
    CONWAY’S EXECUTORS AND DEVISEES v. ALEXANDER.
    
      Present...Jill the Judges.
    
    rf A a*a"ce thereupon convey'intrust to convey the should fait to * *e.mQ’ "stona cer-1 tamday — and pay’the mo™" ney on the the trustees0* convey the ja”hasnoeqñ¡ly cfredempt,on'
    
      THIS was an appeal from the Circuit Court for the district of Columbia, sitting in chancery, at Alexandria.
    
      Walter S. Alexander, the Appellee, son and residuary ¡devisee of Robert Alexander,' deceased, filed his bill fn equity against the executors and devise- 3 of Richard Conway, deceased, ts be permitted to redeem a. certain tract of land which his. father, Robert Alexander, had, in the year 17&S, conveyed to certain trustees, by deed which the Complainant contended was a mortgage; which land the trustees had conveyed to W. Lyles, who had conveyed the same to the said Richard Conway. The deed was by indenture, dated March 20, 1788, between Robert Alexander, of the first part, W. Lyles of the second part, .and certain trusteed of the third part, whereby Robert Alexander, (after reciting his title to an undivided moiety of 400 acres of land, holden in common with Charles Alexander,) in consideration óf 8001. paid to him by W. Lyles, and in consideration of the covenants to be performed by the trustees, bargained, granted and sold, aliened and confirmed to W. Lyles, in fee, twenty acres, being part of the said undivided moiety — and to the trustees the.residue of the moiety, except part thereof conveyed to B. Dade on the 1st of January, 1788 ; which residue was supposed to contain 140 acres. To Have and to Hoed the 20 acres to W. Lyles, his heirs and assigns, to his and their use forever — and the said residue of the said moiety- to the trustees and the majority of them, and the survivors and survivor of them, in trust as follows, to wit: “ To convey the said residue of the said moiety, “ except as before excepted, unto him the said W. Lyles, “ his heirs and assigns forever, by good and sufficient “ deeds in law for that-purpose, at any reasonable time < after the first day of July, which shall be in the year one i( thousand, seven hundred and ninety, unless the said « Robert Alexander, his heirs, executors or administrators, shall pay, of cause to be paid to the said W. Lyles, “ his heirs, executors or administrators, the sum af 700/. « current money of Virginia, in gold or silver coin, with “ lawful interest thereupon, from the date hereof, bn or “ before the first day of July, which shall be in the year “ of our Lord seventeen hundred and ninety. And if the « said Robert Alexander, his heirs, executors, or ad “ ministrators, shall pay, or cause to be paid to the said W. Lyles, his heirs, executors or adniinistra- « tors, the said sum of 700/. current money of Virgiu nia, in gold or silver coin, with lawful interest there- “ upon, at any time on or before the said first day of “July, which shall be in the year 1790, in trust, im- “ mediately «pon the payment being made, to reconvey “ to him the said Robert Alexander and his heirs for- “ ever, by good and sufficient deeds in law, all the title “ which b'y virtue of these presents passet!) to them the “ said” (trustees) “ or any of them, óf, in and to the “ said residue of the said moiety, except as before ex- “ cepted, herein before granted and confirmed unto “ them.” Robert Alexander then covenants that he has good title in fee simple to the land conveyed ; and that the 20 acres shall be laid off in a certain situation contiguous to other land of Lyles, and by certain metes and bounds therein described. The trustees then covenant, that they will well and truly execute the trusts reposed in them, by reconvcying the land, to Robert Alexander, if Le should pay the money and interest on or before the 1st of July, 179,0. — or by conveying it to Lyles, if Robert Alexander should not pay. it by that day. Robert Alexander then covenants with Lyles, that he will make further assurance, &c. both as to the 30 acres, and as to the residue of the moiety, if the trustees should convey it to him. He then covenants to warrant the 20 acres to Lyles against the claims and demands of all persons whomsoever. This deed did not contain any covenant on the part of Alexander to pay the 700j.
    On the 19th of July, 1790., file trustees, by deed of ' that date, reciting the deed of the 20th of March, 1788, and-that Lyles had represented that R. -Alexander had not paid the money, and had required them to execute' the trust, conveyed the residue of the undivided moiety in fee to Lyles, in consideration of the covenants, agreements, and trusts in the former deed contained on their part'to be performed, and in consideration of 7001. mentioned in the said former deed to have been paid by Lyles to. Alexander.
    On the 23d of August,' 1790, Lyles by deed of that date, (after reciting the title of Robert Alexander to the undivided moiety of*, the 400 acres of land, and his deed of the '20th of March, 1788, to Lyles and the trustees, and that Alexander failed to pay the 7001. on the 1st' of July, 1790'j and that the trustees, by their deed of (he 49th of July, 1790, had conveyed the land in question to Lyles) in consideration of 900Z. paid him by Richard Conway, conveyed the 20 acres,, and the residue of the undivided moiety ot (he 400 acres, and all his right, title, interest, use, trust, property, claim, and demand, in and to the same, by force of the said indenture, and all deeds, evidences and ■ writings in any manner or way touching the same, and the right and privilege of ]>roseen ting in the name of Lyles, (if at any time judged necessary by Conway, his heirs or assigns,) any actions at law for lhe breach of any (f the covenants in the said indenture contained: To have and to hold all and singular the premises' thereby granted, with the appurtenances, and all the estate, right, title, use, trust, interest, property, claim and demand of him the said TF. Lyles thereto, by force and virtue of the aforesaid indentures to Conway, his heirs and assigns, to his and their use forever; with a special warranty against the claims of Lyles and his heirs and assigns only.
