PATRICK ROGAN, vs. MARTIN O. WALKER, ELLIS BAKER and JAMES ROGAN, 1 Wis. 527

By the Court, Smith, J. [The Chief Justice and Mr. Justice Crawford having been concerned in some way as counsel, in some former stage of litigation upon the subject matter of the suit, a stipulation was entered into between the counsel for the respective parties, to have the case heard before Mr.

Justice Smith, and hy him decided, which was accordingly done.] I stall first examine this case, in tlie light of the written contracts between the parties, and of the matters established by the bill and answer., without reference tó the proof taken ; and first: What are the rights of the parties, derived from the bond of Roganto Walter, and Walker’s deed to Rogan ? It is contended on the part of the complainant, that the deed, on its face, is in its legal effect, a mortgage, and under it the complainant has a right to redeem.

But if not, the parol proof submitted by him, shows the original transaction to have been a loan of money, and that the deed and bond were executed in the manner and form they were, to secure the payment of the sum loaned, and interest.

On the contrary, it is insisted by the defendant, Walker, by his counsel, that the deed is not by its terms, its legal effect, or in consequence of any of the facts or circumstances recited therein, in law a mortgage ; that it does not show on its face to have been executed, with the bond recited, to secure the payment of a loan of money and interest, but that it is a deed with a condition precedent; that by its effect no estate passed until the performance of the condition in full; that this condition must be punctually and literally performed by the grantee before any estate could, by its terms, vest; and that parol proof is inadmissible to prove any'facts or circumstances which would vary the terms of legal effect or control the operation of the deed.

That this deed is a strictly technical mortgage, I apprehend no one will contend. It wants many of the essential elements of a mortgage. Who is the mortgager ? Not Rogan, for he makes no deed, passing an estate to Walker. Not Walker, for he is placed by the bill in the character of mortgagee, and it is against him as a mortgagee, 'wrongfully denying the equitable rights of the mortgagor to redeem, that the bill addresses itself to the consideration of the court.

Nor does it present itself like those cases in. which the owner of an estate, to secure a loan of money, makes to the loanor an absolute conveyance of his estate, to secure the payment of the loan ; for by the terms of the deed and bond recited, no estate is shown to have passed from Hogan to Walker. Walker is not strictly a mortgagee, for no estate lias passed to him from Kogan. Kogan is not a mortgagor, for he has parted with no estate upon condition, which he has evidenced by deed.

It is not, however, indispensable to apply an approved technical term to an instrument or transaction, in order to perceive and administer the equities which, it may disclose. Nor should it be demanded, that all the various transactions and forms of agreement, to which modern improvement and advanced civilization and progress have given rise, should be reduced within the scope of nomenclature, adopted in the early stages of legal science. Nor is it wonderful that in the pursuit of substance, names have been left in the rear.

It is sufficient that the established principles of equitable jurisprudence are found competent to the substantial and equal administration of justice.

According to such principles, we shall preceed to examine the deed in question, and to give to it its proper construction and legal effect. “ An estate upon conditionH' says Black-stone, 2 Com. 153 ; “is one whose existence depends upon the happening of some uncertain event, whereby the estate may "be either originally created or enlarged, or finally defeated Again, page 154 : “An estate on condition expressed in the grant itself, is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, npon performance or breach of such qualification or condition.

These conditions are there!ore either precedent or subsequent. Precedent, are such as must happen or be performed before the estate can vest or be enlarged ; subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A. upon his marriage with B., the marriage is a precedent condition, and until that happens, no estate is vested in A.

Or, if a man grant to his lessee for years, that upon the payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee simple passeth not till the hundred marks be paid.

But, if a man grant an estate in fee simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter and avoid the estate ; in this case, the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed.” Kent, in his Commentaries, vol. 4, page 125, says : “ These conditions are also either precedent or subsequent, and, as there are no technical words to distinguish them, it follows, that whether they be the one or the other, is matter of construction, and depends upon the intention of the party creating the estate.

A precedent condition is one which, must take place "before the estate can vest, or he enlarged; as, if a lease he made to B. for a year, to commence from the first day of May thereafter, upon condition that B. paid a certain sum of money within the time ; br, if an estate for life he limited to A. upon his marriage with B.: here, the payment of the money in the one case, and the marriage in the other, are precedent conditions, and until the condition he performed, the estate cannot he claimed or vest.

Precedent conditions must he literally performed ; and even a court of chancery will never vest an estate, when, hy reason of a condition precedent, it will not vest in law.” Again, page 125, the same author says: “Subsequent conditions are those which operate upon estates already vested, and render them liable to he defeated. Of this kind are most of the estates upon condition in law, and which are liable to he defeated on breach of the condition,'or on failure of payment of the rent, or performance of other services annexed to the estate.

So long as these estates upon subsequent condition continue unbroken, they remain in the same situation as if no qualification had been annexed.” See also Wood's Inst. 142. “ Conditions in deed may he subdivided into conditions precedent, which must he performed before the estate can take effect, and conditions subsequent to the estate, or to he executed after it.” Wood's Iust. 235. “ Conditions precedent are such as must he punctually performed before the estate can vest; hut on a condition , subsequent, the estate is immediately executed ; yet the continuance of such estate dependeth on the breach or performance of the condition.” 1 Bacon's Abr. 640.

With these lights before us, we are prepared to enter upon the examination of the deed of Walter to x James Rogan. It is conceded that no precise words are essential to determine the character of a condition expressed in the deed, whether the same "be precedent or subsequent, but that its character depends upon the construction of the whole instrument. It is also certain that this is a conditional deed. But the important question to be settled is, whether the condition expressed in the deed be precedent or sub-suquent, for chancery may relieve against the latter, but perhaps not against the former.

The language of the deed is as follows: “ This indenture made this 2lth day of February, A. D., 1839, between Martin O.

Walker, of the city of Troy, in the State of New York, party of the first part, and James Rogan, of &c., of the second part; witnesseth, that the said party of the first part, fai* and in consideration of the conditions of a certain bond, hereinafter named, and of one dollar in hand paid by the said party of the second part <fec., hath granted, bargained, sold, and by these presents, do grant, bargain, sell and confirm, unto the said party of the second party, his heirs and assigns, all those certain pieces or parcels of land, &c., together with all and singular, the appurtenances thereunto belonging, and all the estate, right, title, interest, claim or demand, whatsoever, of the said party of the first part, either in law or equity, of, in, and to the above bargained premises ; to have and to hold the said premises above described, with the appurtenances unto the said,party of the second part, and his heirs and assigns,” * * here follow covenants for quiet enjoyment, &g., “ against all and every person or persons lawfully claiming or to claim the whole or any part thereof, "by, through or under the said party of the first part, will warrant and defend.

Condition-et^ ari<^ Provide<3> always, anything herein contained to the contrary notwithstanding, that if the said party of the second part shall fail to comply with the conditions, or any part thereof, of a certain bond, hearing even date with these presents, and hereinafter described, then this conveyance, and the estate hereby created, shall cease, determine, and be of no effect.

And the said party of the first part, or his legal representatives, shall have the right to re-enter and take possession of said premises, and to sell and convey the same to any other person or persons, and to keep and retain all moneys paid herein, without recourse either in law or equity; which said bond is in the words and figures following,” &c., &c. This is the whole of the substance of the deed and the conditions annexed.

