The opinion of the court was delivered,
by Agnew, J.
Upon a thorough examination of this case, a single question is presented, Whether on all the evidence the court was justified in submitting the facts to the jury ? Without laying down any rule, it may be conceded, for the purpose of the argument, that a deed absolute on its face cannot be converted into a mortgage, except upon clear and satisfactory evidence of its character as a security for the repayment of money; that the plaintiff in an ejectment to recover against the deed by converting it into a mortgage stands in the position of plaintiff in a bill in equity to redeem; and that the testimony of himself and the defendant have the same effect as the averments contained in the bill and answer: and, finally, that it is the duty of the judge, as it is that of a chancellor, to determine the sufficiency of the evidence, and, if it be insufficient, to refuse to submit the case to the jury. Carrying these views into the examination, we have not been able to say that the court erred in submitting the evidence to the jury to find the fact whether the deed was absolute or conditional. It is a conceded fact, to. begin with, that in the year 1840 David Bradford, the plaintiff, was largely in debt; that his property was advertised at sheriff’s sale, and that he had been unable to raise means to pay the executions pressing him. According to Bradford’s testimony, George W. Odenbaugh, his half-brother, came to the meadow where he was mowing, and proposed an arrangement to relieve him. He recounts minutely the circumstances, giving time, place, the persons present, the reasons given by Odenbaugh and the proposition, which was, that if Bradford would make him a deed for the place he would pay off the judgments, and whenever Bradford paid him back the money and interest he should have the land back'. Two of the persons present were Christian Odenbaugh, a brother of George, and Jacob Clifford. Bradford states that Christian said to his brother, “ Now, George, if Dave makes you a deed you will not take any advantage of him, will you ?” “ No,” said George, “ I won’t. God forbid that I should.” David Bradford then details the facts as to going with his wife to town the next day and making the deed to Odenbaugh. On the other, hand, Odenbaugh denies the statement of Bradford in decided terms. He says Betsy Kent (his sister) first spoke to him of relieving Bradford, and he suggested that the Bradfords should do it. She returned and told him Bradford had failed to get the money. Bradford, he says, came the next day, and this was the first time he saw him on the subject. He then states the bargain for the purchase of the land at $600; his consulting Mr. Cleavinger, a lawyer; Bradford’s coming over the following day, and the finishing of .the business. Among other things, he stated that he had ho private conversation with Mrs. Bradford; that she was examined apart by the magis[102]*102trate; that he never said to any one that the deed was only a security for money — never said so in his life, and he gives as a reason for not entering satisfaction on the judgments paid by him, that he was advised not to do so until he got the possession. Admitting, now, that the denial of Odenbaugh of the leading and material facts testified by Bradford sends us to an examination of the other evidence, how does the case stand? And first we may notice the contradiction of Odenbaugh’s statement by other witnesses. He is positively contradicted by Christian Odenbaugh and Jacob Clifford as to the first meeting with Bradford in relation to the offer of relief. He asserts Bradford came first to see him the day before the conveyance. They corroborate Bradford that Odenbaugh came to the meadow, and had there a conversation about the place and the deed. Christian Odenbaugh repeats in substance his own expression stated by Bradford, to wit, “ George, if Dave makes you a deed, you will not take any advantage of him?” and George’s reply, “No.” Odenbaugh is also contradicted by Mrs. Bradford as to their private interview in the entry, and her separate examination by the justice. He is contradicted in regard to the deed. He says he never said to any one that the deed was only a security. Mordecai Barnes, James Porter and Jesse Hook, distinctly say he did; and in effect the testimony of William Kent and Betsy Kent is the same thing. The reliability of Odenbaugh’s statement is therefore materially weakened by these contradictions. On the other hand, David Bradford’s testimony is corroborated in all its material facts. He is first directly corroborated as to the meeting in the meadow, and the conditional character of the deed to be made, by Christian Odenbaugh and Jacob Clifford, who were present. He is directly corroborated again by his wife as to the nature of the conveyance at the time it was executed and acknowledged. She refused to sign the deed. George took her out into the entry and explained it; said it was only to keep strangers from getting the land; as quick as Dave paid him the money with interest he was to have the land back.