    On the 17th of January, 1793, Robert Alexander made his will, and after devising specifically a number of tracts of land and moieties of tracts by name , and description, to his son Robert, devised all the rest and residue of his estate, real and personal, to hip son Walter, the Complainant. Robert Alexander, the testator, died in February, 1793. The laud in question was not specifically devised by his will, and Waltei*, the Complainant, obtained title under the will to several other tracts not specifically devised.
    The Complainant became of full age in November, 1803, and brought this suit in 1807.
    The deposition of W.- Lyles was taken on the part of the Defendants. He testified, that Robert Alexander was not indebted to him at the time of the contract for the land. No. part of the money was advanced by him as a loan to be secured by mortgage. He W'as no lend er of móney, and would not have lent Alexander the money on mortgage. Alexander was generally reputed not punctual in paying his debts, and rather too fond of law, and at the time of the contract for the land was confined in jail for a large debt, and sent several times to Lyles, and urged'him buy the land. Lyles then resided on land adjoining the 20 acnés; and his house was very near the line. He wanted the addition of about 20 acres, and was not anxious to have any more» Alexander was more willing to sell his whole residue of the moiety of 400 acres, than to sell a part, his object to raisp a considerable sum to pay the debt for which he was in prison. It was agreed that the 20 acres should be sold absolutely, and the residue should be sold conditionally, as otherwise Lyles would not advance the money. The 20 acres were purchased absolutely, to suit the convenience of Lyles, and the residue was purchased 'conditionally, to suit Alexander.,. Lyles was determined to advance no money on any bargain which should make' it necessary to go into court to get it back. The condition.was understood by both to be, that if he paid the money, by the time limited, the trustees were to. reconvey the land to Alexander, but otherwise they were to convey it to lyles in fee simple, and he was to have the land thereafter absolutely to his own use forever. He sold it as soon as he could after he left Alexandria, So get back his money. ■ He received from Conway 900/, abtlie date of the conveyance, or a few days after. Alexander never made any claim upon Lyles for any part of the land, and never expressed to him any dissatisfaction .with the sale, although he.saw him frequently afterwards. Alexander was not in confinement when the trustees made their deed to Lyles. No part of the land was cultivated, and no formal possession delivered.
    The deposition of Cli. Lee, Esq. who drew the deeds of the 20th of March, 1788, and the 19th of July, 1790, stated that Lyles consulted Him about the bargain with Alexander, and represented that Alexander wanted a considerable sum of money to pay a debt which was pressing, and offered to sell some land, but would not sell the whole of it absolutely, but was willing to sell part of it absolutely, and the residue was to be conveyed to trustees, in trust, to convey the fee to Lyles, if a certain sum of money was not paid by a certain day ,* and if it was, tlié trustees were to reconvey to Alexander, The deponent was asked if such a contract was lawful, or would he deemed in law only a mortgage; and gave it as his opinion, that the parties might make such a contract, and that it could not be considered a mortgage. Lyles intimated that if that was'not very clear, he would not have any thing to do in the business. That he would not, on pny terms, make a bargain with Alexander, if he should be obliged to go into a Court of Equity about it, whicli might be the case if there should be a mortgage j that Alexander was well known to be troublesome and fond of law. The deponent was quested to draw such instruments as would place the contract in the state of a conditional purchase of apart of the land, and with this view he drew the writing. He is certain that Lyles consulted him as to the nature and effect of the contract, and did not intend to have a deed in the nature of a mortgage, but of absolute sale of a part, and of a conditional sale of the other part of the land, and such \yas the deponent’s intention when he drew the deed. That he afterwards drew a deed of conveyance from the trustees to Lyles, to carry into effect their trust, and delivered it to Lyles to carry to the trustees. Lyles informed him that one of the trustees refused to execute the deed, unless Alexander would sjgnify his consent, and asked whether a verbal consent would not'do. The deponent sketched a note in writing for Alexander to sign, signifying his consent, and was afterwards informed that the trustees were satisfied, and did execute the deed, but he does not know whether Alexander gave his consent. Lyles was nof easy in his' pecuniary affairs, and lie never knew him lend a large sum upon mortgage. Alexander was a bad manager of his estate, was generally needy of money, and not punctual in "i-urient of his debts, though his landed estate was - Jy of great value.
    Thé answer of the executors does not admit the deed to be a mortgage, and states that Conway began to make expensive and permanent improvements on the land in the summer of 1791; that Alexander had an opportunity of seeing part of them, and probably did see them, and made no objection as they believe.
    It appeared in evidence that the land had lately been sold for more than 20,000 dollars; but that it was very poor, much broken by gullies and exhausted, when Conway began his improvements. There was also evidence tending to show, that it was then worth more than he gave for it.
    The Court below being of opinion, that the deed was to be considered as a mortgage, directed an account to be taken of the value of the permanent improvements, and the original, sum advanced by Lyles and interest, and of the rents and profits, which being done, it ap^ peared that the Complainant would have to pay the sum 4,943 dollars to redeem tlic land; and the Court accordingly decreed a release upon the payment of that sum.
    From this decree the Defendants appealed to tins Court.
    C. Lee for the Appellants.
    
