
    Reynolds and Others v. Davidson’s Administrator and Others.
    Mortgage.—Deed.—A executed a conveyance to a trustee for the use of his infant sou B, in which it was recited that A had received the sum of $3,000 belonging to his son. The consideration of the conveyance was declared to bo “the said sum of three thousand dollars, or so much thereof as the premises hereinafter described may be worth, and the sum of one dollar.” Covenants of seizin and of warranty were contained in the instrument, and there was no defeasance nor any covenant to pay the said sum of three thousand dollars.
    
      Held, that the instrument was not a mortgage but a deed, by which a title in fee passed to the son, in satisfaction of so much of the debt as the land was worth.
    APPEAL from the Jefferson Circuit Court.
   Gregory, J.

Davidson’s administrator, and his heirs at law, filed their complaint against Henry Francis Reynolds, Tyre Pogue, and the heirs' at law of John A. Reynolds, deceased, to foreclose an instrument claimed to be a mortgage, executed in 1847 by John A. Reynolds to his minor son Henry Francis Reynolds.

The main question in the case, and the one that disposes of all others, is, does the instrument which is the foundation of the action, on its face, amount to a mortgage ? The court below charged that it did. The instrument is substantially as follows: “This indenture made,” &c., “by and between John A. Reynolds, of,” &c., “ of the first part, and Tyre Pogue, of,” &c., “ of the second part, witnesseth, that whereas the said John A. Reynolds, who is father and natural tutor of his son Henry Francis Reynolds, who was born in the State of Louisiana, and who, by the laws of that State, inherited property from his deceased mother to a large amount, which property, and the proceeds thereof, to the amount of three thousand dollars, or more, have come into the hands and been used by the said John A. Reynolds,” &c. “ The said sum, three thousand dollars, or so much thereof as the premises hereinafter described may be worth, and in consideration of the sum of one dollar, to me in hand paid by the said Tyre Pogue, the receipt of which is hereby acknowledged, the said John A. Reynolds has this day bargained and sold, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Tyre Pogue, for the use of and in trust for the said Henry Francis Reynolds, his heirs and assigns forever, the following prem-ises,” (here follows the description of the land,) “to have and to hold the said premises, with the appurtenances and privileges thereunto belonging, or in any wise appertaining, to the said Tyre Pogue, his heirs, executors and administrators, to and for the use of, and in trust for, the said Henry Francis Reynolds, his heirs and assigns forever.” Then follow covenants of seizin, against incumbrances, and general warranty.

It is claimed that this instrument, on its face, shows that it was given to -secure the debt of three thousand dollars due from the father to the son. We think otherwise. The conveyance is absolute; there is no defeasance, nor is there any covenant to pay. We hold that it conveyed the land in fee to Henry Francis Reynolds, in satisfaction of his debt, to the extent of the value of the land. Henry Francis, on arriving at full age, had- his election to repudiate the transaction, or to accept the conveyance. If he elected to do the latter, then his debt, to the extent of the value of the land conveyed, was thereby satisfied. The question of value could have been settled in a suit by Henry Francis- against his father for the balance, if any had been claimed.

H. W. Harrington and G. A. Korbly, for appellants.

G. J3. Walker, for appellees.

There are other questions argued, but with this view of the case they have no bearing on the final result, nor are they questions in the case. The court below erred in overruling the motion for a new trial.

The judgment is reversed, with costs, and the cause, remanded, with directions to grant a new trial, and for further proceedings.  