
    Phinehas Rice et al. Petitioners &c. versus Charles Rice.
    An absolute deed of land and a bond made at the same time to reconvey upon the payment of a sum of money, though unaccompanied by any collateral personal security for such payment, constitute a mortgage; and the mortgagee’s right under the same will pass by a devise of ££ all the obligations for money due to him.’*
    Petition for partition. The case came before the Court upon a statement of facts.
    On the 19th of October, 1807, Nathan Dewing, being indebted to Abel Perry senior in the sum of 400 dollars, conveyed to him the land described in the petition, and on the same day Perry executed and delivered to Dewing a bond, conditioned to reconvey the land in two years, provided Dewing should in that time pay him that sum with interest. These were the only papers that were executed between them. On the 30th of December, 1806, Perry made his will, and appointed his son Abel Perry executor, and among other things, bequeathed to him 11 all the obligations for money that might be due to him, the testator, at the time of his decease.” The testator died in April 1808, and in June following the will was proved and allowed. At April term 1811 of the Court of Common Pleas, the executor brought an action of ejectment to recover possession of the land for the non-payment of the 400 dollars and interest; and at the next September term he recovered judgment for possession, unless the sum of 512 dollars should be paid in two months and interest thereon; and on the 10th of December next ensuing a writ of possession was issued, and on the 28th of the same December the executor, having previously received full satisfaction of the same sum, interest, and cost of suit, by his deed of release and quitclaim reconveyed the land to Dewing. The respondent held under Dewing. The petitioners were heirs at law of Perry senior, and the land was not devised by him, otherwise than by the devise to his son before recited.
    Nov. 2d
    
    If the Court should be of opinion, that the land descended to the heirs at law of Perry senior, and that the executor had no right to receive the sum last mentioned, and to execute the release, partition was to be made according to the prayer of the petition ; but otherwise the petitioners were to take nothing by their petition, and the respondent was to recover costs.
    Metcalf, for the petitioners,
    said that the only question in the case was, whether the deed from Dewing to Perry senior was an obligation for money; and he contended that it was not. For a definition of obligation, he cited Co. Lit. 172 a ; 2 Bl. Comm. 344. The obligation here was on the part of the testator to reconvey the land; there was not even an imperfect obligation on Dewing to pay him any sum of money. This question has already been decided by this Court in the case of Rice et al., Petitioners for Partition, v. Bird et al.
      
       The only way in which Dewing could have obtained a legal reconveyance, is the one prescribed by St. 1783, c. 32, § 4. If that mode had been pursued, the money paid by him would have been received by the executor to the. use of the heirs at law.
    
      March term 1827, in Suffolk
    
    Richardson, for the respondent,
    cited St. 1788, c. 51, § 4. Parker C. J. delivered the opinion of the Court. The question in this case relates to the title to the land described m the petition ; and we think that this is very clearly ik. ihe' respondent, whatever may be the construction of the will in regard to the rights of the executor and the heirs, as to the proceeds of the estate. It is manifest that the deed to Perry senior and the deed of defeasance made by him, constituted a mortgage. There had been no foreclosure, nor even an entry by the mortgagee for condition broken. It is not the less a mortgage, because there was no collateral personal security for the debt taken at the time. The grantee could no otherwise have acquired an indefeasible estate, than by entry to foreclose, or judgment as in cases of mortgage ; and his estate was liable to be defeated at any time, by the payment of the debt and interest within three years after entry for condition broken, or the execution of a writ of habere facias, upon the conditional judgment prescribed by statute in cases of mortgage. This was in every sense therefore a security for money, at the time of the decease of Perry senior, and passed to his son by the bequest of all obligations for money.
    The distinction between this case and the one cited by the counsel for the petitioners, of Rice et al. v. Bird et al., is, we think, very apparent. In that case, although the original conveyance from Morris to Perry and the bond of defeasance made and delivered the same day, constituted a mortgage, yet the change which took place two years after-wards by the consent of all the parties to the original transaction and of Clark, who was substituted as the debtor instead of Laughton or Morrill, deprived it of that quality. The original bond of" defeasance was given up and cancelled, and a new bond was made and delivered to Clark, bearing date of the time of this substitution, which was two years after the conveyance to Perry. This bond was in law only a personal contract, and had no bearing on the title to the land. The bond itself was functus officio a year before the death of .Perry the grantee, who by his deed became seised of the land, and who at the time of his death was not even under any personal contract to reconvey, or to convey to Clark. Whether he remained willing to part with the land on payment of the debt and interest after Clark’s right to exact it, or damages for not doing it, on the bond, had ceased, the Court could not tell, and they were obliged to consider that it was not a security for money when the will was made, so as to pass by the words of the will.
    It is true the judge who tried that cause intimated an opinion, that even if the conveyance partook of the nature of a mortgage, it was not a security for money, so as to pass by the will, because there was no note or other collateral security which would enable Perry to enforce the payment of the debt in money. But it does not appear, nor do we believe, that the cause was decided on that point by the Court, for there was a more satisfactory reason given by the same judge, which probably was adopted by the Court, viz. that the conveyance, if ever a mortgage, had ceased to be so at the time of making the will, and at the death of the testator.
    There is nothing in that case, therefore, to be overruled by our decision in this. Here the contract was unquestionably a mortgage for security, and therefore was an obligation for money, within the meaning of the testator as expressed in his will. It passed therefore to his son, the executor, and the respondent holding title under him cannot be disturbed.
    
