(B) What shall be deemed a redeemable Mortgage. defeasance inserted. If then, as was the case, B, on non-payment of the money within a year, stood as a trustee for A, subject to the defeasance, his (B's) vendee coming in with notice of that trust would stand in his place, and must be considered as taking the conveyance liable, in equity, to the performance of the trust; and the fine made no difference, for it only operated to strengthen the estate and free it from the dower of the wife, but it confirmed it in statu quo, and did not discharge it from the equity of redemption to which it was before liable. Croft v. Powell, Comyns, 603. {A sale under a power to sell on default of payment contained in a mortgage-deed is a species of foreclosure, and under it a mortgagee may himself make a bona fide purchase. And after a lapse of sixteen years from the time of such sale, known to the mortgagor or his heir, who during that period has remained passive, a redemption will not be allowed. 1 Cain. Er. 1, Bergen v. Bennett.} It seems questionable whether a power of redemption can be set up upon a subsequent agreement, made after an absolute conveyance executed; for if it be a mortgage, it must be so ab initio on the original agreement. And, therefore, where one having the reversion expectant upon the determination of a lease for life, in an estate worth 1000l. per annum, conveyed it in fee to W R, in consideration of 1000l. and no more, and the tenant for life died, a pretence was set up that this conveyance was no more than a mortgage, because W R had declared that he did not know how long he should enjoy the estate, and that he would take his money again with interest: sed dubitatur per curiam; and one reason was, because inatter subsequent will not make it a mortgage, if it was not so upon the original agreement. Vide Coplestone v. Boxwill, I Chan. Ca. 1; 3 Salk. 241. In determining between an absolute sale and a mortgage, the court will take the intention of the parties, from a view of all the circumstances; and when an absolute sale was intended as a pledge, the court will relieve against the sale and suffer a redemption. May v. Eastin, 2 Porter, 414. And if the defeasance be made at a subsequent day, it will relate back to the date of the deed. Crane v. Bonnell, 1 Green's Ch. 264. See Wright v. Bates, 13 Verm. 341.7 But although courts of equity will not suffer the mortgagee to clog the redemption with any stipulation for a purchase, at a specific price agreed upon at the time of the loan, because the admission of such a practice would furnish an inlet to great fraud and imposition upon the mortgagor: yet, a mere agreement that, in case of sale, an opportunity of pre-emption should be given to the mortgagee, would, it seems, be decreed; but it must be claimed at a reasonable time: for, where A, the plaintiff's brother, died, having previously mortgaged lands to B, by deed, containing covenants to re-convey upon six months' notice of payment of the principal and interest, and that in case the estate should be sold, B should have the pre-emption; B got the counterpart into his hands after A's death; then the plaintiff gave him six months' notice that he would pay off the mortgage, which he refused to accept; upon which the plaintiff exhibited his bill for a re-conveyance of the estate, having entered into articles for the sale of it; B in his answer insisted on the covenant for pre-emption; but it appearing that neither the plaintiff nor purchaser knew any thing of this covenant, the counterpart of the deed having been in B's custody; that the plaintiff, on application for it, had been denied it, the mortgagee insisting only on payment, alleging the security was too narrow for the money lent, and threatening to foreclose, (B) What shall be deemed a redeemable Mortgage. never having mentioned his claim to pre-emption until after the estate was sold; it was said, he ought not to set it up to the prejudice of the purchaser, having had time to claim it, if he had pleased, before the estate was sold; and it was decreed accordingly. Orby v. Trigg, 2 Eq. Ca. Abr. 599, 24; S. C. 9 Mod. Ca. in Law and Eq. 2. A distinction hath been made by the Court of Chancery between contracts originally founded upon lending and borrowing money, with an agreement for a purchase in a certain event, and cases where, after a mortgage, a new agreement hath been entered into and executed by the parties for an absolute purchase, although there be a subsequent declaration that the mortgagor may have his estate upon payment of interest, principal, and costs; or, where a release of the equity of redemption is given with a