    The only question is, whether this is a case of mortgage.. The bill does not state fraud or oppression. . i; Jls to the deed itself,' the question is whether it be a defeasable purchase, or a redeemable-mortgage.
    It sets forth the-consideration of 800Z. as one entire sum. There was no prior debt due to Lyles. That allegation of the bill is. disproved ; and unless there was an old debt, or an actual loan, there could be no mortgage. It may as well be a mortgage of the 20 acres, as of the residue. If both contracts were not actual purchases, the parties would have required different instruments. All. instruments are to have-a reasonable construction according to the intent of the parties. One. distinguishing mark of amorrgage is a covenant for the. repayment of the money. But this deed contains lio such covenant It was purposely omitted, that it might not he a mortgage. The whole question is as to the intention of the parties, Lyles had no personal remedy. If the land should fall in value, it was his loss. If there had-been a-valuable .house upon the land, which had been .destroyed by fire, it would have been the loss of Lyles. It was not reasonable that Alexander should have thechancc of gain, but not of loss. It was in his power to compel Lyles to take the land, by neglecting to pay the money on the day.' Another circumstance showing the intention of the parties is, that Alexander covenanted to make further assurance, if required, whenever the trustees should have conveyed the land to Lyles,
    
      It-was not intended as a security for money to Lyles, but a mere right in Alexander to repurchase until a certain day. A Court of Equity cannot change the agreements of parties.
    In the case of Tasburgh v. Echlin, \ Br. Tari. Ca. 142. cited ih Powell on Mortgages, 174.' there had been, a bill to foreclose, which clearly showed the intention of the purchaser to consider it as a mortgage. But the House of Lords decided it to be an irredeemable purchase, and not a mortgage. That was an assignment, by lease and release, of a reversion expectant on alease for years, of which 43 were yet to coiné, in consideration of 290Í. paid by sir John Eustace to Charles Tasburgh, in trust for John Tasburgh, dated in ,1681. In the indenture of release, there was a proviso, that if sir John Eustace should pay Charles Tasburgh, at the end-of 5 years, 200Z. with interest, it should be lawful to him to re-enter and enjoy in his, former right; but if he should fail to pay within the time limited, the estate of Charles should be absolute as well in equity as in law, and that sir John and his heirs should be forever debarred from all right and relief in equity, against the tenof of the said release; and Sir John did thereby, for himself and his heirs, release to 'Charles Tasburgh, his heirs and assigns forever, all his right in equity to redeem the premises, in case of failure of payment as aforesaid; and there was no covenant in the deed for the repayment of the money, or the interest by the grantor, as is usual in mortgages.
    After the 5 years, John Tasburgh exhibited a bill, in 1687, against sir John Eustace, praying payment at a certain day, or that the conditional estate of Charles, (in case it should be adjudged a defeasable or redeemable estate) should be made absolute, and that sir John might be foreclosed of all equity of redemption. This bill was taken for confessed, arid a decree in December, 1688, that he should be foreclosed, unless payment, were made of principal, interest and costs, before December, 1689.
    Sir John acquiesced under xtris decreé for 18 years, when he died. John Tasburgh died in 1691, and Henry Tasburgh succeeded to his estate, and in 1722 demised the premises to M‘JV°amara. In 1723, the heirs of sit' John Eustace exhibited a bill, alleging that the decree for foreclosure had been obtained by surprise, fraud and imposition, and praying it might be i*eviewed and reversed, which was done by the Court of Chan-eery > in Ireland, who decreed that Henry Tasburgh sholild release to the heirs of sir John, upon payment of the. principal, interest and costs. From this decree Henry Ttisbnrgh appealed to the House of Lords, who reversed it and dismissed the bill.
    The principal upon which this case was decided by til© House of Lords, is supposed by Powell to be, that the contract was to be considered as a conditional purchase, and not a mortgage.
    And-in the case of Barrell v. Sabine, 1 Vern. 268, the Lord. Keeper said, 44 he thought, that where thére was .44 A clause or provision to repurchase, the time limited A ought to be precisely observed.”
    In tli© case of Chapman v. Turner, 1 Call. 192. Judge Pendleton in delivering his. .opinion, said, 44 As on the 44 one hand the Chancellor will not permit a i*eal mort44gage ñ.be made irredeemable by the act of the scri*4 vener, so neither on the other will he suffer real conditional or defeasible’ sales to be'changed into mort•4 gages by the like acts. The real intention of the A parties governs him.' In a defeasible purchase, the 44 condition must be strictly performed at the day, or no 44 relief will be granted; because it does not- admit of 44 compensation for the risk. If the thing perish the 44 next day, it must bo the loss of tjié purchaser, he A having no covenant, or even implied promise, to re-44 turn the money in that event} and we are taught by 44 a maxim in equity, that |n these casual' cases, .even-44 tual loss or gain must accrue to, or fall on him who “runs the risk.”
    In the present case, both parties confided in the trustees. Their deed, after the failure of Alexander to pay the ready money, was as valid as if he himself had then released all equity of redemption, or had made an *hn absolute deed to Lyles;
    2» Js to the evidence in the case, it appears that the irustees refused to execute the deed until'they' had the consent of Alexander. A writing was drawn for him to. sign, signifying his assent. The trustees executed the deed. The probability is, that -they had his assent in writing. He knew that the deed had been executed, and he acquiesced; He saw the expensive provements made by Conway, and lie was silent. Conway continued making substantial and permanent imr provements for 17 years, without keeping any account either of the cost of his improvements, the expenses of cultivation, or the value of the crops. It has now become impossible to accomit. Justice cannot now be done. ,In % Eq. ca. ab. 599, it-is said, that “Equity “ will not enlarge the lime for the mortgagor to redeem ‘f after six years acquiescence under a forfeiture by his “ own consent, especially if there be any improvement on “ the estate.” And again, “ There shall he no redernp- “ tion after long possessitín, settlements made, and estate “ improved.”
    In the case of' Hollingsworth v. Frye, Judge Paterson, in delivering his opinion,- said, that the time of payment was material, a cardinal point; and the party ought.not to,be suffered to lay by and take the chance of the rise of value.
    Lyles’s giving a special warranty only, is no evidence .that he considered it as a mortgage, The boundary was. unsettled, and then in a course of litigation, which Was. a sufficient reason for his not giving a general warranty. And that Alexander did not consider it as á mortgage is evident from, the circumstance, that he did not mention this land in his will, although he specified almost every tract of land in which he had any interest, especially that part of this very tract winch he had previously contracted to sell t,o Baldwin Dade.
    This deed, therefore, was neither a mortgage per se, nor was it the intention or understanding of either of the parties that it should be so considered; but conveyed'a good, absolute, and indefeasible estate, both at law and in equity to \V. Lyles, and his heirs and assigns,
    Taylor, contra.
    