In the argument, it seemed to have been assumed by the counsel for the defendant, that the condition expressed in this deed is a condition precedent, and that no estate vested until the performance of the conditions recited in the bond named ; which conditions are, to pay Walker and Baker $829.58 on the 18th day of February, A. D. 1843, and to pay annually $29.04 as interest on said sum, to pay all taxes, assessments or impositions that might be legally imposed on the premises, and to save him and them harmless.

But if such was the intention of the party in making the deed, he was certainly very unfortunate in his selection of terms, by which such intention was sought to be expressed. The words of grant are full and ample, and are nowhere in the deed limited, or sought to be limited in their effective force, or postponed to, or made dependant upon, the performance of any condition whatsoever. They follow immediately the expression of the consideration, which is the bond of the complainant and one dollar paid by him. The grant of the one party was the equivalent for the bond of the other.

The estate conveyed was the consideration of the bond, and the bond delivered was th,e consideration for the grant of the estate. Walker held the complainant’s bond, which he could enforce inlaw, and the complainant held Walker’s deed, which he could make absolute by performing the conditions of his bond. It is true that when a condition precedent is expressed in the deed, no estate can vest until the condition be performed. But in all deeds containing a condition precedent, it is expressly declared, that the grant is upon such a condition, or the estate is to be enlarged upon the happening of the event.

As in the case put in Blackstone, “If a man grant to'his lessee for years, that upon the payment of 100 marks within the term he shall have the fee.” Here the existing state, for years is to be enlarged to the fee, by the performance of a precedent condition, within the term ; very different from the case where, if a man grant to A. the fee simple of an estate, which should cease and determine at the end of a term of years, in case A. should .fail to pay the 100 marks within the term.

In the one case an estate is to be enlarged upon the performance of a condition, in the other the estate is to be defeated upon failure to perform the condition, or, in other words, in the one case the condition is precedent, and in the other it is subsequent. But in the deed before us, the defendant does not grant and confirm the premises unto the complainant upon the performance of the conditions named in the bond oí the latter. He no where intimates his intention to hold the estate in himself nntil the performance of the bond.

On the contrary, he expressly declares, that npon the failure of the complainant to perform the conditions, the estate thereby created should “ cease, determine and be of no effect. It was not the performance of the condition which should vest the estate, but it was the failure to perform the condition which should cause the estate already by the deed vested, to cease and determine. The words “the estate hereby created shall cease, determine, and be of no effect,” are too significant to be overlooked in ascertaining the proper construction of this deed.

If no estate was intended to be vested until the performance of the bond, why not say so, or use words expressive of such idea? why say, that upon failure to perform, the “ estate thereby created shall cease.” An estate must begin to run before it can cease. There can be no determination to an estate which never had a beginning.

Yet the condition here is, that upon failure to perform, the estate shall cease, not that upon performance the estate shall vest; that upon breach of condition the estate shall determine, not that upon compliance with the condition it shall commence; that upon failure of performance the conveyance and the estate thereby created should be of no effect, not that upon ¡performance the conveyance and the estate thereby created should take effect.

But again, the deed further provides that if the party of the second part faded to comply with the conditions of his bond, the paxty of the first part should have the right to re-enter and take possession, &c. This provision certainly implies an estate accompanied with, possession. Until failure of the grantee, there is no right reserved to the grantor. Until condition broken, there is no right to enter. The reservation of the right to re-enter upon breach of condition, implies the previous investiture of the grantee, and the divestiture of the grantor.

Until the failure of the grantee to comply, his dominion was complete. The grantor had no right of entry, no estate to convey or to claim ; it was all in the complainant; to cease and determine, it is true, upon breach of condition; but, until that event, it was in him entire and absolute, subject only, not to be vested upon performance, but to be divested or defeated upon non-performance. The right to re-enter, is by no means a novel reservation, accompanying a grant expressed in the deed. This, and the like, are the usual accompaniments of conditions subsequent.

Their applicability to conditions precedent would be novel, if not absurd ; for, as no estate vests until the performance of the condition, and as, upon performance, the estate becomes absolute, the reservation of the right to re-enter in case of breach would be without reason. But in regard to conditions subsequent, such reservation is proper, for it implies the right of the grantor to resume that with which he has before parted — -to re-invest himself of that of which he had before been divested.

And for this we have the authority of the books. “ But if a man grants an estate in fee simple, reserving to himself and his heirs a certain rent, and that, if such rent be not paid at the time limited, it shall be lawful for him and his heirs to re-enter and avoid the estate ; in this case, the grantee and his heirs have an estate upon a condition subsequent, which is defe|tsible if the condition be not strictly performed.” f Blade. Com. 155; Bacon's Abr. Title Condition; Wood's Inst.; Coke's Littleton.

Again, the very words of the grant indicate the intention of the grantor to pass the estate on delivery The party of the first part “hath granted, bargained and sold; and by these presents does grant, bargain, sell and confirm unto the said party of the second part.” ' These words, unless modified and restricted by the inevitable force of other words following, create an estate m presentí, and the following modifying words mnst be construed so as to support the estate, unless they are repugnant to such idea.

The terms of the condition in this deed are not only not repugnant to, but, it would seem, were selected for their harmony, with the idea of the creation of a present estate ; for in case of failure to comply with the conditions of the bond, “ the estate hereby created" (that is, the estate now made and passed to the grantee) “shall cease, determine,, and be of no effect.” This language is wholly irreconcileable with the idea contended for by the counsel for the defendant, that, until performance, no estate could or should be created, for then the words “cease and determine” would be without meaning. “A testator gave a large amount of lands to his wife” for life, and all her real estate at her death to A., on condition of his marrying a daughter of B. and 0., who, at the making of the will, had n’o child.

Held the making of the gift being in presentí, “ I give,” &c., imported an immediate interest. “ it would have been otherwise, it seems, if the devise had been,£ I devise my land to A. on his marrying BP' Finley vs. King, 9 Pet. 374; Taylor vs. Mason, 9 Wheat. 325. Conveyance in fee, reserving a life. estate in part of the land, “ this deed to take effect on the following conditions,” viz : payment of money at divers times to several persons. The fee passes on conditions subsequent. Howard vs. Turner, 6 Greenl. 106.

Enough has been said, it is believed, to satisfy every one that the condition expressed in this deed is a condition subsequent. That an estate vested in presentí, and breach of condition was to defeat the estate, and not that performance was to vest it. But there are other considerations which present themselves upon the full examination of all the circumstances referred to and expressed in the deed.

Had it been the intention of the party grantor, to make and execute a simple deed, with a condition precedent to the vesting or creating an estate, that intention would have been fulfilled by the expression of the condition, and that the estate was to vest upon the performance. If the intention was to hold the fee in himself, and not to part with it, except upon compliance with the conditions by the grantee, it would have been quite sufficient to have made such a deed, and to have stopped there. But there is more of the transaction than this.

It was not enough to affix to his deed a condition for the payment of money, leaving it optional with the grantee to fulfil the condition or not; but the grantor goes further, and takes a penal bond from the grantee, by which the latter is bound to the performance of the condition at all events; thus showing that the grantor himself did not choose to rest the transaction upon a mere condition in his deed, by which the estate might either vest or be defeated, but that he chose rather to pass the estate with a condition of defeasance, and to superadd the personal obligation of the grantee.

