#### Tully Jackson *v. John*H. Blount *et al.*

*A*mortgagee who purchases the mortgaged premises at sheriff’s sale, upon a parol agreement to hold them as a security, is, in equity, a mere in-cumbrancer, and parol evidence of the agreement may be received, notwithstanding the sheriff’s deed be absolute.

Upon the pleadings and proofs in this case, it appeared that on the 18th day of April, 1827, the plaintiff, by an absolute deed of bargain and sale, in which the sum of one hundred and ninety-six dollars was recited as a consideration paid to him by *James Stanton,*convoyed to the said *Stanton*in fee the tract of land on which he resided, and that at the same time *Stanton*executed to the plaintiff a written declaration, setting forth that the object of the conveyance ivas to secure the re-payment of that sum, with interest,and promising on the part of *Stanton*to recon-vey the land whenever such re-payment should take place. The deed was shortly thereafter registered ; hut the de-feazance had never been registered. The tract of land ivas proved to have been worth about six hundred dollars, and the plaintiff retained the possession of the whole of it until the year 1830, and of a part of it until this time. On or about the 10th of July, 1829, a sale was made of this land by the sheriff, upon an execution against the plaintiff, at the instance of a creditorj and at that sale, *Stanton*became the purchaser at the price of seventy-five dollars, ga-ve his note to the creditor in discharge of the judgment, and took a deed for the land from the sheriff, in which it is described as the same land heretofore conveyed by *Jackson*to *Stanton.*It was in proof also, that on the day of the sheriff’s sale, *Stanton*iuformed the execution creditor that he had a lien on the land, but had no objection to a sale, provided ho could become the purchaser, and hold his title under such sale, as he did that under his deed, as a security for his advances *;*that thereupon they proceeded together to the place of sale, where *Stanton*.bought, the plaintiff not being present and that on the land being bid off, he quieted the plaintiff’s wife, who seemed uneasy, by declaring that all he Svanted was to secure the re-payment of what *556he had advanced,or might advance. There was a satisfactory proof also, that after this sale, *Stanton*and *Jackson*recognised each other as still standing in the relation of creditor and debtor, and the sheriff’s convey-anee,and *Jackson’s*conveyance as securities for the payment of the debt. Messages were sent to *Jackson*to liquidate and pay off the debt. An arrangement was made by him for letting out the land, to take up the notes given by *Stanton*at the Sheriff’s sale, and on *Stanton*being apprised of it, he told the plaintiff that he could afford to pay as good a rent for the land as any body, that he would be satisfied with an arrangement which would pay off all his demands, but he did not approve of one which was to discharge his last lien only, for lie looked upon that as his best title. In the next year, *(1830,)Stanton*occupied accordingly a part of the land, *Jackson*retaining possession of the residence_ Before the close of that year *Stanton*died. The guardian of his infant heirs at law then instituted an ejectment in their names, and prosecuted it to judgment against *Jackson,*who filed this bill to enjoin their further proceedings, and to redeem the mortgaged premises.

*Kinney*for the plaintiff.

*Mendenhall*for the defendants.

Gaston, Judge.

After stating the facts as above, proceeded: — Upon these facts it is manifest that the relation of mortgagor, and mortgagee did originally exist between the plaintiff and the intestate, the ancestor of the defendants. It is almost equally plain that whatever might he the form of the proceedings at the sheriff’s sale, or the legal effect of the sheriff’s deed, the mortgagor and mortgagee intended by this latter transaction, but the removal of an incumbrance which for some cause or other was supposed to affect, and which by reason of the non-registration of the defeazance, did affect the mortgaged property, and it would follow from the acknowledged principles of a court of equity, as' well as from the plain intent of the parties, that the re*557lation of mortgagor ami mortgagee, continued after the sale, and that the sheriff’s deed was but a further security to cover the further advances made. Objections however have been made to the receiving of the proofs. It was insisted that as the Sheriff’s deed was absolute, the admission of these proofs would be not only a violation of the rule which forbids a *written instrument to be con*tradicted, varied or explained by parol, but is an attempt to set up a'parol contract in relation to lands,in contradiction to the act of 1819, entitled an act to make void parol contracts respecting lands and slaves. Neither of these objections appear to us well founded. With respect to the former, it may be remarked in the first place,that the testimony is not offered to explain or vary the contract between the sheriff and the purchaser at execution sale, who alone are the parties to the conveyance of the sheriff, and secondly that it has been long since settled (see case of *Streator*v. *Jones,*3 *Hawks,*423) that in equity, facts and circumstances *dehors an*absolute deed — such as inadequacy of the alleged price, possession remaining with the supposed vendor, and the supposed vendee claiming still to continue a creditor for the money advanced — may be received in evidence, to shew that the purpose of the conveyance was to give a pledge or security for the repayment of the money.— Nor is it apprehended, that this rule of equity is at all affected by the act of 1819. But at all events, in this case, the original right of the plaintiff to redeem is evidenced by the written agreement of *Stanton, and the*facts connected with tiie sheriff’s sale are properly examinable in order to ascertain whether, in that transaction, *Stanton*acted in his individual, or in his fiduciary character . If in the latter, neither he nor liis heirs can set it up to the injury of the plaintiff.

Tacts and circumstances *de hors*an absolute deed may,in equity, be proved, to show that it was executed merely as a security.

The case of *Streator*v. *Jones*(3 Ha-whs, 433) approved.

The court is of opinion that the plaintiff is entitled *to*redeem, and therefore doth direct the usual accounts to be taken.

Pee Cukiam. — Direct an account.