Bradford is further corroborated by. Odenbaugh’s subsequent admissions to others on the very point of the case. Mordecai Barnes heard him say, in 1842 or 1848, that he was to release the land on condition that Bradford would pay back the money; but that Bradford was so worthless he thought he never would do it. James Porter testified that some time after Odenbaugh bought the place, he asked him if he thought he had a good title to the property; and he replied that he thought he had, under the circumstances, since Bradford was a very worthless man, and he thought he could not raise the money to pay him back. He said if Bradford raised the money he should have to give up the land! Jesse Hook says, that about thirty years ago George Odenbaugh [103]*103told him he had got the farm for a certain sum of money, and Bradford was to have it back when he could return him or pay him back the money. This testimony is again strengthened by the .testimony of John Porter, William.Kent and Betsy Kent; for though these witnesses do not testify on the very point as do the others, the effect of their testimony is the same.
There are facts and circumstances which tend to support the case of the plaintiff. When Odenbaugh paid off the judgments against Bradford, instead of having them satisfied at once as encumbrances against the land purchased, he took assignments and never entered satisfaction thereon until after the result of the ejectment against Bradford in 1842. His explanation is, that he had legal advice not to satisfy them until he got the possession. But if he had an absolute deed, what better off did the assignment of the judgments make him ? They could not give possession, and only clouded his title. But if his. deed was a mortgage only, the ownership of the judgments would enable him to enforce payment, and collect his money. Nor did he need the assignments to show payment on his bond, for by the very terms of his bond he was to have credit on it for payment of the judgments.
The ground on which Bradford failed in the ejectment of 1841, as testified to by two intelligent gentlemen present, and one participating in the trial, is also corroborative. In that' ejectment Odenbaugh, who was plaintiff then, claimed under the deed, and Bradford set up by way of defence that it was a mortgage; but not having tendered the money, the court held that this alone would not prevent a recovery, and the question of mortgage or not was not passed upon by the jury.
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The opinion of the court was delivered,
by Agnew, J.
Upon a thorough examination of this case, a single question is presented, Whether on all the evidence the court was justified in submitting the facts to the jury ? Without laying down any rule, it may be conceded, for the purpose of the argument, that a deed absolute on its face cannot be converted into a mortgage, except upon clear and satisfactory evidence of its character as a security for the repayment of money; that the plaintiff in an ejectment to recover against the deed by converting it into a mortgage stands in the position of plaintiff in a bill in equity to redeem; and that the testimony of himself and the defendant have the same effect as the averments contained in the bill and answer: and, finally, that it is the duty of the judge, as it is that of a chancellor, to determine the sufficiency of the evidence, and, if it be insufficient, to refuse to submit the case to the jury. Carrying these views into the examination, we have not been able to say that the court erred in submitting the evidence to the jury to find the fact whether the deed was absolute or conditional. It is a conceded fact, to. begin with, that in the year 1840 David Bradford, the plaintiff, was largely in debt; that his property was advertised at sheriff’s sale, and that he had been unable to raise means to pay the executions pressing him. According to Bradford’s testimony, George W. Odenbaugh, his half-brother, came to the meadow where he was mowing, and proposed an arrangement to relieve him. He recounts minutely the circumstances, giving time, place, the persons present, the reasons given by Odenbaugh and the proposition, which was, that if Bradford would make him a deed for the place he would pay off the judgments, and whenever Bradford paid him back the money and interest he should have the land back'. Two of the persons present were Christian Odenbaugh, a brother of George, and Jacob Clifford. Bradford states that Christian said to his brother, “ Now, George, if Dave makes you a deed you will not take any advantage of him, will you ?” “ No,” said George, “ I won’t. God forbid that I should.” David Bradford then details the facts as to going with his wife to town the next day and making the deed to Odenbaugh. On the