It is impossible not to regard the bond recited as a prominent, if not a distinguishing feature of the instrument under consideration. It formed, in fact, the sole consideration of the deed. It was made in view of the deed to he executed. It arose directly out of the land mentioned in the deed, as is evident from the matters recited in the conditions of the bond, among which were, to pay all taxes and assessments imposed upon the premises, and to save them harmless, &c.

The bond being for the payment of a certain sum of money and interest, and for the payment of the taxes that might be assessed upon the land, and the deed being in consideration of the bond, can any one doubt, looking to the evidence presented by the deed and bond only, that the bond was given for the payment of the purchase money ? Can any court of equity, mindful of its obligations, with this deed and its recitations in view, close its understanding to the conclusions which inevitably flow therefrom ?

Now suppose the deed of Walker to Rogan had recited, as it does, the whole of the bond as it is, stated the bond as its sole consideration, and then had closed with the covenants for quiet enjoyment, &c., without any condition whatsoever annexed. What would then have been the relation of the parties ? From the face of the instrument itself, could any one doubt that the bond recited was given for the purchase money ? Would not Walker stand in the relation of an equitable mortgagee of the premises ? and would any court of equity hesitafe to decree his lien upon the premises for his purcffi.se money ?

And would any court hesitate to decree the cancellation of the bond upon its payment or tender, and discharge the premises from such equitable lien ? The execution and delivery of the bond on the part of Kogan, and the execution and delivery of the deed in consideration of the bond, on the part of Walker, establishes the mutuality of the transaction between the parties, and, together with the recitals contained in the deed, leaves the real nature of the transaction in little doubt or obscurity.

Without, therefore, looking to the parol proof introduced, but discovering the character of the deed, and trasactions between the parties, from the deed itself and the conditions of the bond recited in it, it is sufficiently apparent, that the bond was for the purchase money for the land, that it was made prior to or at the same time as the deed, that instead of conveying the land by deed absolute, and taking back a mortgage collateral to the bond, Walker inserted in his deed a condition of defeasance on non-compliance with the conditions of the bond.

It is impossible for me, otherwise to construe the deed, and the bond therein recited, and if this construction be correct, equitable relations between the parties are established, and it only remains to ascertain and determine their nature, character and extent But before proceeding to define the existing equi-. ties between the parties, we will endeavor to examine some of the other questions, or points made by the counsel, as bearing materially upon the case, if not to control its determination.

It is contended by the complainant, that “ If a conveyance of real estate be made as security, whatever be the form, equity will hold it a mortgage,” and to this point he cites Flagg vs. Mann, 2 Sumner, 487; Parks vs. Hale, 2 Pick. 211; Barton vs. May, 3 Sanford, 450. This proposition is admitted on the part of the defendant. # , R will be recollected, that hitherto we have considered this case solely upon the proofs furnished by the deed and the bond recited therein.

We shall continue to do so for the present, not intending, however, to evade the points made by the counsel in relation to the admissibility and effect of the parol proof taken in the case, but, designing to test this instrument, by the rules of equity jurisprudence, without aid from collateral proofs or circumstances. Hence we have not sought to inquire after the source of Walker’s title. We have not sought to find out what pre-exist-ing title or equities, if any, Hogan may have had in the land. It will hereafter be proper to do so, but not now.

Is there, then, a conveyance here made by any body, or in any form as a security ? To answer this question, let us look again to the evidence furnished by the deed of Walker to Kogan. Was there an indebtedness by Hogan to Walker ? This is evidenced by his bond to Walker. Now if Kogan had conveyed this or any other land to Walker to 'secure the payment of the bond, such conveyance, whatever may have been its form, equity, would hold it a mortgage. But Hogan makes no conveyance. Yet here is a conveyance made by Walker to Kogan.

If the indebtedness evidenced by the bond had subsisted independent of any other transaction between the parties, than one having reference to the land, Walker would not have made a conveyance of the land to Kogan to be absolute upon its payment. The bond was evidently the sole consideration of the conveyance. If A. owes me $500,1 certainly will not convey to him my farm in consideration of Ms paying me. But if I deed Mm my farm in consideration of J Ms paying me a certain snm of money, the sum of money is the purchase price.

If I deed him my farm in consideration of his bond, which I take for the payment of the same sum of money, it is equally a sale on my part and a purchase on the part of A. But if, instead of deeding absolutely to A. on his execution and delivery of his bond for the purchase money, I insert in my deed a condition, that in case he does not pay his bond, the estate conveyed shall cease and determine, my motive in making the condition is apparent. If A. had paid me the purchase money at the execution or delivery of the deed, no condition would have been inserted.

But as he paid me his bond instead of the money, I inserted the condition. Why did I do so ? To retain or hold in my hand such a claim upon, or interest in the land as shall secure the ultimate payment of the money according to the terms of the bond.

If I had given A. an absolute deed, and he had given me back a mortgage to secure the payment of his bond, how would the equitable relations of the parties be altered \ In the one case, the condition of defeasance expressed in my deed would be avoided by the payment of the bond, and in the other, the condition of de. feasance expressed in A.’s mortgage would be kept and performed. In both cases, the two grand results aimed at by both parties are accomplished, viz : the payment of the purchase money by A., and the vesting of an absolute estate in him.

The equitable relations between the parties are precisely the same in both cases, and the energies of a court of equity are not to be paralyzed by the mere change of forms, nor its arm shortened by the avoidance of technical terms, or its inability to apply them. This view of the case, ^ seems to me, exactly illustrates the transaction and relations between the complainant and the defendant, as they are made to appear by the deed and the bond recited in it.

It is true, Walker is not a mortgagee, nor is Kogan a mortgagor, in the strict sense of the terms, but we have seen that the equities between them are of the same character as those between mortgagor and mortgagee for the purchase of an estate ; and because a contrivance has been resorted to, for the avowed purpose of defeating and crushing those equities, a court of chancery would be derelict to its most sacred character and functions, if, when applied to for relief, it should allow such a contrivance to succeed.

One of the most beneficent heads of its jurisdiction ’ is, to relieve against conditions subsequent ; to support an estate vested, but which is liable to be defeated for want of strict performance of the condition on which it was to be determined. And for this reason, conditions subsequent are not favored in equity, because they go to defeat an estate vested.

Upon the proposition made by the complainant’s counsel, and assented to by the counsel for the defendant, it would seem that the equitable relations of the parties are similar in their character to those of a mortgagor and mortgagee, for the purchase money of an estate.

It has already been shown that the bond of Kogan was for the purchase money of the land in question; that Walker was not content to rest the transaction upon a precedent condition, that the deed was not to take effect, or the estate to vest, until the payment of a certain sum of money ; but that he chose rather to bind Rogan, under his hand and seal, for the payment of the money, with a condition of defeasance in his deed, in case the bond was not paid or performed; that the taking of the bond by ker, and its recital in the deed, give to' the transaction a character which perhaps it might not otherwise bave had ; and that the giving of the bond on the one hand, and the execution of the deed on the other, established the mutuality of the transaction.

It is now apparent, that by the condition of defeasance in the deed, the estate would revest, in law, in Walker, and he would have the right to re-enter, upon the failure to perform the conditions of the bond, the same as upon condition broken in a mortgage. He would also have the right of foreclosure, even without the condition in the deed, as for the purchase money, and the condition could give him no more. If, therefore, the right to re-enter, and to foreclose, or to procure the payment of the bond out of the estate, remained in Walker, what rights remained in Rogan ? Clearly, the correlative right to redeem.

