Goldsborough, J.,
delivered the opinion of this Court:
The plaintiff’s lessee instituted an action of ejectment in the Circuit Court for Somerset county, on the 17th day of March 1857, to recover the parcels of land named in his declaration, and which'his lessor claims as permanent trustee of the defendant, now appellee. The appellee appeared as defendant to the suit, and pleaded not guilty.
The lessor of the plaintiff offered in evidence the proceedings upon the application of the defendant for the benefit of the insolvent laws, and his, the appellant’s appointment as trustee. He also offered in evidence the deed from Levi Riggin to the defendant, for the land involved in this [549]*549suit; and proved that the defendant had been in possession of the premises from the date of Levi Biggin’s deed to the date of the institution of this suit.
The defendant, to sustain the issue on his part, offered in evidence a deed from himself to Joshua P. Horsey, dated the 27tli day of October 1849, by which the land in dispute is conveyed to Horsey in fee, for §1,400 paid to the defendant by Horsey, as stated in the record.
He further offered in evidence a bond executed by Horsey to him, dated the 27th October 1849, by which Horsey hinds himself in the penalty of $2,800 to convoy back the land which had been conveyed to him by the deed in question, on payment of $1,400, with interest thereon, on or before tbo 27th day of October 1851.
Ho also offered to prove, by Miss Mary P. Mills, the facts stated in the record, relating to a certain conversation and agreement between the defendant and Horsey, prior to the execution of the deed in relation thereto.
The defendant therefore relies for his defence on the outstanding title of Horsey, a third party. It thus appears Shat the plaintiff’s lessor and Horsey both deduce their title from the defendant.
At the trial of the cause, seven exceptions were taken by the appellant to the ruling of the Court. Six of them upon the admission or rejection of evidence, and the other upon the rejection of the appellant’s prayers set out in the seventh exception.
We shall review the action of the Circuit Court upon the exceptions as they are respectively presented in the record.
The rejection of the evidence contained in the first exception, was correct. Though the deposition of Moore was taken under a commission from Chancery, in a cause then pending between the parties to this cause, there is no evidence that the commission was properly returned and authenticated by the commissioner, or that the Court amongst [550]*550whose records it was found, had taken any judicial action upon it. 4 H. & J., 141. 2 Md. Rep., 154.
We think the Court was right in admitting the evidence of Miss Mills, as stated in the second exception. That evidence was not only admissible to explain the motives and circumstances surrounding the deed from Eiggin to Horsey, and therefore a part of the res gestea, and also to rebut the plaintiff’s impeachment of it on the ground that Eiggin, at the time, had it in contemplation to apply for the benefit of the insolvent laws; but its admission worked no injury to the plaintiff, tending, as will be perceived hereafter, to qualify the absolute character of the deed before referred to.
The purpose of the defendant in offering the evidence in the third exception, is not inconsistent with the consideration in the deed from Eiggin to Horsey. The payment of the claims by Horsey for Eiggin, at his instance, is the same as if they were paid by him. See 3 Md. Ch. Dec., 171. The evidence was also admissible to rebut the allegation of fraud. See 1 Gill, 412.
The fourth and sixth exceptions may be considered together, and we think the evidence in them, respectively, was properly admitted. The plaintiff had given evidence of the continued possession of Eiggin after the deed to Horsey, from which fraud might be inferred. The bills obligatory and declarations of the parties, in the presence of Bell and Handy, were admissible to rebut fraud, and as to those transactions, may be properly regarded as res gestea, and as explanatory of 'Niggin’s continued jjossession. 14 E. C. Rep., 366, 367.
In the fifth exception, the plaintiff moved the Court “that the record of the deed from Eiggin to Horsey, which had been read in evidence, be excluded from the jury,, as not legal and competent evidence in the cause; because said bond was not recorded with said deed.”
[551]*551Tbe only valid and legal defence relied on by tbe defendant, is the outs landing title of his vendee, Joshua P. Horsey, and that title is shown by tlio deed offered in evidence, if from any legal view of this case, the Circuit Court erred in refusing the plaintiff’s motion, as stated in the fifth exception, and if the deed from Biggin to Horsey should have hceu excluded from the jury, as not legal and competent evidence, the judgment must be reversed.
In considering the fifth exception, it must be borne in mind that the evidence on the part of the defendant had. boon offered to the jury with the sanction of the Court, against the exception of the plaintiff thereto. This evidence, thus offered hy the appellee, was binding on him. It was part of his case, which he could not contradict.
The bond offered in evidence, and the testimony of Miss Mills, showed that the deed, though absolute on its face, was intended to be but a mortgage to secure tbe re-payment of tbe debts which Horsey had paid for Biggin, It was not a case in which conflicting evidence was offered as to a disputed point; but it is a case of written or oral admissions of the defendant, by which ho was bound. Tbe jury, therefore, could not, for his benefit, find tbe facts to be otherwise than he had thus admitted them to he.
