The opinion of the court was delivered by
Thompson, J.
This was an ejectment for 19J acres of land in Blockley township, in the county of Philadelphia, brought by [138]*138George Ludwick against Adam Reitenbaugh. The main controversy grew out of certain writings between the parties, dated the 12th of April 1844; the one, a deed by Ludwick and wife to Reitenbaugh, for the premises in question; and the other, an agreement by Reitenbaugh to reconvey the property to Ludwick on his paying the sum of $512,080, with interest, expenses, &c., after deducting rents, within six years. This agreement, although bearing even date with the deed, was actually executed on the 17th of May following.
' Did these instruments constitute a mortgage or a conditional sale ? The defeasance bore even date with the deed, but was subsequently executed. Under these circumstances, parol evidence was offered and received, under exception, to show what the transaction really was, from first to last, and that' the parties treated as for security for money, and not as fixing terms of sale. It was not introduced to contradict or vaiy the writings, but as showing that the papers constituted one arrangement, agreed upon at one and the same time. This, proved to the satisfaction of a jury, would undoubtedly establish the fact that they constituted a mortgage, and not a conditional sale. Abundant authority clearly authorized the reception of the evidence. Among them may be cited Colwell v. Woods, 3 Watts 188 ; Kunkle v. Wolfersberger, 6 Watts 126; Jaques v. Weeks, 7 Watts 261; Rankin v. Mortimere, Id. 372. It has been oftentimes ruled, as in Kunkle v. Wolfersberger, “ that a formal conveyance may be shown to be a mortgage by extrinsic proof, while'a formal mortgage cannot be shown to be a conditional sale by the same means.” Ejectment by mortgagor against mortgagee in possession, is like a bill in equity to redeem, in which a chancellor would look into all the' circumstances, to ascertain the right of the party to redeem, and whether the facts constituted the relation alleged or not. The court did no more here, when they received evidence to fix the true character of the transaction; there was consequently no error in receiving it. Being received, it showed that $10,000 of the money, which went to make up the consideration of the deed, and which was stipulated to be paid upon reconveyance, was borrowed for Ludwick from Parke & Smith, for which he and Reitenbaugh gave their joint bond, and to secure which Reitenbaugh executed a mortgage on Ludwick’s property, which had been conveyed to him. This sum, with $2050, which Ludwick owed him on some former account, constituted the entire consideration in the deed, and was the sum, with interest, expenses, &c., to be paid by Ludwick for the reconveyance; and the agreement for reconveyance was of the same date as the deed. This was evidence sufficient, if believed, that the deed and defeasance were but a security for money. But I think the plaintiff had no good ground to complain of this testimony ; for the authorities, in my judgment, would have borne out [139]*139the learned judge in giving to these instruments the construction that they constituted a mortgage, without the aid of parol evidence: Powell on Mortgages 115-116; Jaques v. Weeks, 7 Watts 261; Kerr v. Gilmore, 6 Watts 405; Rankin v. Mortimere, 7 Watts 372. The defeasance signed by the defendant, recited that it was an agreement of even date with the deed, although it was executed a short time afterwards. It is well settled that, if the deed and defeasance bear even date, of are agreed upon at the same time, and in the form of the papers in this case, they constitute a mortgage. That they were so agreed upon, the instrument showed; the execution afterwards did not negative this. We have considered this point first, notwithstanding it is the fifth assignment of error, as being in the most natural order in reviewing the case, and we find no error in it.
The first, second, and third assignments will bé considered together. The evidence complained of in each of them, was received for a similar purpose.' It was by way of explanation of the release of the 1st of February 1850. If that release was to be absolute in fact, it mattered little what the original papers were, whether a mortgage or conditional sale; it divested all the plaintiff’s rights in either event. If a mortgage, it released and transferred his equity of redemption; and, if a conditional sale, his right to a reconveyance; and he would, if we believe the evidence, most probably be a loser to the extent of $25,000 or $30,000.
It appeared, by the testimony of Cavender, that the loan from Parke & Smith was negotiated through Williamson, and that he drew the mortgage from Reitenbaugh to them. The mortgage was executed and recorded, without any knowledge on their part of the existence of the defeasance, and this made it perfectly good so far as they were concerned. But an execution coming out, subsequently, on a judgment against Ludwick, the existence of a defeasance became known to Williamson, and he, of his own mere motion, told the plaintiff and defendant, as he testifies, that it must be got rid of. “ That, if it was not got rid of, it would be his duty to advise Parke & Smith to proceed to collect the mortgage.” He seemed to be of the opinion that they might be injured by it: he says, “ The plaintiff was anxious to have it done; they both came to me for advice; they both expressed an unqualified desire to have it done.” He w7rote the release under these circumstances, and says, he explained to the plaintiff, before sign-ins:, what the character of the paper was. The consideration was $1050.