collateral agreement to re-convey, upon re-payment of the purchase-money; and, in the latter cases, it hath been determined that no re-purchase shall be had, unless upon strict performance of the conditions stipulated. Thus, A, a joint-tenant with B, her sister, made an absolute conveyance to C in fee for 104/., which was admitted to be intended only as a mortgage; some time after, in 1708, those deeds were cancelled, and then A, in consideration of 1847., (including the 104/. paid by C,) conveyed the estate ut suprà, but with a farther covenant not to agree to any partition without C's consent. B was in possession till 1710, when C ejecting her out of her moiety, enjoyed it quietly till 1726, at which time A brought a bill for redemption, to which C pleaded himself an absolute purchaser. The receipts given for the money mentioned it to be purchase-money. In 1710, there was an agreement that A might have the estate again, if desired, on payment of principal, interest, and charges. It was first heard before the Master of the Rolls, who dismissed the bill. Afterwards it came on before Lord Chancellor Talbot, who observed the case was very dark; the first deed was admitted to be mortgage, the second was made in the same manner, excepting the covenant respecting the partition, which was the darkest part of the case; for to suppose that it was an absolute conveyance, and to take a covenant from one who had nothing to do with the estate, made both the covenant and parties vague and ridicu lous; but that it would be equally so, if the deed was supposed to be an actual conveyance, so that it was of no great weight, and ought to be laid out of the question; that he was inclined, upon the whole, to think the conveyance in 1708 was at first an absolute conveyance. The agreement, in 1710, for the repurchase, showed it was not redeemable at first; the acquiescence of sixteen years, upon C's possession, was a strong evidence of it; and his lordship, upon the circumstances of the case, affirmed his honour's decree. Barrel v. Sabine, 1 Vern. 268; Cotterel v. Purchase, Ca. temp. Talb. 61. So, lands in Wales were mortgaged for 4007., and afterwards, neither principal nor interest being paid at the time limited, the mortgagee brought an ejectment, got possession of the premises, and then obtained a release of the equity of redemption from the mortgagor, upon payment of 3501. more; a note was given at the time of executing the release, that the releasee, on payment of the 7501. and all charges of repairs within a year by the releasor, should sell and convey to him the premises. Payment having been neglected for sixteen years, redemption was not allowed, the note being considered as an original agreement between the parties to sell and convey the premises (B) What shall be deemed a redeemable Mortgage. upon the terms therein mentioned, but not that the releasor should be at liberty to redeem the same. Endsworth v. Griffith, 15 Vin. Abr. 467, pl. 18; 2 Eq. Ca. Abr. 595, pl. 6, 1 Brown's Parl. Ca. 149.] ||But even where the equity of redemption is actually released to the mortgagee, the court will admit evidence that the release was made on a secret trust for the mortgagor's benefit, or that it was not intended to be an absolute sale. Vernon, a planter, being indebted to Bethel, his consignee, to a large amount on the mortgage of an Antigua estate, the former, in 1738, executed an absolute release to the latter of the equity of redemption, in consideration of five guineas, and Bethel remained in possession and receipt of the rents and profits. More than twenty years afterwards Vernon filed a bill for an account and redemption; and it appearing that Bethel had repeatedly admitted, by letter and by parol, to Vernon and other parties, that he was bound in honour and conscience, and by a voluntary promise, to restore the estate on payment of his debt, and that he stated his original application to be let into possession to be made partly in order "to save something for Vernon's family," the lord chancellor decreed an account and redemption. Morley v. Elways, 1 Chan. Ca. 107; Vernon v. Bethel, 2 Eden, 110.