
    Samuel B. Barrell, vs. James Glover, et. al.
    
    December, 1844.
    An action of debt cannot be maintained upon a deed of mortgage, reciting that the grantee was indebted to the grantor in a sum certain, and that the deed was executed for the better securing the payment thereof, with a proviso, after the habendum of the instrument, that upon payment of the money the deed should be void, there being no covenant in the deed to pay the debt.
    Appeal from Allegany County Court.
    This was an action of debt, instituted on the 6th February 1841, by the appellees against the appellant.
    
      The plaintiff filed in the cause the following indenture.
    This indenture, made this 22nd August 1836, between Samuel B. Barrell of, &c., of the one part, and James Glover, James Pearcy, and Lewis McMillan, of the other part. Whereas, the said Samuel B. Barrell stands indebted to the said James Glover, James Pearcy, and Lewis McMillan, in the sum of $5000, current money, to be paid to them by the said Samuel B. Barrell, on or before the 22nd day of August 1837, with legal interest thereon until paid, and for the better securing the payment thereof, with interest as aforesaid; the said S. B. B. hath agreed to execute, and doth execute these presents. Now this indenture witnesseth, that the said S. B. B., in consideration of the said debts or sum owing to the said J. G., J. P., and L. McM., as aforesaid, and for the better securing the payment thereof, with interest to the said J. G., J. P., and L. McM., their, &c.; and also in consideration of the further sum of, &c., to him, the said S. B. B., in hand, well and truly paid, by the said J. G., J. P., and L. McM., at or before sealing and delivery of these presents, the receipt whereof, &e., hath granted, bargained and sold, released and confirmed, and by these presents doth grant, bargain and sell, release and confirm unto the said J. G., J. P. and L. McM., their heirs and assigns, all that tract or parcel of land called “Water Works,” lying in Allegany county, aforesaid. To have and to hold the said tract of land called “ Water Works,” unto the said J. G., J. P. and L. McM., their heirs and assigns forever. Provided always, and it is the true intent and meaning of these presents, and of the said parties thereto, that if the said S. B. B., his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid, to the said J. G., J. P., and L. McM.., their, &c., the said full sum of $5000, with legal interest for the same, on or before the 22nd August 1837, without any deduction or abatement whatsoever, then and from thenceforth, these presents, See.
    
    The plaintiffs declared, that whereas the said defendant heretofore, &c., by a certain indenture, then and there made, between the said plaintiffs of the one part, and the said defendant of the other part, which said indenture, sealed with the seal of the said defendant, the said plaintiffs now bring here into court the date whereof is the day and year aforesaid, acknowledged himself to be indebted to the said plaintiffs, in the sum of $5000, current money, to be paid to the said plaintiffs, by him, the said defendant, on or before the 22nd day of August, in the year 1837, with legal interest thereon, until paid. Nevertheless, &c.
    After oyer of the deed, the defendant demurred generally to the declaration, in which the plaintiffs joined.
    The county court rendered judgment in favor of the plaintiff, for the debt claimed in the declaration, and the defendant appealed to this court.
    The cause was submitted without argument to Archer, Dorsey, Chambers, Spence and Stone, J.
    By F. A. Schley for the appellant, and
    By Alexander for the appellees, who cited Penn 8f Bigges, ex. of Bigges vs. Carroll, et al. Mss. Beer. 1836.
   By the Court.

JUDGMENT REVERSED, WITH COSTS AND JUDGMENT FOR THE APPELLANT.  