other, hand, Odenbaugh denies the statement of Bradford in decided terms. He says Betsy Kent (his sister) first spoke to him of relieving Bradford, and he suggested that the Bradfords should do it. She returned and told him Bradford had failed to get the money. Bradford, he says, came the next day, and this was the first time he saw him on the subject. He then states the bargain for the purchase of the land at $600; his consulting Mr. Cleavinger, a lawyer; Bradford’s coming over the following day, and the finishing of .the business. Among other things, he stated that he had ho private conversation with Mrs. Bradford; that she was examined apart by the magis[102]*102trate; that he never said to any one that the deed was only a security for money — never said so in his life, and he gives as a reason for not entering satisfaction on the judgments paid by him, that he was advised not to do so until he got the possession. Admitting, now, that the denial of Odenbaugh of the leading and material facts testified by Bradford sends us to an examination of the other evidence, how does the case stand? And first we may notice the contradiction of Odenbaugh’s statement by other witnesses. He is positively contradicted by Christian Odenbaugh and Jacob Clifford as to the first meeting with Bradford in relation to the offer of relief. He asserts Bradford came first to see him the day before the conveyance. They corroborate Bradford that Odenbaugh came to the meadow, and had there a conversation about the place and the deed. Christian Odenbaugh repeats in substance his own expression stated by Bradford, to wit, “ George, if Dave makes you a deed, you will not take any advantage of him?” and George’s reply, “No.” Odenbaugh is also contradicted by Mrs. Bradford as to their private interview in the entry, and her separate examination by the justice. He is contradicted in regard to the deed. He says he never said to any one that the deed was only a security. Mordecai Barnes, James Porter and Jesse Hook, distinctly say he did; and in effect the testimony of William Kent and Betsy Kent is the same thing. The reliability of Odenbaugh’s statement is therefore materially weakened by these contradictions. On the other hand, David Bradford’s testimony is corroborated in all its material facts. He is first directly corroborated as to the meeting in the meadow, and the conditional character of the deed to be made, by Christian Odenbaugh and Jacob Clifford, who were present. He is directly corroborated again by his wife as to the nature of the conveyance at the time it was executed and acknowledged. She refused to sign the deed. George took her out into the entry and explained it; said it was only to keep strangers from getting the land; as quick as Dave paid him the money with interest he was to have the land back.
Bradford is further corroborated by. Odenbaugh’s subsequent admissions to others on the very point of the case. Mordecai Barnes heard him say, in 1842 or 1848, that he was to release the land on condition that Bradford would pay back the money; but that Bradford was so worthless he thought he never would do it. James Porter testified that some time after Odenbaugh bought the place, he asked him if he thought he had a good title to the property; and he replied that he thought he had, under the circumstances, since Bradford was a very worthless man, and he thought he could not raise the money to pay him back. He said if Bradford raised the money he should have to give up the land! Jesse Hook says, that about thirty years ago George Odenbaugh [103]*103told him he had got the farm for a certain sum of money, and Bradford was to have it back when he could return him or pay him back the money. This testimony is again strengthened by the .testimony of John Porter, William.Kent and Betsy Kent; for though these witnesses do not testify on the very point as do the others, the effect of their testimony is the same.
There are facts and circumstances which tend to support the case of the plaintiff. When Odenbaugh paid off the judgments against Bradford, instead of having them satisfied at once as encumbrances against the land purchased, he took assignments and never entered satisfaction thereon until after the result of the ejectment against Bradford in 1842. His explanation is, that he had legal advice not to satisfy them until he got the possession. But if he had an absolute deed, what better off did the assignment of the judgments make him ? They could not give possession, and only clouded his title. But if his. deed was a mortgage only, the ownership of the judgments would enable him to enforce payment, and collect his money. Nor did he need the assignments to show payment on his bond, for by the very terms of his bond he was to have credit on it for payment of the judgments.
