
    William Marshall vs. Charles Stewart and others.
    Where land is conveyed by an absolute deed, and the vendee at the same time delivers to the vendor a contract by which he agrees to re-convey the premises by a specified time, upon tho rc-payment of the purchase money with interest, the circumstances furnish presumptive evidence that the deed, although absolute upon its face, was intended as a mortgage, and it will be so held in equity.
    This is a Bill in Chancery reserved in Butler County.
    The complainant in his bill alleges that he is a judgment creditor of one Peter Letweller. That his judgment was rendered at the March Term of the Court of Common Pleas of Butler county, 1843, for the sum of fourteen hundred and thirty-six dollars, and costs. That the said Letweller has no property from which said judgment can be satisfied. He further alleges that the said Letweller has the equity of redemption in certain premises which are described, which were conveyed by said Letweller and one Christopher Morseman to the defendant, Charles Stewart, on the 7th of August, 1841. That the deed, although absolute upon its face, was intended merely as security for money at the time advanced by Stewart, and that Stewart at the same time gave to Letweller and Morseman, a lease of said land for five years, upon certain rent therein stipulated, and with a condition that if, at the expiration of the said term, a certain sum of money named in the lease, was paid to the said Stewart, then that the said Stewart would re-convey said land to Letweller and Morseman. Complainant alleges that the sum so to be paid, was made up of the original sum advanced by Stewart, together with interest, at a rate far beyond six per cent. It is further alleged, that subsequently Stewart fraudulently procured the said Letweller and Morse-man to release to him the aforesaid lease. The complainant insists that the release so executed is void for the fraud, and that the said Letweller and Morseman have an equity of redemption in the land, which he seeks to have applied to the of his judgment. The prayer of the bill is that the lands be sold, and that from the avails, what is justly due to Stewart may be paid, and that the balance, if any, may be applied upon the complainants’ judgment.
    Stewart, in his answer, admits the conveyance of the land by Letweller and Morseman to him, but denies that this was as collateral security for the payment of money advanced by way of loan. On the contrary, he avers that he refused to make any loan, but ofFered to purchase, and did purchase the land at a stipulated price, the amount he does not now recollect. That the sale to him was absolute, not conditional. He admits the execution of the lease by him to Letweller and Morseman, as stated in the bill, but alleges that subsequently, in February, 1842, the said Letweller and Morseman, being anxious to surrender to him the leased premises, by an instrument of writing indorsed on said lease, released to him all their interest therein. He denies that this release was fraudulently obtained. He charges that the judgment of the complainant is fraudulent, and that it was rendered without consideration for the express purpose of defrauding him.
    
      John Woods, for Complainant.
    
      Campbell &f Milliken, for Defendants.
   Hitchcock, J.

The decision of this case depends entirely upon matters of fact, and I am not aware that there is any particular principle of law involved. The evidence shows that a deed was executed as charged in the bill; and, although absolute on its face, we are satisfied, notwithstanding the denial of Stewart, that the true object was that it should operate as security for money loaned. It must in equity be held to be a mortgage.

To secure to the mortgagors the right of redemption, Stewart, at the time of the date of the deed, executed to them a bond for five years, containing a condition that upon the payment of a certain sum, at the end of said term, to said Stewart, he would re-convey to them the premises. The nature of this instrument cannot be mistaken. It secured to the mortgagors the right to redeem. But in order to entitle themselves to this privilege, they must, before they could claim the interposition of this Court, have offered to refund the amount loaned, with interest. The complainant stands in no better situation in this respect, than would the original mortgagors. He, too, should have made the same offer. If his object was merely to procure the sale of the equity of. redemption, in pursuance of the 16th section of the Chancery act, this might not be necessary. But the object here, is to compel the sale of the mortgaged premises; and the mortgagee should not be thus compelled to have his security disposed of, until his money is first, offered to him.

But there is another difficulty in the case. Letweller and Morseman, on the 23d of February, 1842, under their hands and seals, assigned and surrendered to Stewart, all their interest in, and under said lease, or contract, which secured to them the right of redemption. This must operate as a relinquishment of their equity of redemption. It is claimed, however, on the part of the complainant, that this instrument was fraudu/en tly procured ; but no testimony is introduced to prove the fraud. We have the testimony of a witness who was present at the exécution of the instrument, and who reduced it to writing, and he testifies that the transaction was fair and bona fide. This puts an end to the case, and the bill is dismissed, at complainant’s costs.  