
    [Pittsburg,
    September 18, 1827.]
    JOHNSTON against GRAY.
    APPEAR.
    ¿VI., on the 17th of February, 1813, by articles of agreement, stated he had sold to I, a tract of land, payable three hundred dollars in hand, one hundred dollars in thirty days, four hundred dollars on the 2d of April, 1815, and four hundred dollars on the 1st of April, 1816; he was to give possession on the 2d of April, 1815, M. to enjoy the right of. redemption at any time before the 2d of April, 1815, and possession till then. On the same day, he made a deed to I., with a clause that if M., his executors, &c. (the word assigns being struck out,) should pay or cause to be paid to I., four hundred dollars with interest, &c., on the 1st of April, 1815, then the bargain and sale to be void. On the 17th of February, 1814, M., sold to G., who tendered I. the four hundred dollars, before and on the 1st of April, 1815: held,
    
    1. That this was a mortgage from M. to I.
    2. _ The restriction of the right of redemption to the mortgagee personally, was inconsistent with the nature of a mortgage and void.
    .3. The tender by G., was good, though he did not state in what capacity he tendered, whether as purchaser or of M.
    Where there is no variance or contradiction in the testimony, but it is all consistent and express as to the facts, if the judge in charging the jury express the legal result of the whole evidence, he is not to be considered as taking the facts from the jury.
    Appeal from the decision of the Circuit Court of Allegheny county held before Tod, J.
    This was an amicable action, instituted to decide who was entitled to the surplus, after paying the judgment creditor, arising from a sheriff’s sale. The narr. stated, after premising certain facts, that a discourse was had, in which the plaintiff declared, that by virtue of a certain deed from Henry M^Kellip, jr., to the said Joseph Johnston, he the said Johnston was entitled to have and receive from the sheriff and purchaser at sheriff’s sale, all the amount of money bid for said land, beyond .the amount of debt, interest, and costs of the judgment on which it was sold; and the defendant denied this and a bet, &c. . The plaintiff called a witness, who produced the following writing: “ 17th oí February, 1S13, articles of agreement between H. M'Kellip and Joseph Johnston, whereby M'Kellip stated he had sold to Johnston, all that tract of land whereon he, (M‘Kellip,) then lived, at eight dol-. Jars per acre, containing one hundred and fifty.acres, strict, measure, payable, three hundred dollars in hand, one hundred dollars in thirty days, four hundred dollars on the 2d of April, 1815,. and four hundred dollars on the 1st of April, 1816. That the said M.‘Kellip, is to give Johnston unincumbered possession on the 2d of April, 1815. The said M‘Kellip to enjoy the right of redemption, at any time before the 2d of April, 1815, and to enjoy the possession of the place to that time on this article were indorsed receipts for three hundred dollars, at date of articles, one hundred dollars on the 17th of March, 1813, and four hundred dollars on the 26th of February, 1815.
    “ 17th of February, 1813, deed from H. M'Kellip and wife, to Joseph Johnston for the same land, consideration, eight dollars per acre, or twelve hundred dollars,” describing-it by courses and distances and quantity, with general warranty, and then followed this clause: “ and the said Joseph Johnston, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree to and with the said Henry M‘Kellip, his executors, administrators, and (assigns,) that if he the said Henry M‘Kellip, his executors, administrators, (or assigns,) shall and .will, and truly pay well, or cause to be paid unto the said Joseph Johnston, his executors, administrators, or assigns, the just and full sum of four hundred dollars with interest, at or upon the 1st day of April, 1815, with the expenses of executing this conveyance, then the above bargain and sale to be void to all intents and purposes, any thing herein contained to the contrary notwithstanding.
    