    Admitted the distinction between an agreement to re. purchase, and a mortgage. But in this case, if it be not a mortgage, it was a most unconscionable bargain; The evidence shows that at the time of the bargain, other land loss advantageously situated, and not better in quality, was worth three or four times the price which paid for this.
    As to the question of mortgage. Every contract for “ the réceiving of money, by the conveyance of a real ■« estate to the lendor, not made in contemplation of an eventual arrangement of property, is, in equity, deemed a mortgage.” Mellor v. Lees, 2 Atk. 495. And' all provisoes and stipulations between the parties, tending to alter, in any subsequent event, the original nature of the ’ mortgaged interest, or prevent, the redemption of the estáte pledged, upon payment of the money borrowed, with • interest, are void. For were any such agreements suffered to prevail, they would put it in the power'of every mortgagee to take advantage of the'necessities of the mortgagor, by inserting restrictive clauses to prevent a redemption of the estate pledged, unless upon terms injurious to the latter. In equity, therefore, the right of redemption'is considered as inseparably incident to every contract founded on a mortgage, and can no more be restrained than ,thc power of tenant in fee simple to alien generally, or of tenant in tail, to suffer a recovery; it being a maxim in equity, that the same estate or interest cannot be a mortgage at one time, and at. another time cease to be so.” FoWell on Mortgages, 146. Nor will an agreement to make the conveyance absolute upon payment of a further sum, if the money lent be not paid at the day appointed, alter the casé; such stipulations being deemed unconscionable; because a man ought not to have interest for his money, and a collateral advantage besides,• nor may he clog the redemption by any bye agreement. 1 Vern. 488. Willet v. Winnel Powell, 152.
    Powell, in c oncluding his observations upon the case Tasburgh v. Echlin, p. 183. — says “But in all these cases where the. equity of redemption is rebutted by agreements of this kind, and the transaction is considered^ as a conditional purchase, the intention of the parties at the time of contracting must, I apprehend, he dearly proved or necessarily implied from the circumstances attending it; otherwise the general rule will not be departed from.”
    It is not necessary, to constitute a mortgage, that it ,should contain á covenant fpr the re-payment of the money. 3. Atk. 280, Lawley v. Hooper; where tiie lord. Chancellor says that all Welch mortgages are without this covenant, and so are most copyhold mortgages. ' So in cáse .of King v. King, 3. P. Will. 358, it was decided that every mortgage, although there be no covenant nor bond to pay the money, implies a loan, and every loan a debt; as in the case pf the mortgage of a ship, which was taken at sea, although there was no covenant to pay the money, yet the executors of the mortgagor were decreed to pay the money for which the ship was mortgaged. And the lord chancellor sai$ -it was so in the case of Welch mortgages, where no day certain is appointed for the payment, but the matter left at large. The case of Howell v. Price. 1. P. Will. 291, was upon a Welsh mortgage, viz: conveyance in fee of an estate in Wales, worth 521. per annum, under a proviso to be void if the mortgagor, his heirs or assigns should pay to the mortgagee or his heirs, 3001. on any Michaelmas day, giving six months notice, and the mortgagee to have the rent which should then be in arrear; hut there was no bond or covenant to pay the money.— Yét it was decreed that it was a debt which the executors should pay. The case of Ross v. Norwell, 1. Wash. 14, shows that a covenant to pay is not essential.
    A deed of trust is a modern invention by which the equity of redemption is supposed to be foreclosed, without the aid of a Court of Chancery. But the present, differs from the modern deed of trust. In that there is a public sale, and the surplus is paid to the mortgagor, which, if the sale is fairly and judiciously made, may be considered as the fair value of his equity of redemption. Yet the efficacy of such a sale as that to pass an irredeemable estate is doubted. Powell, 19.—But here, thp trustees were, the nitre instruments to convey. They had no powers to do any thing but convey, upon the pajme.nt or non-payment of (he money. Here was no pvovision^made, to ascertain the value of the equity of redemption, orto mitigate the severity of the contract The intervention of the trustees did not alter the case or make, it more, or less a mortgage than it would have been without them.
    __ It is in effect the same as if the deed had been directly from Alexander to Lyles, with a proviso that it should be void if Alexander should pay the money on the day appointed. Such a deed would unquestionably have been considered as a mortgage. It has been shewn above,:-that a covenant to pay was not necessary; and a covenant for further assurance is usual ip mortgages, and is therefore no evidence that tips conveyance is not to ' be considered a mortgagee. If then it is to, be considered as a mortgage upon the face of the instrument; is the extrinsic evidence so dear as to rebut the equity of redemption ?
    Why was there a distinction made between the conveyance of the 20 acres and that of the 140 ? Why were the 20 conveyed to Lyles, and the 140 to the trustees ? The answer apparent upon the face of the transaction, and expressly avowed by Lyles himself in his deposition, is, that Lyles did not want to purchase, and Alexander did not want to sell, more than 20 acres. Lyles says that tiie 20 acres were conveyed absolutely to suit his convenience, and the residue was conveyed to the trustees to suit Mexander. AS to the 140 acres then, Lyles .did,hot wish to purchase them, nor Alexander to sell them, - If a sale- and disposition of the land were not the.object of the transaction, it could be nothing but a loan of money by Lyles, and a security upon the land hv Alexander; This was evidently the substance of the negociation. And wherever there is a loan of money upon the security of land, however,'the transaction may be disguised by the writings, it is substantially a mortgage. Lyles indeed admits his object to have been a loan of money, but says his intention was to have the means of getting hack his'money without going into a Court of Chancery; that is, he wished to loan his money upon a real security without allowing his debtor the right of redemption. It was.an attempt to do that which Courts of equity have uniformly discountenanced ; to devise a mode to defeat the equity of redemption where the transaction was really a loan of money upon a mortgage.
    