|| But if a man borrows money of his brother, and agrees to make him a mortgage, and that if he has no issue male his brother shall have the land; such an agreement, made out by proof, will be decreed in equity. Vern. 193, per North, L. K. A, in consideration of 1000l., made an absolute conveyance to B of the reversion of certain lands after two lives, which, at that time, were worth little more; and by another deed, of the same date, the lands were made redeemable any time during the life of the grantor only, on payment of 1000l. and interest; A died, not having paid the money; and it was held by my Lord Nottingham, that his heir might redeem, notwithstanding this restrictive clause; and that it was a rule, once a mortgage and always a mortgage, and that B might have compelled A to redeem in his lifetime, or have foreclosed him. But, on a re-hearing, Lord Keeper North reversed the decree on the circumstances of this case; for it appeared by proof, that A had a kindness for B, and that he had married his kinswoman, which made it in the nature of a marriage-settlement: he likewise held, that B could not have compelled A to redeem during his life, which made it the more strong. Vern. 7, 214, 232, Newcomb v. Bonham; 2 Vent. 364, S. C., where it is said, that Lord North's decree was affirmed in the House of Lords. A deed of land and a bond to the grantee to convey it to the grantor, bearing different dates, but executed and delivered at the same time, constitute a mortgage. Newhall v. Burt, 7 Pick. 157. [Another exception hath been made to this general rule, namely, where a conditional conveyance is made, to be void upon payment of a sum certain, within a stipulated time, in contemplation of a settlement or family provision. Thus, A, seized of a copyhold in fee, surrendered it, upon his marriage, to the use of himself and his wife in special tail, remainder to her in fee, upon condition that if he paid 50l. at a day certain to the daughter that the wife had, then the whole surrender would be void. The day elapsed, the 50%. not paid, and the husband died without issue. On a bill to redeem, brought by his heir against a purchaser from the wife, the defendant pleaded that he was a purchaser for a valuable consideration without notice; and it was resolved, that this was not originally designed for a mortgage, but that the VOL. VII.-6 D2 (B) What shall be deemed a redeemable Mortgage. party, by settling it thus, had left it in his election, either to perform the condition by paying the money, or to let the settlement stand; he had chosen the latter, and the plea was allowed. King v. Bromley, 2 Eq. Ca. Abr. 595, 598. One, upon his marriage, covenanted that his wife should be paid 10007. within two years after his death, and, for performance thereof, entered into a statute; but, prior to the covenant and statute, he had mortgaged part of the lands for 500l. for certain years. Afterwards he devised these lands to his wife and his heirs, if the 1000l. were not paid to her, according to the marriage-covenant, she paying off the said 5007. He died, leaving his wife executrix, to whose hands assets came; the 1000l. not being paid to the wife, she paid off the 500l. and had the mortgage-lands assigned to her. She then conveyed over the mortgage-lands in fee by fine and deed. The question was, Whether the heir of the covenantor could redeem, paying the 1000l. and the 500l. with interest upon discount of the profits? And the Lord Chief Baron was of opinion he could not; for the devise to the wife was absolute, if the 1000l. were not paid at the time appointed. Sir Nich. Woolston v. Aston, Hardr. 511. A distinction hath been likewise taken between mortgages and defeasible purchases, subject to re-purchases within a time limited, where the interest is taken by way of rent-charge; for, in the latter cases, the stipulations made between the parties must be strictly adhered to, or the estate of the grantee will become absolute. Thus IS granted a rent-charge in fee of 481. a year to B, upon condition, that if I S should, at any time, give notice to pay in the consideration-money (being 8001.) by instalments, viz.: 1007. at the end of every six months; and should, pursuant to such notice, pay the same and interest at any time during his lifetime, then the grant to be void. There was no covenant for I S to pay the money, and the rent-charge was much less than what the interest came to (interest being then 8 per cent.); B had conveyed it over after I S's death to a purchaser, with collateral security for quiet enjoyment, and the purchaser had afterwards made a marriage settlement upon it. The question was, Whether it was redeemable after sixty. years? And it was decreed, by Lord Cooper, that it was not. His lordship observed, it was material that at the time of making the mortgage, interest was at 8 per cent., the rent-charge, therefore, was much less than the interest of the money; consequently, the payment of the rent-charge could not be taken as the payment of the interest; that several circumstances occurred in this case, which, though each of them singly might not be of force to bar the redemption, yet, joined