If a court of equity would lend its aid to Walker, to foreclose the equity of redemption in case of Rogan’s neglect or refusal to comply with his bond, it will equally lend its aid to Rogan to protect and enforce his right of redemption, if applied to within the time, during which such right will be recognized as existing. The relations of the parties and their respective rights, as hereinbefore stated, result inevitably from the deed and bond recited in it. I have been unable to put any other construction upon it.

The view taken of it by the counsel for the defendant, it seems to me, is in direct conflict with the very terms of the instrument, and there is nothing in the transaction as developed by the recitals or languuge of the deed, that would authorise a different construction than that which the very words imply. The fulfilment of the con' dition of the bond is not a condition precedent to the vesting of the estate, but the reverse ; the estate is to cease upon their non-fulfilment.

Keeping out of view every impression suggested by the testimony, dehors the deed ; it is to my mind cleai', that the condition of defeasance expressed in the deed, the consideration thereof, and especially the taking of the bond, fix the character of the instrument. In Morris vs. Nixon, 17 Peters, 109, the taking of the bond for the money paid, was held to fix the character of the transaction, and to control the deed, which was absolute on its face. In the case of Conway's Ex'rs vs.

Alexander, 7 Cranch, 218, it was held that the absence of any bond or note, or other evidence of debt, was strong evidence to show that none existed, and that the transaction was what it appeared to be, a conditional sale. ' C. J. Marshall, in delivering the opinion of the court, says : “In this, 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 a mortgagee should have a remedy against the person of the debtor. If this remedy really exists, its not being reserved in terms will not affect the case.

But it must exist, in order to justify a construction which overrules the express words of the instrument.” This language strongly implies, that the taking of a note, bond, or other personal obligation by tbe vendee, would overrule tbe express words of tbe instrument, and raise an equity of redemption ; for tbe bill filed in that case was, a bill to redeem, claiming that tbe conveyance was to secure a loan of money, and not a sale upon condition. In tbe case of Brown vs. Dewey, 2 Barb. S. C.

Rep. 28, was a bill filed by Brown against Dewey, to decree an absolute deed a mortgage, as having been given to secure a loan of money, and also to decree it void on account of usury. Mr. Justice Harris, in delivering tbe opinion of tbe court, says : “ In form tbe conveyance is absolute, with an agreement to recon-vey upon certain conditions.

But if it appears, either from tbe instrument executed by tbe parties, or by parol evidence, that tbe transaction was' originally intended as a security for money, no form of words used by tbe parties in executing their intent, will be allowed in a court of equity to defeat their object.” “Although it is true that courts of equity are strongly in favor of tbe right of redemption, and for this reason, in doubtful cases, contracts of this kind have frequently been construed as mortgages, rather than conditional sales; yet, when tbe aid of tbe court is sought, not to establish a right of redemption, but to have a conveyance declared a mortgage, for tbe pux*pose of avoiding it on tbe ground of usury, tbe reason why, in doubtful cases, tbe court should bold tbe conveyance to be a mortgage, seems to fail.” “ It is tbe right of redemption in favor of which tbe court leans, not to have tbe security avoided on tbe ground of usury.’’ “When tbe grantor, by virtue of tbe contract for resale, has .the privilege mérely of re-purchasing tbe property upon tbe terms stipulated, without any obligation on Ms part to comply with such terms, it has, in some cases, been held to he conclusive evidence that a conditional sale was intended; while, on the other hand, the fact of there being a right of the grantee to recover the money which he has stipulated to receive, as the condition of a re-conveyance, thus making the obligation between the parties mutual and' reciprocal, has sometimes been held to be sufficient ground for treating the transaction as a mortgage.” In that case, the sale was held to be conditional, and the decision was placed almost, if not entirely, upon the ground that no bond, note, or other obligation, was given by the complainant to pay the price stipulated in the condition for re-purchase.

See also Holmes vs. Grant, 8 Paige, 243; Glover vs. Payne, 18 Wend. 518, where the want of an obligation for the re-payment of the purchase money, relieved the conveyance from liability to construction as a mortgage, and allowed it to stand as a conditional sale. So also in Russell vs.

Southard et al. 12 Howard, 142, it seems to have been conceded that if Russell had made any bond or agreement to pay'the money, there would have been a clear case for redemption, and the circumstances of such agreement being wanting in that case, it was urged with force, that the case was one of a conditional sale, and not in the nature of a mortgage. The doctrine established by these cases is by no means new. It springs naturally and necessarily from our first notions of equit}/.

The condition without the bond would be as a proposition to sell, or a refusal of the premises at a stipulated price, within a prescribed time,'without any obligation on the part of the complainant to pay the price ; and so the courts have held that contracts of this hind would not, from the mere face of the instrument, without any evidence _ . . . , ^ showing the intention of the parties to have been different, or without proof of circumstances showing the transaction to have been in fact a loan of money, and the conveyance to have been made as a security, be construed as mortgages.

But I have been unable to find a single case, and, from the notions I have of the principles of equity jurisprudence, do not expect to find a single case, where a deed, with a condition of defeasance, in default of payment of the consideration, having been made, and a bond for the payment of such consideration, having been taken, an equity of redemption has been denied, if claimed within proper time.

In 2d Greenleaf's Cruise, the learned author, in a note to the text, says, “If a a deed be made, to be absolute on the payment of certain notes, but in default thereof, to be void, it is a mortgage,” and he cites Lincoln & Ken. Bank vs. Drummond, 5 Mass. 321, and Carr vs. Holbrook, 1 Miss. 240. The report of the former of the cases cited does not sustain the position; but the latter does, and is strictly in point here.

In that case, the complainant Carr had sold to John Hol-brook certain lands, for which the latter had given his notes to the amount of $4,000, payable at future times, and Carr conveyed the premises by deed to Holbrook, conditioned to be void on the failure of Holbrook to pay the notes. The notes were not paid, and proceedings were instituted to foreclose, as in case of mortgage. The objection was made to the construction of the deed as a mortgage, and the point distinctly presented to the court, and the deed held to be a mortgage. This opinion of Mr.

Greenleaf is also sustained by the fair import of the authorities heretofore cited, as to the effect of the giving a bond or ob-for the payment of the money on the one hand, and the absence of such obligation on the other. Did I entertain a doubt that the construction I have given to the deed and bond recited therein, is correct, then according to the well established rules of equity jurisdiction, I should be bound to throw the doubt into the scale, in favor of the equity of redemption. The authorities on this point are conclusive. But I do not entertain the slightest doubt in this respect.

The decision of this case might therefore be rested upon the'deed itself and I need go no further than to inquire, whether the bill filed in this case is so framed as to permit the court to grant the relief ashed, and whether the equity of redemption that did subsist, has not been lost by the laches of Bogan, or his grantees. Dor it does not follow necessarily, that though there may have been an equity of redemption in this case, that such equity is precisely the same in kind, degree and duration, as in the case of a purely technical mortgage. I do not now say that it is, or is not the same. .

But other questions have arisen in the argument of this case, and have been discussed with great ability, after profound research. So far as those questions affect this case, I have no disposition to shrink from them.

It is contended by the counsel for the defendant, that the parol evidence taken and submitted in this case, is inadmissible that the rights of the parties are to be determined by the written instrument, and that its effect cannot be varied or controlled by parol evidence, unless, upon a bill filed to reform the instru-7 1 , ment, and that only in cases where the instrument is defective, or fails to express the true intent of the par- ,, - . _ . , ties through fraud, accident or mistake ; and he cites various authorities, a reference to which will be found in a former part of the report.