      fjt is said Lyles had no .personal remedy against Alexander, because there was no covenant to repay the ntoney. But the authorities already cited show that wherever the transaction is really a loan, and the security is inadequate, there is a personal remedy'.
    That Lyles considered the land as a security only, is eyideht from the circumstance that he received from Conway only his principal and interest, and assigned to Conway.his right and title only, together with the'title-papers, and expressly assigned all his right of action against Alexander.
    There is no evidence of acquiescence on the part of Robert Alexander, in the idea that this was an abso, lute sale. He died in January, 1793, Mr. Lyles him-1 self states that he does not know whether Alexander knew of the deed of the..19th July, 1790. Conways agreement with Charles Alexander respecting a division of part of the land which they held in common, was in April, 1791. No improvements could have been made before that date. One of the witnesses states that he began to ditch the land in March, 4791. It is probable he meant March, 4792. if so, there were only ten months in which Alexander could have seen any improvement on the land; and What he did see was not inconsistent with the nature of the estate of a mortgagee in fee in possession. The buildings, &c. were not erected until after Alexander’s death. The digging of a ditch and erecting of a post and rail fence xipun a part of the land was not decisive evidence that Conway claimed an irredeemable estate.j and there is no evidence that even that small improvement was seen by Alexander.It is only stated by the witnesses that he might have seen it at a distance as he passed along the road from his house to Alexandria. The Complainant did not become of full age. until November, 1803, and brought suit in 1807. His guardian did not know the nature of Conviays title. The length of time is no bar to the Complainant because he has been under a legal disability. Powell, 407, 8, 11, 12.
    It is said that Robert Alexander did not specify this land in his will, although lie mentioned that part of the tract which was in the possession of Baldwin Dade — * and from this circumstance an inference is drawn, that He considered it as an absolute sale, arid not a mortgage. But the reason why he mentioned that part of the; land witich was in possession of B. Bade was, that he devised R to his son Robert — arid it will be perceived by his will, that he specified every thing by name which he devised to Robert, but nothing which he devised to Walter, the Complainajfre — for after making specific devises to Robert, He-says, -“.Igive to my son Walter, and. his heirs, ¿‘forever, dll. the rest and residue of my estate both real and “ personal.” So that if his not specifying this land be evidence that he thought he had no interest in it, his not specifying the half of his .estate which he intended for his Son Walter, is evidence that he thought he had no interest therein. No isuch inference can be drawn from his silence as to this land, which would not apply to one half of his estate.
    There is no evidence of Alexander’s understanding of this transaction. His circumstances were embarrassed up to the very time óf his death, so that he never had it in his. power to make an offer to redeem. It is evident from .the deed itself that he expected to be able to redeem in about two years, from the date of that instrument ; and the insertion of such a clause was evidently intended for his benefit, and shows that he did not wish to sell. He was in prison for debt. His. object was to get money to relieve him from confinement; ,and the stipulation for a time of payment, is evidence that he meant to borrow.
    