For the purpose of showing that as between the parties, it was not intended as an unqualified release of the defeasance, or so treated by them, but to get it out of the way of the mortgage, the evidence contained in the bills of exception was received. It did [140]*140not tend to contradict the paper, hut to give to it the effect and operation intended by the parties, and to prevent its being set up with a different effect, and for a different purpose. ’ To permit it to be so used, would be a fraud which a chancellor would enjoin a party from doing, and which may be done in ejectment, by restraining it to what was intended and agreed upon at the time of its execution. If the evidence went to establish this, and that the parties themselves did not at the time of the execution of the release seek any change in the positions they were then occupying, but acted alone under the mistaken view of rendering the mortgage secure, and by the advice of one who was counsel for both, as well as attorney for Parke & Smith, it certainly should be in the power of Ludwick to show what the transaction really was, and that there was bad faith on part of Reitenbaugh setting up, as absolute and unconditional, a transfer that was not so; and to show all the facts and circumstances attending the transaction — the value of the property at the time — the declarations of the defendant after the release and while in possession of the property, about giving it up to plaintiff, on being paid the sum stipulated in the defeasance; the acts of ownership of the plaintiff himself; the immediate and moving motive for executing the release, and anything else tending to show its true character, and that a fraudulent use of the instrument was being attempted to be made.
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The opinion of the court was delivered by
Thompson, J.
This was an ejectment for 19J acres of land in Blockley township, in the county of Philadelphia, brought by [138]*138George Ludwick against Adam Reitenbaugh. The main controversy grew out of certain writings between the parties, dated the 12th of April 1844; the one, a deed by Ludwick and wife to Reitenbaugh, for the premises in question; and the other, an agreement by Reitenbaugh to reconvey the property to Ludwick on his paying the sum of $512,080, with interest, expenses, &c., after deducting rents, within six years. This agreement, although bearing even date with the deed, was actually executed on the 17th of May following.
' Did these instruments constitute a mortgage or a conditional sale ? The defeasance bore even date with the deed, but was subsequently executed. Under these circumstances, parol evidence was offered and received, under exception, to show what the transaction really was, from first to last, and that' the parties treated as for security for money, and not as fixing terms of sale. It was not introduced to contradict or vaiy the writings, but as showing that the papers constituted one arrangement, agreed upon at one and the same time. This, proved to the satisfaction of a jury, would undoubtedly establish the fact that they constituted a mortgage, and not a conditional sale. Abundant authority clearly authorized the reception of the evidence. Among them may be cited Colwell v. Woods, 3 Watts 188 ; Kunkle v. Wolfersberger, 6 Watts 126; Jaques v. Weeks, 7 Watts 261; Rankin v. Mortimere, Id. 372. It has been oftentimes ruled, as in Kunkle v. Wolfersberger, “ that a formal conveyance may be shown to be a mortgage by extrinsic proof, while'a formal mortgage cannot be shown to be a conditional sale by the same means.” Ejectment by mortgagor against mortgagee in possession, is like a bill in equity to redeem, in which a chancellor would look into all the' circumstances, to ascertain the right of the party to redeem, and whether the facts constituted the relation alleged or not. The court did no more here, when they received evidence to fix the true character of the transaction; there was consequently no error in receiving it. Being received, it showed that $10,000 of the money, which went to make up the consideration of the deed, and which was stipulated to be paid upon reconveyance, was borrowed for Ludwick from Parke & Smith, for which he and Reitenbaugh gave their joint bond, and to secure which Reitenbaugh executed a mortgage on Ludwick’s property, which had been conveyed to him. This sum, with $2050, which Ludwick owed him on some former account, constituted the entire consideration in the deed, and was the sum, with interest, expenses, &c., to be paid by Ludwick for the reconveyance; and the agreement for reconveyance was of the same date as the deed. This was evidence sufficient, if believed, that the deed and defeasance were but a security for money. But I think the plaintiff had no good ground to complain of this testimony ; for the authorities, in my judgment, would have borne out [139]*139the learned judge in giving to these instruments the construction that they constituted a mortgage, without the aid of parol evidence: Powell on Mortgages 115-116; Jaques v. Weeks, 7 Watts 261; Kerr v. Gilmore, 6 Watts 405; Rankin v. Mortimere, 7 Watts 372. The defeasance signed by the defendant, recited that it was an agreement of even date with the deed, although it was executed a short time afterwards. It is well settled that, if the deed and defeasance bear even date, of are agreed upon at the same time, and in the form of the papers in this case, they constitute a mortgage. That they were so agreed upon, the instrument showed; the execution afterwards did not negative this. We have considered this point first, notwithstanding it is the fifth assignment of error, as being in the most natural order in reviewing the case, and we find no error in it.
The first, second, and third assignments will bé considered together. The evidence complained of in each of them, was received for a similar purpose.' It was by way of explanation of the release of the 1st of February 1850. If that release was to be absolute in fact, it mattered little what the original papers were, whether a mortgage or conditional sale; it divested all the plaintiff’s rights in either event. If a mortgage, it released and transferred his equity of redemption; and, if a conditional sale, his right to a reconveyance; and he would, if we believe the evidence, most probably be a loser to the extent of $25,000 or $30,000.