The counsel distinctly claims, that parol evidence of such kind is only admissible on a bill brought to reform the instrument, and the cases cited from Barbour’s Supreme Court reports, go far to sustain his position. But after a critical examination of the opinions delivered in those cases, and with great respect, I am compelled to withhold my assent to the correctness of the views there expressed. The case in 10 Barbour, 583, came before the court upon a motion to confirm the report of a referee, and for an order to distribute the monies arising from a sale under a decree of foreclosure.

There were various and numerous claimants to the proceeds. One endeavored to defeat the claim of another, by attempting to show that the deed of the latter in fee which was the basis of his claim, was intended as, and was in fact a mortgage. The court in that case said, that the parties to. the deed and their privies, were estopped from alleging that it was not intended as an absolute deed, but that strangers to the deed were not estopped from showing by parol the true nature of the transaction out of which the deed arose.

And in the course of the opinion, it is said that the parties and their privies, are not permitted to show by parol, the transaction to be different from what the deed imports, unless it be, where a bill is filed to reform the instrument, on the ground of accident, fraud or mistake in its formation. Whether or not, it was competent, in that case to go into parol proof to ascertain the equitable relations subsisting between each and every of the parties to that proceeding, and their respective grantees of the paper, interest or title therein exhibited, it is not necessary to inquire.

That court decided, that in the particular instance before it, it was not competent, and that for all the purposes for which the parties were then before the court, the parties to the deed and their privies were estopped from denying its legal import, and could not introduce parol.proof to control it.

But when the court went further, and declared that parol proof of the transaction between the parties to such contracts was only admissible on a bill filed to reform the instrument, it is respectfully suggested that it went beyond the purview of the case under adjudication, and to an extent incompatible with well established principles. It is said that fraud, accident and mistake are peculiar heads of equity jurisprudence, and therefore, a bill fled to reform a deed or contract on such grounds, opens the door to the admission of parol proof of the transactions and intent of the parties.

This is true indeed; but is not an equity of redemption as much a subject of equity jurisdiction as fraud, accident or mistake ? Where there is a clear equity of redemption in fact, it is difficult to perceive why it may not be shown under a bill to redeem as well as under a bill to reform the deed. The object of the bill to reform the deed is, not to create an equity of redemption, but to establish and perpetuate the evidence of its existence ; and, having been proved sufficiently to reform the deed, and ihat being done, equity will lend its further aid in enforcing the right to redeem thus established.

There can he no reason, why the same evidence may not he admissible in case of a . v , , , . to redeem, if the equity is ripe for execution, or m case of a hill to reform the instrument, for the purpose of evidencing the equity. In both cases the equity of redemption is to be first established by proof dehors the deed; I speak here of cases of bills to redeem, in which the equity of redemption does not appear from the instrument.

In a case where there was really a right to redeem, and that had been omitted to be secured or evidenced in the deed through fraud, accident or mistake, can it be supposed that the holder of that equity must first file a bill to reform his deed, and then file another bill to enforce his right ?

If the party is entitled to redeem at the time of filing his bill, there is no necessity for a reformation of the instrument, but he may proceed at once with, his bill to redeem, without seeking to reform, for such a reformation can only be useful in preserving the evidence of the right until the party is in circumstances to claim and enforce it. And, accordingly we find, that in no case where a bill is filed to redeem, the right being claimed, based upon facts and circumstances dehors the deed, is the deed sought to be reformed.

But this is only done in those cases in which the right to redeem is remote, or not susceptible of immediate enforcement; and I have yet to learn the case in which, on a bill to redeem, objection has been taken, that the bill was to redeem and not to reform. When the time for performance has not elapsed, and consequently the right of redemption is still incohate, a bill to reform is the proper remedy.

But when the time has elapsed, and the right tas accrued, then a hill for redemption is the proper remedy, and in the latter case the circumstances and facts of the original transaction may he proved hy parol, not to vary the instrument, hut to control it. Or, in other words, to discover whether the circumstances and facts, raise an equity of redemption ; for if they do, that equity is an incident to the transaction itself, not to the deed or instrument. The instrument does not create it. It is the creature of the law, and cannot he destroyed by the contract of the parties to that end.

Nor is a Court of Chancery limited to cases of fraud, accident or mistake, in which it can grant relief; (I mean, in the original draught of the instrument.) It is quite clearly stated in several cases, that the attempt to convert into an absolute conveyance, that which was intended to he in the nature of a mortgage, or to set up, as absolute and conclusive, a deed which is conditional and redeemable, is itself, a fraud upon the law, which a court of equity will rebuke and defeat.

Besides* undue advantage or inducements to reliance, upon personal confidence, afterwards sought to be taken advantage of, are all grounds for equitable relief in supporting and discovering an equity of redemption, as well as fraud, accident or mistake, in the formation of the instrument. Thus, in Strong vs. Stewart, 4 Johns. Ch.

Rep., 167, the deed was absolute in its terms, but the proof showed, conclusively, that the consideration was a loan, and the deed a mere security for its repayment, and it was held by the chancellor that as this was the case, equity would attach an equity of redemption to the conveyance, irrespectively of its terms.

He says : “ On the strength of the authorities, and on the proof of the loan, and of the fraud on the part of the defendant, in attempting to convert a mortgage into an absolute sale, I shall decree an existing right in the plaintiffs to redeem.” The hill in that case, was not to reform the instrument, hut to redeem, and the proof was hy parol, not to vary the deed, hut to discover the equity of redemption, if it existed, which equity might attach to the original transaction, and which was wholly independent of the terms used hy the parties in expressing their contract.

The fraud spoken of is not connected with the original transaction. It is not complained that a clause giving the right of redemption was omitted to he inserted in the deed through fraud, accident or mistake, or through ignorance, or for purposes of oppression ; hut the fraud consisted in afterwards setting up a deed as absolute, which was given as a security, and thereby attempting to defeat that right of redemption which equity would attach to the transaction.

It is the fraudulent use of the deed which equity interposes to detect and prevent, and for this purpose, parol proof is admissible, not to vary the deed, hut to maintain the equity which attaches to the transaction inherently, and which the deed or contract of the parties does not create and cannot destroy. If an equity of redemption really attaches to the transaction itself, any attempt to defeat that equity, hy setting up the deed as absolute, is fraudulent. To defeat such equity, the transaction itself must he varied, so that the equity will not attach. Maxwell vs.

Mountacute, Prac. in Chancery, 526; 2 Atk. 99, 258; 3 Atk. 389; Powell on Mort. 104; Holbridge vs. Gillespie, 2 Johns. Ch. 29. The very early case of Newcomb vs. Bonham, (2 Vern. 7) has been followed hy courts of equity. In that case, “ a man being seized of lands in fee, makes an albsolnte conveyance thereof to the defendant Bon-ham, but by another deed of the same date, the lands are made redeemable upon the payment of ¿61,000 and interest, at any time during the life of the grant- or ; and in case the lands should not be redeemed during his life-time, then he covenants that the same shall never be redeemed.

The grantor dies before the land is redeemed, and his heir at law exhibits a bill to have a redemption.