together, were strong enough to prevail over it; that the mortgagee seemed to have allowed a consideration for purchasing the equity of redemption after the death of the mortgagor; first, by taking the rent of 481. per annum; secondly, by agreeing to have his money by instalments; thirdly, by leaving it only at the election of the mortgagor, whether he would redeem or not; that there could be no reason given why such a contingent right of redemption might not, upon fair and equitable terms, be purchased; that length of time, where so great as in the present case, was a good bar of redemption of a rent-charge, as well as of land; and that the mortgagor was not bound to pay the money by any covenant. Floyer v. Levington, 1 P. Wms. 268. The reporter observes upon the last case, that it was thought length of (B) What shall be deemed a redeemable Mortgage. time was the principal objection to the redemption; but in the case of Mellor v. Lees,(a) which came on before Lord Chancellor Hardwicke, upon an appeal from the Rolls, the doctrine that such limited agreements for redemption, or rather re-purchase, were legal, was confirmed. In this case a mortgage was made of an estate by the plaintiff's grandfather, Thomas Mellor, in 1689, to John and James Whitehead; the Whiteheads afterwards, on the 5th of June, 1689, mortgaged the same estate to Cartwright and Haywood, and their heirs, for securing 2001., to which Thomas and his son, John Mellor, were parties; and Cartwright and Haywood, in order to secure themselves the interest, made a lease to the plaintiff's father, and to his assigns, dated the 12th of June, 1689, for five thousand years, at the rate of 121. a year for the three first years, and 10l. a year for the remainder of the term; and if, in the space of three years, the 200l. was paid with interest, then the premises were to be re-conveyed. Receipts had been given sometimes for interest, and sometimes for a rent-charge; the last receipt was in 1730. The 2007. lent was money left under one Sutton's will in 1687, and directed to be laid out in the purchase of lands in fee, in Lancashire or Cheshire; the rents to be applied towards clothing twenty-four aged and needy housekeepers. The estate, at the time of the mortgage, was worth 5007. only, but was now valued at 9001. The plaintiff, on the 20th of January, 1738, had given notice that he would pay in the money; but the defendant, a new trustee of the charity, had refused to take it, insisting that it was an absolute purchase. And it was so decreed by Fortescue, Master of the Rolls, which decree was upon appeal to the chancellor confirmed, his lordship saying, that the bill was properly dismissed at the Rolls, not so much upon general rules, as upon the particular circumstances of the case, and the similitude of it to the case of Floyer v. Levington. (a) 2 Atk. 494. It seems, from the determination in the case of Tasburgh and M'Namara v. Sir Robert Echlin et al., that such a contract respecting lands, limiting the payment of the money advanced and interest thereupon to a particular period, would be considered in the nature of a conditional purchase, and no redemption allowed thereof after the time stipulated. See Verner v. Winstanley, Butler, Co. Lit. 205 a, note, Tasburgh v. Echlin et al., 4 Brown's Parl. Ca. 142. 2 Scho. & Lef. 393; Gifford v. Hort, 1 Scho. & Lef. 107; s. 2; Sugden's V. & P. 223, (5th ed.) Mr. Coote, p. 30, thinks the principal case was determined on circumstances too special to be considered an authority for the general rule deduced from it in the text; sed vide Powell, 133 a, (6th ed.)|| This case came before the House of Lords upon an appeal from a decree made by the Lord Chancellor of Ireland, in the year 1732, on the following circumstances, viz.: King James I., by his letters-patent under the great seal, dated the 17th of June, 1608, granted divers lands to John King and John Bingley, and their assigns, for 116 years, to commence from the 18th of May then last past, at a certain yearly rent. The residue of this term, by deed dated the 26th of May, 1677, became vested in John Tasburgh, father of Henry Tasburgh, the appellant in the cause. King Charles I., by his letters-patent, dated the 25th of March, 1647, granted the same premises. to Sir Maurice Eustace and his heirs at a like rent, but without reciting or taking any notice of the term of 116 years. Sir Maurice, by his will dated the 20th of June, 1665, devised the premises, inter alia, to his nephew Sir John Eustace in fee; who by virtue thereof, or as heir at law of the testator, became entitled to the reversion and inheritance of the premises, expectant |