    There is no evidence that this was not a negotiation for a loan of money„ Mr. Lyles, in his deposition, does not say that the money wa3 no't advanced by him as a, loan ¡ but says it was “ not advanced as a loan to be secured by mortgage and that he would pot have loaned him money “ on any mortgage by him.” That he “ was “ determined to advance no money on any bargain “ which should make it necessary to go into court to get it “ back.” That he sold the land as soon as he could after he left Virginia, “ for the purpose of getting back his “money.” All this shows that he had no objection to lend tiie money* but he wished to get real security without an equity of redemption. And it appears he employed counsel to devise a plan for that purpose; a purpose which is never countenanced in a Court of Equity.
    The case of Chapman v. Turner, which has been cited, was a contract respecting personal property, and depended upon its own peculiar circumstances, none which resemble the present.
    The case of Tarsburgh v. Echlin, was a sale or mortgage of a reversion. There had been a decree of foreclosure, and a long acquiescence under it. It does not appear upon what grounds the House of Lords refused to review that decreewliether.it was because it bad been so long acquiesced under, or whether upon the construction of the original conveyance. But the decision of the Court of Chancery in Ireland was clearly upon the ground of its being a mortgage.
    In the case of Robertson v. Campbell & Wheeler, 2 Call. 428, Judge Pendleton, in delivering the opinion of the Court of Appeals of Virginia, says, “ It must often “ happen, in disquisitions- of this sort, that there will “ be a difficulty in drawing the line between these two “sorts of conveyances,” (mortgage and conditional sale.) « The great ilesideratum, which this Court has “ made the ground of their decision is, whether the pur- “ posA of the parties was to treat of a purchase, the va- “ lue of the commodity contemplated, and the price “ fixed ? Or, whether the object was the loan of money “and a security, or pledge, for the-repayment, intend- “ ed ?”
    The cases cited from 2 Eq. ca. ab. only show, that a Court of Chancery will not decree a redemption after a. forfeiture by consent of the mortgagor, and improvements by the mortgagee, and acquiescence by the mortgagor.
    Upon the whole, then, this case appears to haye been originally a loan of money upon real security, with an attempt to defeat the equity of redemption ; and not a real bargain, with a view to the purchase of the land. Tne want of a covenant to repay the money, does not alter the nature of the original transaction, and (he same evidence which appears in this case would have supported a personal action bj Ljdes against Alexander upon the loan of the money, in case the title of the land had failed, oi* it had by any' other means become ¿n inadequate security..
    Jones, in reply.
    
    It must be. admitted, that it was competent for the parties to make a conditional salé, and the only question is, whether they have done so. The depositions of Mf* Lyles and Mr. Lee Show,' that it wás their - intention to make á condüional purchase, and nota mortgage. If the instrument does not create a conditional sale, it must have been the mistake of the person who drew the deed. \
    it is true that.no covenant in a mortgage can dog lh| equity of redemption. But if the transaction he not a mortgage, that principle does riot apply. Wherever a ■deed is as collateral security, there must he a personal remedy. Arid it- is no mortgage, unless it contain a personal obligation, or show it to be a loan. In the present deed there is no recital acknowledging a debt, and no covenant to pay hut the money is expressly acknowledgcd toy be received as purchase money. It was entirely within the discretion of Alexander to pay the motley or not at the time-
    Tjie, evidence justifies the inference, that the deed, from the trustees to Lyles was made with the consent of Alexander,- and being by consent, it is- equivalent to a foreclosure by a Court of Equity. Even if it were a mortgage originally, it might by subsequent assent become absolute. And if at the time of the release of the equity of redemption, a note be given that the releasor should have the lands conveyed to him, upon payment of what roas-given for t.h% lands "within a year, such payment having been neglected for several years, there shall bé rio redemption. Endsworth v. Griffith. 2 Eq. ca. ab. 595. c. 6.
    In all the cases cited to shew that a covenant to pay the money is not necessary in a mortgage, there is some other circumstance showing a loan of money, or desig suiting the instrument to- be a mortgage. But. in the present case there is no such circumstance.
    
      March 14th....
    
    
      All the Judges leingpresent,
    
   Marshall, Ch. J.

delivered the opinion of the as follows:

This suit was brought by Walter S. Alexander, as devisee of Robert Alexander, to redeem certain lands lying in the neighborhood of Alexandria, which were conveyed by' Robert Alexander, in trust, by deed dated the 20th of March, 1788, and which were afterwards conveyed to William Lyles, and by him to the testator of the Plaintiffs in error.