The ground on which Bradford failed in the ejectment of 1841, as testified to by two intelligent gentlemen present, and one participating in the trial, is also corroborative. In that' ejectment Odenbaugh, who was plaintiff then, claimed under the deed, and Bradford set up by way of defence that it was a mortgage; but not having tendered the money, the court held that this alone would not prevent a recovery, and the question of mortgage or not was not passed upon by the jury. Now, this is entirely consistent with the claim of a mortgage by the defendant; and the fact that he then set it up within two years, after the date of the deed is evidence that the defence is no recent discovery, while the litigation is a good reason for fixing the character of the transaction in the minds of those who now testify in the cause.
The next fact is the value of the land. According to the testimony on part of the plaintiff, this land was worth in 1840 at the rate of $15 an acre, subject to his mother’s life estate, and its annual rental was worth from $1 to $1.50 per acre. This would make the property, then, worth $2355'. • On the part of the defendant two of the witnesses testify that the land was worth $10 an acre, which would give the sum of $1570. The others testify that the sum paid by Odenbaugh was a fair price. But if fair, the 157 acres at $600 for the whole, would give but $3.82 an acre, exhibiting a great discrepancy in the testimony of the defence. If," again, we take the age of Mrs. Bradford the mother of David when the deed was made as about sixty-one years, her expectancy of life thereafter would, according to the tables, be. about ten years. Then the purchase-money, $600, and its inte[104]*104rest for ten years, $360, at six per cent., would be but $960. It is very evident, therefore, that Odenbaugh got the land for less than half -its value, and this is a circumstance favoring the fact of a mortgage.
Upon the whole case the evidence that the deed was a mortgage was so strong it would have been error to take it from the jury. The only countervailing facts are the delay of the plaintiff and the improvements of the defendant, and these have less force than at first they seem to have.
It is to be noticed that the defendant made no point at the trial upon either fact. As to the delay, the suit being brought in 1852, and standing on the record ever since as a notice and warning to the defendant of the continued claim of the plaintiff, it may well be accounted for in the very character the defendant gave of Bradford, as a worthless man and unable to raise the money to repay him. Even the money once tendered was raised out of bank for a few days and returned forthwith. Doubtless it was well known that it would not be accepted by defendant. Then as to the legal effect of the delay, it differs from an executory contract of purchase, which requires the vendee to be ever prompt, eager and ready to perform, in order to obtain the aid of a chancellor to enforce specific performance. If a mortgage, it stamps the deed with a legal effect that cannot be changed except by payment or release. Once a mortgage always a mortgage is the maxim of the law, and payment does not stand on the footing of performance in equity. The character of the deed being fixed by the evidence as conditional, the mortgagor has the same time to make payment that any other debtor has. The only effect that delay can have in such a case is in its bearing on the primary question.of mortgage or no mortgage; and even on that question its effect is weak in this case, for we find the plaintiff setting up the mortgage in the ejectment of 1841, tried in 1842, and after-wards in bringing this ejectment in 1852. Besides, the poverty of Bradford was a reason for delay in order to let the profits of the land repay the debt, Odenbaugh being in the possession by his recovery in 1842 in Pennsylvania, the mortgagee being entitled to recover in ejectment as one of. his remedies for collecting his money. If we add to the debt the claim for improvements, which Bradford’s sense of justice might induce him to suffer to be refunded, the whole delay would not stretch far beyond the period necessary to refund all to Odenbaugh out of the profits of the land. In regard to the improvements the defendant asked no instruction of the court. But if we take the rental as proved he had nothing to demand. This rental was proved at one dollar and a half per acre above the taxes and repairs — a few witnesses said one dollar an acre. Taking the medium, the cleared land alone, 100 acres, at $1.25 an acre, would give the annual sum of $125. [105]*105Tbe possession of the defendant of twenty-seven years and over would give a total of $3375, a sum amply sufficient to pay for both debt and interest and the improvements. We cannot see, therefore, that any injustice has been done to the defendant. Upon a careful consideration of the whole evidence we are unable to say that the’ court erred in submitting the case to the jury, and
The judgment is therefore affirmed.