It was, in proof, that the mortgagor had. a kindness for the mortgagee, being a near relation, and' did intend to give Mm the lands after his death, and that the clause of redemption was put in only on account that the mortgagor was then a bachelor, and so might marry and have issue’; but that his full intent was, that in case he died without issue, the mortgagee should have the lands absolutely without redemption.” “The Lord Chancellor said that it was a general rule, once a mortgage, always a mortgage ; and in regard to this case, if the estate was expressly redeemable in the mortgagor’s lifetime, it must continue so afterwards, and thereupon decreed an account and redemption.” Here was a bill to redeem, contrary to the written contract of the parties.

Parol proof was admitted to show the nature of the original transaction, and the equity of redemption arising therefrom was made to overrule the stipulations of the parties. And to this time, there is a uniform current of authorities, all sustaining the principle that an equity of redemption attaches to the transaction of the parties, and is not created by their deed; and on a bill to discover and enforce that equity, parol proof is admissible, to show what the nature of the transaction really was. Nor is this in conflict with the statute of frauds, any more than with estab-listed rules of evidence.

The interest in the land sought to he established, does not arise out of, nor is it claimed by virtue of any parol agreement between the parties, but results in law from the nature of the transaction. Hence, a clear distinction is to be observed between cases of this hind, and Lathrop and Hoyt, 5 Barb. S. C., and Bander and Snyder, 7 Barb. S. C. In each of those cases, the attempt was to establish an express trust by parol evidence; so that the real points there decided, are not in conflict with the doctrine established by the current of authority before referred to. See also 2 Vernon, 520 — strongly in point.

It may be fitting that the very recent case of Russell vs. Southard, 12 Howard, 138, should stand with the ancient case of Newcomb vs. Bonham. Both are bills to redeem, and both recognize the equity of redemption as attaching to the transaction and not to the deed of the parties, and both establish the competency of parol proof upon such bills, to show the real nature of the transaction ; and the chain of authority from the one to the other is unbroken. It would seem, that this case of Russell vs.

Southard., ties the parties down to a conditional sale, so explicitly, that all equity of redemption is cut off, if such were possible to be accomplished by the terms of their contract, and it seems that if it were possible to guard against the admission of parol evidence, to control the contract, it is accomplished here, for the skill of man could not make the stipulations more clear, distinct, and definitive. “ The said Russell binds himself, his heirs, <fcc., that if the said sum and interest be not paid to the said James Southard or his assigns, at the expiration of four months from this date, that ^611 ppjg agreement stall be at an end and null and void.

The agreement of re-sale by the said James Southard to the said Russell, is conditional and without a valuable consideration, and entirely dependent on the payment on or before the expiration of four months from and after the date hereof, of the said sum of $4,929.81 1-2 and interest thereon from this date, as aforesaid ; and this agreement is to be valid and obligatory only upon the said James Southard, upon the punctual payment thereof of the sum and interest as aforesaid by the said Gilbert 0. Russell,” signed by the parties. There is no agreement on the part of Russell to pay the money.

The utmost force of language is exhausted to rivet and clinch the rights of the parties to the written contract. Yet the court say, “ It is insisted on behalf of the defendants, that this question (whether the transac.tion was a mortgage or a deed) is to be determined by inspection of the written, paper alone, oral evidence not being admissible to contradict, vary, or add to, their contents. But we have no doubt extxaneous evidence is admissible to inform the court of every material fact known to the parties when the deed and memorandum was executed.

To insist on what was really a mortgrge, as a sale, is in equity a fraud, which cannot be successfully" practised under the shelter of any written papers, however precise and complete they may appear to be.” Numerous authorities are cited in support of the doctrine, which it is unnecessary to specify here. They are all to the point, and their current is uninterrupted. Again: the court says, In respect to the written memorandum, it wras clearly intended to manifest a conditional sale. Very uncommon pains were taken to do this.

Indeed, so much anxiety is manifested on this point, as to make it apparent that the draftsman considered he had a somewhat difficult task to per-, form.

But it is not tó he forgotten, that the same language which truly describes a real sale, may also he employed to cut off the right of redemption, in case of a loan on security; that it is the duty of the court to watch vigilantly these exercises of skill, lest they should he effectual to accomplish what equity forbids, and that in doubtful cases the court leans to the conclusion, that the reality was a mortgage and not a sale” In the argument of this case, and in the opinion of the court, it seems to have been conceded, that if there had been any bond, note, or agieement, on the part of Russell to pay the money, that fact would have been conclusive of the mortgage character of the instrument.

But the question was, whether in the absence of such agreement, and consequently want of mutuality, it could be held a mortgage, and it was held that such want of agreement to pay on the part of the plaintiff, was not conclusive that it was a sale and not a mortgage. It is indeed true, that there are some cases which might seem to call in question the correctness of the doctrine established by the foregoing decisions. In Thomas vs.

McCormick, 9 Dana, 109, it was held that oral evidence was not admissible in opposition to the legal import of the deed., and the positive denial in the answer, unless a foundation for such evidence had been first laid by an allegation, and some proof of fraud or mistake in the execution of the’ conveyance, or some vice in the consideration. But the adjudged cases do not sustain this position, the evidence being- equally aqmiggpqe) whether there he a denial in the answer or not. And it is difficult to perceive how the denial in > x the answer can, in the least, affect the principle.

If the answer admit the fact, no proof is necessary ; and if the fact is not competent to he proved, it is improper to he alleged, and the defendant is not hound to answer. In 3 J. J. Marsh, Edrington vs. Harper, the same court declare “ The fact that the real transaction between the parties was a borrowing and lending, will, whenever and however it may appear, show that a deed absolute pn its face was intended as a security for money ; and whenever it can he ascertained to he a security for money, it is only a mortgage, however artfully disguised.” In Thomas vs.

McCormick, flue court do not say what allegation must he made in the hill to lay a foundation for the evidence, nor what shall constitute such a vice in the consideration as to admit the evidence. In Russell vs. Southard, speaking of the case of Thomas vs.

McCormick, the court say: “ But the inquiry still remains, what amounts to an allegation of fraud, or some vice in the consideration ? and it is the doctrine of this court, that when it is alleged and proved that a loan on security was really intended, and the defendant sets up the loan as a payment of the purchase money, and the conveyance as a sale, both fraud and vice in the consideration are sufficiently averred and proved, to require a court of equity to hold the transaction to he a'mortgage. No sounder rule of equity administration could he devised.

It commends itself alike to the conscience and judgment of every honest mind. Lathrop vs. Hoyt, and Bander vs. Snyder, in 5 and 7 Barbour's S. C. Rep., are cases where an express trust was attempted to he proved by parol. The court very properly decided tliat the statute of frauds was au insurmountable barrier. But in neither of those cases did the question of equity of redemption arise. They were purely cases of express trust, resting in parol, and are not applicable to this case, under the aspect in which we are now viewing it.

If the rights of the complainant rested upon the question of trust, a more minute examination of them would be required. Thus supported by authority, were it necessary to go beyond the deed and the bond recited in it, in order to pronounce upon the rights of these parties, we would be called upon to throw open the door to the extraneous evidence here offered, and adjudicate upon the rights of the parties, in the light of all the facts and circumstances which surrounded the parties at the time, and gave character to the transactions between them.

We will do so in this case, for it is a relief to know that the construction we have given to the conveyance, and the equities arising out of it, are in harmony with the clear and manifest intention of the parties at the time, and that the same rights and equities flow from the transaction itself, as result from our construction of their written agreement. From the evidence, it appears that the lands in question are situated near to the village of Water-town. That the government land sale was expected to come on in the month of November, A. D., 1838, but that it did not, in fact,- take place until February, A.