      Petitioners take nothing, fyc. Costs for respondent.
    
    
      
       The cáse alluded to had relation to the devise recited in the text, and was tried before Jackson J. at October term 1818 in Middlesex. It ap peared that one Laughton conveyed the land of which partition was prayed to one Morrill, and Morrill, on the 20th of February, 1804, conveyed the same to the testator. Both of these deeds were in the common form for the conveyance of an absolute estate in fee simple. The petitioners were heirs at law of the testator. The respondent claimed the whole land under Abel Perry junior, and produced a deed dated March 9, 1812, from Perry junior to one Clark, in fee, and a like deed from Clark to the respondent. He also produced the will of Perry senior, and contended that the right to the land passed by the devise in question, because it was conveyed to the testator by way of mortgage and as a security for money lent. Morrill testified that Laughton was desirous to borrow some money, and that the testator was willing to lend it, taking the land as security therefor; but that the testator preferred having the conveyance pass to him through Morrill. Thereupon the deeds were executed as above mentioned, and the testator at the same time gave a bond, dated on the same 20th of February, to Morrill, in the penalty of 1000 dollars, with condition to convey the land to Morrill upon payment of 359 dollars on or before the 20th of November, 1804. This condition was preceded by a recital, that Morrill had conveyed the land to the testator to secure the payment of that sum. These were the only papers which passed between Morrill and the testator. On the 28th of March, 1806, Laughton being indebted to Clark, and the land being worth much more than the 359 dollars, Clark was desirous to secure his demand out of the same land, after the debt to the testator should be paid. For this purpose it was agreed between all the parties, that the bond to Morrill should be given up, and that the testator should give a new bond to Clark. The first bond was accordingly given up and cancelled, and the testator gave a bond, dated March 28,1806, to Clark, in the penalty of 1000 dollars, reciting by way of condition, that whereas Laughton had conveyed the land to Morrill and Morrill to the testator, he the testator promised to give Clark a quitclaim deed of the same, upon his paying to the testator the sum of 458 dollars in one year from that date.
      The judge was of opinion, that the original conveyance to Perry, even if it partook of the nature of a mortgage so far as to be redeemable by Morrill or Laughton, was not an obligation for money due to Perry; inasmuch as he had no means to enforce the payment, but it was in the option of the borrower to pay it or not: —And also, that if it was originally a mortgage and an obligation or security for money, it lost that character when the first bond of Perry was cancelled and the new one given by him to Clark. The judge therefore directed a verdict for the petitioners, subject, &c.; and at March term 1820, Parker C. J. and Thacker J. and Wilde J. being present, it was ordered that partition be made.
      
        Metcalf said he was informed by one of the counsel in the case, that the ground of the decision was, that the conveyance to Perry was not an oblige tian for money.
    
    
      
       See Blaney v. Bearce, 2 Greenl. 132; Newhall v. Burt, 7 Pick. 157; Newhall v. Pierce, 5 Pick. 450; Stocking v. Fairchild, 5 Pick. 181; Harrison v. Phillips Academy, 12 Mass. R. 456; Erskine v. Townsend, 2 Mass. R. 493; Fuller v. Pratt, 1 Fairfield, 197; Newberry v. Bulkley, 5 Day, 384; Daniels v. Alvord, 2 Root, 196; Benton v. Avery, 2 Root, 279; Reading v. Weston, 7 Connect. R. 143.
    
     