      N. B. The word assigns in the 57th and 59th line struck out before signing.” Joseph Johnston did not sign this indenture; it wás acknowledged by M'Kellip and wife the same day, and recorded on the 26th of February, 1813. Also the plaintiff read a release of M‘Kellip to Johnston of the equity of redemption without date; but acknowledged on the 11th day of May, 1814, and recorded the same day, in these words, “ for a valuable consideration heretofore received by us from Joseph Johnston,- we do hereby release all equity of redemption which we now have, or hereafter may have, of, in or to the foregoing premises or tract of land, hereby confirming and rendering the grant absolute, which was conditional, so that the said Joseph Johnston may have and enjoy in the said bargained premises, an absolute and unconditional estate in fee simple.;” this was indorsed on the'deed of the 17th of February, 1813. M'Creary, the witness, produced four single bills, the consideration of the release of the equity of redemption, each for two hundred dollars, all dated the 11th of May, 1814; the first payable by Johnston to M'Kellip, the 1st of April, 1817, the second, the 1st of April, 1818, the third, payable to M‘Kellip, or, Jane his wife, the 1st of April, 1999, and the fourth payable to M’Kellip or his wife the 1st of April, 2000. These were written by Johnston’s son, and whether the two last were made payable in 1999, and 2000, by mistake or fraud, was not agreed, and the witness said “ these were put into my hands the 11th of May, 1814, to be kept till the termination of the dispute, and I have had them ever since.” He also produced the bond from Johnston to M'Kellip, dated the 17th of February, 1813, for four hundred dollars, payable the 1st of April, 1816, on which was indorsed, “ 7th of February, 1814, to be in force if Johnston gets my place on the 2d of April, 181.5, otherwise, to be void and of no effect.” On the 2d of February, 1S.14, M‘Kellip entered into articles of agreement with James Gray,, by which he covenanted on or before the 20th of March, 1815, to convey and assure to Gray, his heirs and assigns, the one hundred and fifty acres, &e., being the same which M'Kellip by indenture, &c., had sold and conveyed to Johnston, with a clause of redemption. The price was twelve dollars per acre payable, &e., and a reserve of twenty acres, during the lives of M'Kellip and wife, two hundred dollars paid in hand, six hundred dollars payable before the 1st of April, 1815, and the residue in small instalments. " This was acknowledged and recorded the 2d of March, 1S14. 20th of February, 1815, Johnston paid M'Kellip four hundred dollars, the amount of his bond, due the 2d of April, 1815. There was then shown the record of a suit, John M'Kellip, for the use of George Williams against H. M'Kellip, in which was a report of arbitrator's for two hundred and nine dollars, on the 21st of October, 1812, an appeal and trial, and verdict and judgment for the plaintiff in 1817; this bound the land from the date of report; and, on execution on this, the land was sold for two hundred and ninety dollars and fifty cents; the debt, interest, and costs were paid to the plaintiff in the judgment, and the overplus, which exceeded two thousand dollars, was claimed by the plaintiff in this suit.
    
      M‘Creary, the witness, then proved, that M‘Kellip being embarrassed, and among others indebted to Johnston, applied to Johnston for a loan of money, and a mortgage -was drawn by witness. Johnston would not give the money on a mortgage, it was destroyed, the foregoing writings then drawn; there was an express agreement that no stranger should purchase; for this reason, the word assigns was struck out of the clause of redemption. Johnston said if the land had to go from M'Kellip, that he had the first right as he paid the first money. After the witness had drawn it, the word, assigns, was struck out at the suggestion of Johnston’s son. Witness drew the writings according to the agreement of the parties; witness had heard Johnston say often, that Gray tendered him the four hundred dollars; it was admitted this was in the fall of 1814. It was also proved, that Gray tendered the four hundred dollars and interest to Johnston, on the 1st of April, 1815. Adam Johnston (son of the plaintiff,) proved that in 1814, M‘Kellip, tendered back to Gray, the two hundred dollars, which he had paid M‘Kellip on his purchase, that M‘Kellip got the money from James Johnston, and when Gray refused to receive it, M‘Kellip gave it back to Johnson.
    
    The judge who tried the cause did not reduce the charge to writing. Several errors were alleged in that charge, whieh may be reduced to two.
    1. That the judge charged, that on the face of the- papers,- the deed and Article of February, 1813, amounted to a mortgage and no more for the four hundred dollars then lent; and that the parol evidence, if believed, did not alter the case.
    