The-deed of the 20th of March, 1788, is between Robert Alexander of the first part, William Lyles of t.he second part, and Robert T. flooe, Robert Muiré and John Allison of the third part. , Robert Alexander, after reciting that he was seized of one undivided moiety of 400 acres of land, except 40 acre's thereof previously sold to Baldwin Dade, as tenant in common with Charles Alexander, in consideration of eight hundred pounds paid by William Lylc,s, and of the covenants therein mentioned, grants, bargains and sells twenty acres, part of the said undivided moiety, to William Lyles, his heirs and assigns forever, and the residue thereof, except that which had been previously sold to Baldwin Dade, to the said Robert T. Hdoe, Robert Muiré and John Allison, in trust, to convey the same to William Lyles fit any reasonable time after the first day of July,; ±790, unless Robert Alexander shall pay to the said William Lyles, on or before that day, the sum of 700Z. with interest from the said 20th of March, 4788; And if the said Robert Alexander shall pay the said William Lyles, on or before that day, the said sum of 700Z. with interest, then to rcconvey .the .same to the said Robert Alexander. Robert Alexander''further covenants, that, in the event of a reconveyance to him, the said twenty acres sold absolutely'shall be laid off adjoining the tract of land on which William Lyles then lived. The trustees covenant to convey to Wik ham Lyies, on- the non-payment of the said sum of 700L; mud to re-convey to Robert Alexander in the event of payment. Robert Alexander covenants' for further assurances as to the 140 acres, and warrants the twenty acres to William Lyles and his heirs.

On the 19th of July, 1790, the trustees, by a deéd in the trust is recited, and that Robert Alexander has failed to pay the said sum of 7Q0Z., convey the said, land in fee to William Lyles.

Ón-the 23d of August, 1790, William Lyles, in consideration , of 900Í., eonveyed the said 20 acres of land and 140 acres of land to Richard Conway with special warranty against himself and bis heirs.

On the 9th day of April, in the year 1791, a deed of partial partition was made between Richard Conway and Charles Alexander. This deed shows .that Charles Alexander asserted an exclusive title in himself to a .considerable part of this land.

Soon after this deed of partition was executed, Richard Conway entered upon a part of the lands assigned to him, and made on them permanent improvements of great value and at considerable expence. .

In January or February, 1793, Robert Alexander departed this life, having first made his last will in writing, in which he devises the land sold to Baldwin Dadej but does not mention the land sold to William Lyles.

The Plaintiff, who was then an infant, and who attained his age of twenty-one years in November, 1803, brought his bill to redeem in 1807. He claims under the residuary clause of Robert Alexander’s will.

The question to be decided is, whether Robert Alexander, by his deed of March, 1788, made a conditional sale of the property conveyed, by that .deed, to trustees, svhich sale became absolute by the non -payment of 700Z. with interest on the 1st of July, 1790, and by the conveyance of the ¿9th of that month, or is to be considered as having Only mortgaged the nropertv so conveyed;

To deny the power Of two individuals, capable of acting for themselves, to make a contract for the purchase and sale of lands defeasible by the payment of money at a future day, or, in other words, to make a sale with a reservation! to the vendor of a right to repurchase the same land at a fixed price and at a spedfied time, would be to transfer to the Court of Chancery, in a'considerable degree, the guardianship of adults as well as Of infants. Such contracts are certainly not prohibited either by the;' letter or the policy of the law. But the policy of the law does prohibit the conversion of a real mortgage into a sale. And as lenders of money are less under the pressure of circumstances which control the perfect and free exercise of the judgment than borrowers, the effort is frequently made by persons of this description to avail themselves of the advantage of this superiority, in order to obtain inequitable advantages. For this reason the leaning of Courts has been against them, and doubtful cases have generally been decided to be mortgages. But as a conditional sale, if really intended, is valid, the inquiry in every, case must be, whether the contract in the specific case is a security for the re-payment oí money or an actual sale.

In this case the form of the deed is not, in itself, conclusive either way. The want of a covenant to repay the money is not complete evidence that a conditional sale was intended, but is a circumstance of no inconsiderable importance, if the vendee must be restrained to his principal and interest, that principal and interest ought to be secure. ! It is, therefore, a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy x'eally exists, its not being resexved in teiuns will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument. Its existence, in this case, is certainly not to. be collected from the deed. There is no acknowledgement of a pre-existing debt, nor any covenant for repayment. An action, at law, for the recovery of the money, certainly could not have been sustained; and if, to a bill in chancery praying a sale of the premises, and a decree for so much money as might remain due, Robert Alexander had answered that this was a sale and not a mortgage, clear proof to the contrary must have been produced to justify a decree against him.

That the conveyance is made to trustees is not a cir-cum'stance of much weight. .It manifests an intention in tiie drawer of the instrument to avoid the usual forms of a mortgage, and introduces third persons, who aife perfect strangers to-the transaction, for no. other conceivable purpose than-to entitle William Lyles to a conveyance subsequ' nt to the. non-payment of the 700/., on the day fixed for its payment, which should be absolute in its form. This intention, however, would have no influence on the .case, if the instrument was really a security for money advanced and to be- repaid.

It is also a circumstance which, though light, is not to be entirely disregarded, that the 20 acres, which were admitted to be purchased absolutely, were not divided and conveyed separately. It would seem as if the parties considered it as at least possible that a division might be useless.

Having made these observations oh the deed itself, the Court will proceed to examine those extrinsic circumstances which are to determine whether it is to be construed a sale or a mortgage.

It is certain that this deed was not given to secure a pre-existing debt. The connexion between the parties commenced with this transaction.

The proof is also complete that there was no negotiation between tjie parties respecting a loan of money; no proposition ever made respecting a mortgage.