It appeared, by the testimony of Cavender, that the loan from Parke & Smith was negotiated through Williamson, and that he drew the mortgage from Reitenbaugh to them. The mortgage was executed and recorded, without any knowledge on their part of the existence of the defeasance, and this made it perfectly good so far as they were concerned. But an execution coming out, subsequently, on a judgment against Ludwick, the existence of a defeasance became known to Williamson, and he, of his own mere motion, told the plaintiff and defendant, as he testifies, that it must be got rid of. “ That, if it was not got rid of, it would be his duty to advise Parke & Smith to proceed to collect the mortgage.” He seemed to be of the opinion that they might be injured by it: he says, “ The plaintiff was anxious to have it done; they both came to me for advice; they both expressed an unqualified desire to have it done.” He w7rote the release under these circumstances, and says, he explained to the plaintiff, before sign-ins:, what the character of the paper was. The consideration was $1050.
For the purpose of showing that as between the parties, it was not intended as an unqualified release of the defeasance, or so treated by them, but to get it out of the way of the mortgage, the evidence contained in the bills of exception was received. It did [140]*140not tend to contradict the paper, hut to give to it the effect and operation intended by the parties, and to prevent its being set up with a different effect, and for a different purpose. ’ To permit it to be so used, would be a fraud which a chancellor would enjoin a party from doing, and which may be done in ejectment, by restraining it to what was intended and agreed upon at the time of its execution. If the evidence went to establish this, and that the parties themselves did not at the time of the execution of the release seek any change in the positions they were then occupying, but acted alone under the mistaken view of rendering the mortgage secure, and by the advice of one who was counsel for both, as well as attorney for Parke & Smith, it certainly should be in the power of Ludwick to show what the transaction really was, and that there was bad faith on part of Reitenbaugh setting up, as absolute and unconditional, a transfer that was not so; and to show all the facts and circumstances attending the transaction — the value of the property at the time — the declarations of the defendant after the release and while in possession of the property, about giving it up to plaintiff, on being paid the sum stipulated in the defeasance; the acts of ownership of the plaintiff himself; the immediate and moving motive for executing the release, and anything else tending to show its true character, and that a fraudulent use of the instrument was being attempted to be made. Great latitude in such cases is always allowable, and we think the evidence was rightly received by the court.
The state of the case under this testimony, and other evidence of the same kind, drew from the learned judge the remark forming the sixth assignment of error. He had fully explained the object of the testimony, and if believed, what the result would be, and then added, “ that if the arrangement was a mere getting the defeasance out of the way of Parke & Smith, and not intended to change the relation between the parties themselves; if, in a word, it was anything but a fair sale of the equity of redemption, then the relation of mortgagor and mortgagee still subsisted.” The evidence being admitted, this was a clear exhibition of the point for determination under it: it was left fairly to the jury, and there was no error in the remark complained of.
The fourth assignment of error was not pressed, and we see no reason why it should have been.
The seventh and eighth assignments are to the charge of the court in regard to the defendant’s accounting for the profits of the mortgaged premises, and one hundred and twenty shares of bank stock. The charge had reference to the position taken, that Reitenbaugh was in fact a trustee of Ludwick, and if so, was endeavouring to change that relation into an absolute one, and was wrongfully resisting his obligation to account. The fact of whether this was so or not, was referred to the jury with the [141]*141instruction, that if they did find the transaction a mortgage, and there was no release of it, then Reitenbaugh was bound to account for the profits. “And under these circumstances, the jury should make every presumption against him the evidence will warrant.” This was the connection in which this instruction was given, and we do not perceive that it contains an invitation to the jury to go beyond the evidence. It was, indeed, what' a jury might fairly do, in deducing conclusions from evidence in any case, and in this case the instruction was entirely proper. Nor was there any error in holding him chargeable with the highest market price of the stocks, if he refused to account for them.
The ninth and eleventh errors were not pressed, and the tenth not sustained.
The cases cited of McConnel v. Linton, 4 Watts 357, Wolfran v. Eyster, 7 Watts 39, Walters v. Junkins, 16 S. & R. 415, were abundant authority for the course pursued, in regard to a correction, of the verdict. The jury having sealed it up, and separated on coming into court, it was found not to be in form to meet the whole case, and before receiving and recording it, the court sent them hack to put it in due form. This is fully sustained by the cases, and, it is believed, is the universal practice throughout the state. The sealed paper was in fact not the verdict, until it was recorded, and until that was done, it was within the discretion of the court to send the jury back to consider and correct mistakes, or put it in form. A verdict once recorded, and the jury dismissed, if but for an instant, they cannot be recalled: Walters v. Junkins, 16 S & R. 415. It is beyond the reach of any discretion, and to exercise it, would be an error reviewahle here, which is not so, ordinarily, in cases like the present. This discretion is an incident to the mode and manner of the trial, and must he left to the courts, and, unless in a flagrant exercise of it, is not reviewable. It is in fact a condition implied of permitting the jury to seal up their verdict, that it may be subject to this mode of correction ; otherwise, it is probable the practice never would have been allowed to prevail.
We see no error in- the record, and the judgment is affirmed, and the time allowed by the jury for corn-compliance with the conditions of the verdict' enlarged to the 1st of June 1858.