      2. That this being the case, the clause restricting the power of redemption to the party, was void.
    Baldwin, for the appellant.
    1. There was to be no redemption, after the 1st day of Jlpril, 1815. If not then redeemed, the transaction was to become a sale. Equity will relieve against an agreement of this sort, only where the intention was exclusively a loan. Here a loan was to be a purchase on the happening of a contingency, and equity cannot relieve against the clear intention of the parties. Unquestionably they intended more than a pledge. Here there is no covenant of repayment. 1 Yeates, 579. 5 Binn. 499. 1 Call. 280. 2 Call. 420. 9 Serg. & Rawle, 446. The sale shall be absolute wherever it appears the parties intended it to be soi The English cases also recognize the same principle. 1 Vern. 268. 3 Vern. 190. Ca. in Ch. 220. 2 Ch. Rep. 26. Time may be made of the essence of the contract, 4 Dall. 347; otherwise, where security and not time, is the object of the contract. 2 Bro. P. C. 265. There may be a mortgage which may be a conditional purchase. 5 Bro. P. C. 154. Once a mortgage, and always a mortgage is not of universal application. Prac. in Ch. 95. 1 P. N. 268. 2 Atk. 494. 2 Vent. 364. Pow. Mort. 156, 157. 7 Cra. 215. The question is, was it intended as a mortgage in substance, and put into this form as a cover? Here, the parol evidence ought to have been left in connexion with the writing, to the jury to judge of the actual nature of the transaction. Whether a mortgage or not always depends on the circumstances.
    2. The right of redemption was personal, the word assigns was struck out, expressly to have this effect. The tender by Gray went for nothing, even if made as the agent of M‘Kellip; for the period had elapsed.
    3. Mistake in the date of the bonds is not evidence of fraud; and should not so have been left to the jury.
    4. In charging to find a general verdict for the defendant. If this even be a mortgage, Johnston ought to be reimbursed for what was due.
    Forward, contra.
    
    All other questions are subordinate to this, whether thiswas a mortgage. It is in evidence, that the parties contemplated ,a mortgage, and one was drawn — Johnston objected to the word redemption; M‘Kellip was coerced into the contract. Pow. Mort. 45, 46. The right of redemption may be lost by delay, but that is a distinct circumstance. Pow. Mort. 173. 174. That the money was not advanced all at once, makes no difference; the mortgage is a security for all subsequent advancements. 1 Cruise, 141, sect. 26, 27. Right of pre-emption may be secured, but then it is only in case the mortgagee will give as much as any one else. Not that the estate shall in the mean time be tied up; for, that would be oppressive. The right of redemption is an interest, and may be made the means of raising money to pay the loan. But there was a tender in fact both at the day and before the day, by which Johnston’s estate, of whatever nature, was divested. 6 Bac. 450. No right exists to claim interest after tender.
    
      Baldwin, in reply.
    Where a benefit or kindness is intended, it may be restricted to the person, and not extend to an assignee.
   The opinion of the court was delivered by

Huston, J.,

(after stating the two points before mentioned.)— The cause must eventually turn on these points, and in discussing them, I shall notice some matters discussed in the argument, intimately connected with, if not depending, on how these two were decided.

The rule that what is once a mortgage, shall always be considered a mortgage, though stated as a general rule, will perhaps be found subject to several exceptions. Length of time, together with the subsequent conduct of the parties,' have often varied it — but I believe it is never varied by clauses inserted in the writings at the time of the loan of money. The needy borrower is not considered as treating on equal terms with the lender — hence the lender may stipulate for the pre-emption if the borrower sells, yet he has not been permitted, at the time of the loan, to stipulate that he shall in a certain event become the purchaser at a price then agreed on. The whole power of the court is founded on the idea that a needy man requires protection against the effect of his own agreements with one who having the power to relieve him from present distress, was found too often to grant such relief on unconscionable terms. A common mortgage is as plain and express an agreement for an absolute sale in case the money is not paid on the day as can be expressed. Yet it has long ceased to be any thing else than a security for money. And it would be an imputation on the administration of justice, if the same agreement differently expressed by the scrivener, though not more plainly, should have a contrary effect. If then the transaction was really a loan of money, secured on (and, it is nothing more, whatever language may be used in expressing the contrae*, or whether that contract is all contained in one instrument, or divided among several. And as in a plain express mortgage, the right of redemption is a right inseparable from the estate of the mortgagor, it is equally an essential right it* him, though the igreement be expressed in a more complicated form and manner The right of redemption cannot be destroyed or taken away, and of consequence cannof be restrained or fettered — for if it could, it would soon cease to exist. If this be a mortgage then, the attempt to confine the right of redemption to the mortgagor personally, as being a restraint on that right) would he void — it would in most instances he equivalent to denying the right altogether — it tends to disable him to borrow, and restrains his right of raising the money by sale; in short, in almost all cases, it renders the right of redemption worth nothing.