The testimony on this subject is from Mr. Lyles himself -and from' Mr. Charles Lee. There is some contrariety in their testimony, but they concür-in this material' .point: Mr. Lyles represents Alexander as desirous of selling the whole land absolutely, and himself ■as wishing to decline an absolute purchase of m.ore than twenty acres. Mr.' Lee states Lyles as having repre-:.sented to him that Alexander was unwilling to'"sell ihore than twenty aereé absolutely, and offered to sell |he' residue conditionally.-' There is ;not, however, a' syllable in the' cause, intimating a proposition to borrow money or to mortgage property. No expression is proved to have ever fallen from Robert Alexander before or after the transaction, respecting a loan or a mortgage. He does riot appear to have imagined that money was to be so obtained; and when it became absolutely necessary to raise money, he seems to have considered the sale of property as his only resource.

To. this circumstance the Court attaches much importance. Had there been any treaty — any conversation inspecting a loan or a mortgage, the deed might have been, with more reason, considered as a cover intended to veil a transaction differing in reality from the appearance it assumed.. But there was no such conversation. The parties met and treated upon the ground of sale and not of mortgage..

It is not entirely unworthy of notice that William Lyles, was not a lender , of money, nor. a man Who was in the habit of placing his funds beyond his ‘reach. This, however, has not been relied upon, because the evidence is admitted to be complete, that Lyles did' not intend to take a mortgage, But.it is insisted that he intended to take a security for money, and to avoid the equity of redemption; an intention which a Court of Cháncerv will invariably defeat.

His not being in the practice of lending money is certainly an argument against ills intending this trans- . action as a loan, and the evidence in the cause furnishes strong reason for the opinion that Robert Alexander himself did not so understand it; In this view of the case the proposition made to Lyles, being for a sale and not for a mortgage, is entitled to great consideration; There are nther circumstances, too,'which bear strongly upon this point.

The case, in its own' nature, furnishes intrinsic. evidence of the improbability that the trustees would have conveyed to William Lyles without some communication with Robert Alexander. They certainly ought to have knojwn from himself, and”it was easy to procure the information, that Jthe money had not been paid. If he had considered this :deed as a mortgage, he would naturally have resisted the conveyance, and it is probable that the trustees would have declined making it. This probability is very much strengthened by the facts which are stated by Mr. Lee. The declaration made to him by Lyles, after having carried the deed drawn by Mr. Lee to Mr. Hooe, that the trustees were unwilling to execute it until the assent of Alexander could be obtained, and the directions given to apply for that assent, furnish strong reasons for the opinion that this assent was given.

It is also a very materia! circumstance that, after a public sale from Lyles to Conway, and a, partition between Conway ,and Charles Alexander, Conway took possession of the premises, and llegan those expensive improvements which have added so much to the value of the property. These facts must be presumed to have been known to Robert Alexander. They passed within his view. Yet ids most intimate Mends never heard him suggest that he retained any interest in the land. In this aspect of the case, too, the will of Robert Alexander is far from being unimportant. That he mentions forty acres sold to Raidvvin Dade, and does not,mention one hundred and forty acres, the residue of the same tract, cari be ascribed only to the opinion that the residue was no longer his.

This, then, is a case in which there was no previous debt, no loan in contemplation, no stipulation for the repayment of the money advanced, and no proposition for or convérsation about a mortgage. It is a case in which one party certainly considered himself as making a purchase, and the other appears to have considered himself as making a conditional sale. Yet there.are circumstances which nearly balance these, and, have induced much doubt and hesitation in the mind of some of the court.

The sale, on the part of Alexander, was not completely voluntary. He was in jail and was much pressed for a sum of money. Though this circumstance does not deprive a man of the right to dispose of his property, it gives a complexion to his contracts* and must have some influence m a doubtful case. The very fact that the sale was conditional, implies an expectation to redeem.

A conditional sale made in such a situation at a price bearing no proportion to the value of the property would bring suspicion on the whole transaction. . The excessive inadequacy of price would, in, itself, in the opinion of Some of the ¡judges, furnish irresistable proof that a sale could not have been intended. If lands were sold at 5L per acre conditionally, which, in fact,, were worth 15i. or 201. or 501. per acre, the evidence furnished by this fact, that only a security for money could be intended, would be, in the opinion of three judges, so strong as to overrule all the opposing testimony in the cause:

But the testimony on this point is' too uncertain and , conflicting to prevail against the strong proof of intending a sale and purchase, which was stated;

The sales made by Mr. Dick and Mr. Hartshorne of lots for building, although of land more remote from the town Of Alexandria than that sold to Lyles, may be thore valuable as building lots, and may consequently sell at a niuch higher price than this ground would have commanded. The relative value of property in' the neighborhood of a town depends oñ so many other circumstances than mere distance, and is sO different at different times that these sales cannot he taken as a. sure, guide.

That twenty acres, part of the tract* were sold absolutely for 51. per acre; that Lyles sold to Conway at a very small advance 5 that he had previously offered the property to others unsuccessfully 5 that it was valubd by several persons at a price not much above what he gave 5 that Robert Alexander, although rich in other property, made no effort to relieve this, are facts which render the real value, at the time of sale, too doubtful to make the inadequacy of price a circumstance of sufficient weight to convert this deed into a mortgage,.

It is, therefore, the opinion of .the Court that the de; cree of the Circuit Court is erroneous and ought to be Reserved, .and.that the cause be remanded to that Court; with directions to dismiss the bill.

Decree reversed.  