D., 1849. That about the year 1836, James Bo-gan “ claimed” the lands in question, and so continued to “ claim!'1 them, up to the time of the government land sale, and that he had made such improvements thereon as to entitle him to the award of the “ claim committee” of the lands. ¶0 ^oge not familial' with the terms “ claim” and “ claim committee,” used in the evidence in this case? few words may he proper in explanation. It is well known to the early settlers of the country, that its settlement and cultivation outstripped the govern ment in its survey and sale of the public lands.

For some three or four years, or more, previous to the government sales, the immigrants to, and settlers in the eastern portion of the Territory, had entered upon tracts of land, of greater or less extent, in most instances erected tenements thereon, intending to purchase the lands whenever the general government should bring them into market. Sometimes extensive and costly improvements were made, and sometimes barely sufficient to answer the requirements of the general regulations adopted by the settlers.

These regulations ymre drawn up by the settlers, and committees were appointed in different localities, and for convenient áistricts, to settle and determine all disputes in regard to the claims, which might arise.

The claims thus made, were respected by the settlers and citizens generally and held by such title only, until the public sale, when, by common consent, each claimant was permitted to bid off the land claimed by him, and no one was permitted to bid against him, or, what was more commonly the case, some one or more of their number was appointed to bid off all the lands, each tract being bid in the name of the claimant thereof.

The general and local governments have rather encouraged this kind of settlement of the public lands, and so strictly have these claims of the settlers been regarded, that immense money and property have been laid out upon them, and they have passed from one to another, by deeds of bargain and sale, without scarcely an infringement upon tlie right thus acknow- It appears, therefore, that James Rogan had such a claim to the land now in controversy, and that his claim, as well as all the lands in that precinct was "bid off, by one John Richards, who was appointed by the settlers for that purpose.

James Rogan’s claim was bid off by Richards in the name of Martin O. Walker. It further appears, from the evidence, that Walker came to the Territory some time previous to the land sale in 1839. That he then made known his business to be, to buy the lands for the settlers. He said that he had money for that purpose. He stated that he required his money doubled in four years, and seven per cent, interest per annum. He requested several persons to send him customers from among the settlers at that rate.

He declared, that he did not wish to buy unimproved lands, such as would be likely to be deserted and left on his hands. He said there was land enough unoccupied, that he could purchase, if he wished to buy land for the sake of the land, that it was the interest that he wished to make on his money, and that he was not after the land. He stated at the Finch’s that his terms were to double his money in four years, with seven per cent, interest, that he was to take the title to the lands in his own name, as security for his money and interest. These facts are testified to by two witnesses. Mr.

Dennis saw Walker at the land sale, when he informed Dennis that his business was to loan money to the settlers, or rather that he entered land for them, giving them a term of years to pay the money back. That he had a large amount of money to invest in that way. In addition to this evidence, so direct, and home hy so many witnesses, there is the. 'written memorandum marked A., . / mac*-e in. Nov. 1838, between Walker and Hogan, similar in substance to the agreement actually made in February following.

The fact that he bought land for other settlers on the same terms, the fact that he does not appear to have entered any government lands whatever, except such as were more or less improved, and all claimed by settlers.

The fact that he said that he did not wish -to buy for the sake of the land, but that it was the interest of the money he desired to secure, together with the circumstance of the recitation of the bond in his deed, the amount in its condition being just double the purchase money, the amount to be paid in interest corresponding with the terms of the agreement alleged, and the four years terms of payment; all these facts and circumstances, exhibit that allegation,, in the defendant’s answer, “ that he did purchase the said lands with the intention of acquiring and holding them until he could sell the said lands at a reasonable profit,” so palpably, and so shockingly untrue as to leave little more to be said of any part of the answer.

From this evidence, it seems to me, that no one can doubt, as to the real nature of the original transaction. That Walker’s intention was to invest his money, by advancing to or for, it matters not which, the settlers upon improved public lands, money to purchase their respective claims, at a rate of interest which should double the principal sum in four years, with seven per cent per annum, in addition, and take the title to the lands in his own name, as security, there can be no manner of doubt. He distinctly declares to Finch that that is his object.

Fie repudiates the idea of buying land for the sake of the land, or for the profit he might make by its future enhanced value, but it was the repayment of his money and interest he wanted. He discards unsettled, unimproved lands, because they might be left on his hands. He desired others to send him customers, with whom he might agree to advance the purchase money on his proposed terms. If, as he says in his answer, he attended the land sale at Milwaukee, to purchase lands merely, why seek for customers ? The government was all the customer necessary to such end.

But it is idle to reason in support of a position so apparent from every feature and circumstance connected with the whole series of transactions. But it is said that James Bogan had no interest or estate in the land, prior to its sale; that he had nothing to convey to Walker, and hence he could not stand in the relation of a mortgagor. Perhaps not. Technically speaking, certainly not. But is it true, that James Bogan had no interest in the land prior to government sale ?

Are we prepared to say that the possession, and improvements, of advance pioneer settlers on the public lands, shall be altogether alien to our jurisdiction ? So long as these claims are encouraged by the general government, and so long as settlement and occupation continues to outstrip survey and sale, it would seem that the good order and peace of society requires, that the arm of the law be not altogether withdrawn from their protection. Be that as it may, Walker in this case did recognize, in February, 1839, and in November, 1838, some interest of Bogan in these tracts of lands.

He recognized also the “ claims ” of other settlers. His proposition was' to buy their lands for them, “if he were permitted” to do so. How came Walker to Ibe permitted to dray these claims ? Or, rather, (for he did not buy them) how came they to be bid off in the name of Walker ? John Richards was appointed by the settlers, of whom Bogan was one, to bid off all the lands in that precinct. Is it to be believed, that that agent of the settlers would have bid off these lands in the name of Martin O. Walker, without some agreement by which the consent of Bogan was obtained?

Was not such consent absolutely necessary to Walker’s acquisition of the title ? If the interest of Bogan was not, as indeed it was not, a legal interest, yet it was such as Walker desired to render available for his purposes, such as, under the circumstances was necessary to him, such as he did recognize, obtain and profit by, and such as entered into and became an important element in the whole transaction, and such as constitutes an important element in the equities arising out of the transaction.

If Walker had set up in his answer, an illegal and unjust combination, by which he was prevented from free bidding at the sale, the case might have been different.

But it whs that very community of interest which Walker sought to render available-to his own purposes, It was the claims of the settlers which he sought out, as an investment affording ample security and a large return by way of interest or usury for the money advanced for them by him, and, as if to mark indelibly the character of the transaction, as a monied, one, as an advance, or loan of money for a given purpose, the bond for the repayment of the money is made the initiatory contract, and the consideration of the deed. ■ There is still another view of this case which I am compelled, by the course of the argument, to take.

It is objected to the matters recited in the bill, and the evidence offered to sustain them, that it “ is an attempt to establish a resulting trust by parol, contrary to the statutes of the Territory in force at the time.” Statutes of Territory, 1839, 162, § 6 ; 164, § 2. The Revised Statutes of the Territory did not prohibit resulting trusts, or trusts by implication of law, but did prohibit the creating of any trusts in lands or real estate, except by writing, signed by the parties or their lawful agents, or by operation of law.