Was this a mortgage? On this it seems to be impossible to doubt —it was a loan of money — it might be repaid in a day certain— but says the agreement, if not paid then, the mortgagee may pay or must pay four hundred dollars, and other four hundred dollars, and become purchaser. The mortgagee himself knows it to be only a mortgage, and treats it as such by purchasing the equity of redemption. If that had been done before the mortgagor had sold to Gray — if the eight hundred dollars agreed upon at the time of the loan, and the eight hundred dollars agreed to be given for the equity of redemption had been paid, and a long time had been suffered to elapse, I do not say what a court would have decided —that case is not before us.

If this be considered a conditional sale, in what respect would the situation of Johnston be better? the condition was performed to the letter, and in its spirit; the four hundred dollars lent was rendered before the 1st of April, 1815, and on that day. I do not rely solely on the phrase that M‘Kellip should pay or cause to be paid, though if necessary, they might be relied on. There did exist in M'Kellip a right of redemption — that was not taken away merely by striking out the word assigns; and an express covenant not to raise the money by sale, extorted by a lender from a borrower, would not have availed.

Other objections are made, that Gray did not state whether he made the tender in 1S14, and that on the 1st of April, 1815, as the agent of M‘Kellip, or in his own right as purchaser. It would be strange that a tender made by a man who had good right to make it, should be considered bad because he was not asked, and did not state in what capacity he acted — as a purchaser whose title was on record,, he had a right to tender and redeem — and as he did not pretend to act in any other capacity, the tender is good. It was alleged as error, that the judge told the jury, that on the face of the writings it was a mortgage; and that the parol evidence, if believed by them, also made it a mortgage — and this is called taking the facts from the jury. I should not have noticed this, if the same objection had not been made in several other cases at this term. There was no contradictory statement in the testimony; and the court was bound to give an opinion on the effect of it. The objection seems to be, that the judge ought to have repeated every sentence of it, and concluded each sentence, If you believe this sentence, it is a mortgage.” If he had done so, it would have been novel, and, like most novelties, wrong! There may be cases where several acts are necessary to entitle a party, and where his right does not arise until he'has performed each of those acts; and in such case, a judge must so direct a jury. There are other cases where the state of a single fact is to be collected from testimony— if that testimony is variant, the jury will be told the law, as it would be if the facts, found in one way, and as it would be if the facts are found to be otherwise. When the evidence is all consistent, and express as to the facts, the only direction can be what was given here.

From the entry of the amicable action, it would seem the intention was to ascertain who had a right to the money in the sheriff’s hands — but the issue is confined to the point, whether Johnston had right to the whole of it. He claimed to be purchaser, and as such, claimed the whole. His' right to the four hundred dollars originally advanced by him, and interest up to the 1st of Jlpril, 1815, is not only admitted, but it has been actually paid him, and received without prejudice to-this suit. We have been asked to give an opinion, as to who is entitled to this money — this to prevent further litigation — on the facts before us, and if no other facts exist, Johnston is entitled to the four hundred dollars advanced in 1813, and interest.

And on the facts in evidence, and if no contradictory facts exist, he is not entitled to receive out of the money in the sheriff’s hands the four hundred dollars he paid M‘Kellip on the 20th February, 1815. He had legal notice on the 2d of March, 1S14, that M'Kellip had sold to Gray — and actual notice in the autumn of 1814, by the tender made by Gray. His payment to M'Kellip after-wards, if not, under all the circumstances, fraud, was at least folly. He could'not interfere with or embarrass the contract between M'Kettip and Gray, or acquire any further lien on the land by giving M'Kellip money, which he knew M‘Kellip had no right to receive.

As to the residue of the money in the sheriff’s hands, we have no facts on which to give an opinion, and we give none. M'Kellip is not before us — how he and Gray stand, or what at this time are the respective rights of M'Kellip and Gray, we know not.

The charge of the judge being correct on all the facts of the case, and the verdict conformable to the law and evidence, the motion for a new trial is overruled, and judgment affirmed.

Judgment affirmed.  