it should, as between him and the plaintiff, be regarded as conclusive evidence of payment.

I am, therefore, of the opinion, that as the conveyance to Wilson was absolute in terms, the plaintiff had the right to demand a quitclaim from him; and as the evidence sustains the finding that the debt was paid, the judgment was. correct.■

Judgment affirmed with costs.  