Express trusts, or such as are created by agreement of the parties, must be in writing, and parol proof is inadmissible to establish them ; but trusts which result from operation of law do not require to be in writing, and parol proof is competent to establish the facts and circumstances out of which they arise. The case of Getman vs. Getman, 1 Barb. Ch. Rep. 499, is clearly a case of express trust, attempted to be proved by parol, and the court very properly held to the statute of frauds, and dismissed the bill.

When real estate is purchased with the money of one person, and the title is taken in the name of another, there is a resulting trust in favor of him whose money is paid, and parol proof is competent to show these facts. Authorities need not be cited to sustain this position. The question is fully discussed in Boyd vs. McLean, 1 Johns. Ch. Rep. 582, and authorities are there numerously cited and ably discussed, and the principje fully settled. But the case of Boyd vs.

McLean establishes another doctrine in relation to trusts which cannot be disregarded, considering this case in the view in -which counsel have presented it. # that case, the title to the premises was not m the plaintiffs. They alleged that they had obtained a loan of the defendant to pay the contract price for the land which had become dne ; that the land was purchased with the money loaned, the title taken in the name of the defendant, the money, with interest, to be repaid in four years.

The loan was explicitly denied by the answer, the want of title or interest of the plaintiff in the lands set up, and the statute'of frauds insisted upon. Here was no bond given for repayment of the money, no written conveyance or agreement to convey by the defendants ; yet the Chancellor admitted the parol proof to establish the fact of the loan, and held that there was a resulting trust in favor of the plaintiffs.

From this it seems, that if A. borrows money of B. to purchase land, and land is purchased with the money, and the title taken in the name of B. as security for the payment of the money within a given time, there is a resulting trust in B. in favor of A., and that parol proof is admissible to show the fact of the loan. When the money is borrowed by A. it then becomes his, and its investment in lands, it seems, may be followed. How, then, in view of these authorities, stands the present case ? Bogan was in possession of the land by a claim which Walker desired to render available to his own purposes.

The time for payment for the land had arrived. Bogan applied to Walker for money to buy the land. Walker did not want the land for the sake of the land, but wanted to invest his money so as to bring him in an annual interest of seven per cent, and, at the end of four years, double the principal. For some reason, which it is easy to •i _ . _ _ _ ^ perceive, he takes Kogan s bond for double the amount necessary to purchase the land, payable in four years, with annual interest at three and a half per cent.

By consent of both parties, the land is bid off by the agent of the settlers in the name of Walker ; the duplicate taken in his name ; and thereupon, in consideration of the bond, he deeds the land in fee to Bogan, conditioned that the estate conveyed should cease and determine on failure of Kogan to perform the conditions of his bond. Does any one believe that, but for the consent of Kogan, Walker would have purchased the land ? Does any one believe, but for the claim of Kogan, or some one else, to it, he would have desired to purchase it ?

Does any one believe that, but for the bond of Kogan, either delivered or promised by Kogan, Walker would have invested his money in the land? Would Kogan have given his bond for the money, but for its application to the purchase of the land ? Is not the whole transaction clear, that by a common, mutual arrangement, Walker advanced the money to buy the land, took Kogan’s bond for its repayment, and held the land as security ? If it be not so, I am wholly unable to give character to human action, or to discern human motive.

If it be so, then the money was the money of Kogan, and not of Walker, (and no matter whether the bond was actually made or not, at the time of the loan, advance, or purchase ;) for Walker could not claim title to both the bond, and the money for which it was given, and the case falls within the doctrine of resulting trusts. I recollect that it was said that the bill does not set out the loan according to the proof, and that the sum of the bond is greater than the amount of money paid for the land ; and hence it could not have been *L ' *01> l°an °f fhe purchase money.

But it is quite evident how and why the amount of the bond became double the actual sum loaned, and the interest stated at three and a half per cent. And it is sufficient answer to the objection to say, that a mere trick or device to avoid the consequences of usury, must not be permitted to prevail as a technical objection against substantial equity. I think the bill sufficiently states the loan, and, indeed, the whole transaction, and that the proof is in conformity with the allegations of the bill.

And here let me remark that this case differs in its essential characteristics from those cited from Barbour, inasmuch that the trust here established is a resulting-trust, arising by operation of law, and in those the attempt was to set up an express trust, arising from the agreement of the parties resting altogether in pa-rol. In neither of those cases, was a bond or obligation taken for the money, nor was there any written conveyance or contract for a conveyance to the complainant. See the cases of Hoyt & Lathrop vs. Bundel & Snyder, before cited.

But although under the proofs this case might be sustained on the ground of a resulting trust, I prefer to place it where the parties themselves placed it by their written agreements, and the equity of redemption arising out of the transaction which gave rise to that equity which we have found to be, paramount to their contracts and agreements. Though an equity of redemption did arise here out of the transactions of the parties, similar in kind to that in case of a common mortgage, yet it does not follow that such equity is the same in extent and du- . . *L J , ration.

Here is the chief difficulty I have found in the case. Though equity will not hold the party to payment at the very day and hour, yet how long may payment, upon contracts of this hind he delayed, without being extinguished by lapse of time, or the laches of the party % In the case of a common mortgage, the equity of redemption continues, as a general rule twenty years, unless sooner foreclosed.

In an early case, a bill to redeem was dismissed as stale, 17 years having elapsed, and no claim to any right to redemption having been set up or intimated, though the parties had been in a situation to assert their right all the while. We might find analogies perhaps, in cases of bills brought for specific performance, but in this case it is not deemed necessary to do so. The rule in equity is to relieve against conditions subsequent, whenever compensation can be made. It is a general rule in equity that interest is a compensation, when the payment of money only is the condition to be performed.

But though this latter rule does not so perfectly accord with our notions of equal and exact justice, we are relieved here, by the motive of the defendant, apparent as well from the written instruments as from other proof in the case, which indubitably was, to secure to himself the repayment of his money and interest ’at a rate of more than 25 per cent, per annum.

Such he declared to be his object at or about the time, stating that he dicl not want to purchase land for the sake of the lands, but it was his money and interest only that he wanted to secure, and wished to buy no lands, but such as were improved, and not likely to be deserted and left on his bands. If, therefore, his money is repaid to him, and-interest, and he is relieved from having the land deserted and left upon his hands, full compensation is given him according to his own notions of compensation at the time of the transaction, and full equity will be administered.

Besides, the complainant alleges, that since the bond became due, and the failure of James Bogan to pay it, he has been ready and willing to pay so much as may be equitably chargeable upon that portion of the lands claimed by him, and the defendant makes no complaint on the ground of lapse of time, but insists upon a complete forfeiture of the estate, because of the want of strict compliance with the condition of the deed. The bond became due in February, 1843. Walker instituted an action of ejectment to recover possession in 1847, and in 1849 this bill was filed.

Under all the circumstances of the case, and in view of the rights claimed and attempted to be enforced, I am of the opinion that the bill was filed in time, and that the equity of redemption did not cease either by lapse of time or the laches of the parties. The question of usury is not raised in the case, and therefore nothing is said about it. I have commented but little upon the answer of the defendant, because, in all material respects, it is overborne by the proof, and because it is unpleasant to remark upon it as perhaps it deserves.

I should not discharge my whole duty in this case,, did I fail to'acknowledge the aid I have had from the surpassing ability and research which have been "brought to its discussion by the learned counsel employed in the argument. The complainant is entitled to the relief sought by his bill, and it will be decreed accordingly.