The Court, in passing upon the admissibility of the deed, should have assumed these facts as proved, and then have pronounced upon their legal effect on the deed. The Court could have said, these facts, thus admitted to be true, converted tbe deed, absolute on its face, into a mortgage. If tbe evidence of these facts had been offered by the plaintiff, then it would have been necessary for tbe jury to pass upon them, even though the evidence might have been all one way on the point. 0
Where a party, by his own admissions, or by his own proof, shows facts, and the Court is then asked to make a ruling on them against him, it may assume tbe facts to be [552]*552true; because he cannot contradict them. In Armstrong vs. Risteau, 5 Md. Rep., 269, 275, each party made locations, and as to the first and second lines of the whole tract, the'locations were identical, and this was held to be an admission by which the plaintiff was concluded, so that the jury could not find contrary thereto, but must find the beginning, &c., to bé as located bjr the plaintiff. This doctrine is admitted and followed in 11 Md. Rep., 184, Inloes’ case, and in 18 Md. Rep., 355, 356, Birney vs. N. Y. & W. T. Co.
If the plaintiff had offered a prayer, that if the jury find the facts testified to by Miss Mills, and the execution of the bond, then such facts and their legal effect made the deed a mortgage; and we think the Court would have erred if it had refused it.
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Goldsborough, J.,
delivered the opinion of this Court:
The plaintiff’s lessee instituted an action of ejectment in the Circuit Court for Somerset county, on the 17th day of March 1857, to recover the parcels of land named in his declaration, and which'his lessor claims as permanent trustee of the defendant, now appellee. The appellee appeared as defendant to the suit, and pleaded not guilty.
The lessor of the plaintiff offered in evidence the proceedings upon the application of the defendant for the benefit of the insolvent laws, and his, the appellant’s appointment as trustee. He also offered in evidence the deed from Levi Riggin to the defendant, for the land involved in this [549]*549suit; and proved that the defendant had been in possession of the premises from the date of Levi Biggin’s deed to the date of the institution of this suit.
The defendant, to sustain the issue on his part, offered in evidence a deed from himself to Joshua P. Horsey, dated the 27tli day of October 1849, by which the land in dispute is conveyed to Horsey in fee, for §1,400 paid to the defendant by Horsey, as stated in the record.
He further offered in evidence a bond executed by Horsey to him, dated the 27th October 1849, by which Horsey hinds himself in the penalty of $2,800 to convoy back the land which had been conveyed to him by the deed in question, on payment of $1,400, with interest thereon, on or before tbo 27th day of October 1851.
Ho also offered to prove, by Miss Mary P. Mills, the facts stated in the record, relating to a certain conversation and agreement between the defendant and Horsey, prior to the execution of the deed in relation thereto.
The defendant therefore relies for his defence on the outstanding title of Horsey, a third party. It thus appears Shat the plaintiff’s lessor and Horsey both deduce their title from the defendant.
At the trial of the cause, seven exceptions were taken by the appellant to the ruling of the Court. Six of them upon the admission or rejection of evidence, and the other upon the rejection of the appellant’s prayers set out in the seventh exception.
We shall review the action of the Circuit Court upon the exceptions as they are respectively presented in the record.
The rejection of the evidence contained in the first exception, was correct. Though the deposition of Moore was taken under a commission from Chancery, in a cause then pending between the parties to this cause, there is no evidence that the commission was properly returned and authenticated by the commissioner, or that the Court amongst [550]*550whose records it was found, had taken any judicial action upon it. 4 H. & J., 141. 2 Md. Rep., 154.
We think the Court was right in admitting the evidence of Miss Mills, as stated in the second exception. That evidence was not only admissible to explain the motives and circumstances surrounding the deed from Eiggin to Horsey, and therefore a part of the res gestea, and also to rebut the plaintiff’s impeachment of it on the ground that Eiggin, at the time, had it in contemplation to apply for the benefit of the insolvent laws; but its admission worked no injury to the plaintiff, tending, as will be perceived hereafter, to qualify the absolute character of the deed before referred to.
The purpose of the defendant in offering the evidence in the third exception, is not inconsistent with the consideration in the deed from Eiggin to Horsey. The payment of the claims by Horsey for Eiggin, at his instance, is the same as if they were paid by him. See 3 Md. Ch. Dec., 171. The evidence was also admissible to rebut the allegation of fraud. See 1 Gill, 412.
The fourth and sixth exceptions may be considered together, and we think the evidence in them, respectively, was properly admitted. The plaintiff had given evidence of the continued possession of Eiggin after the deed to Horsey, from which fraud might be inferred. The bills obligatory and declarations of the parties, in the presence of Bell and Handy, were admissible to rebut fraud, and as to those transactions, may be properly regarded as res gestea, and as explanatory of 'Niggin’s continued jjossession. 14 E. C. Rep., 366, 367.
In the fifth exception, the plaintiff moved the Court “that the record of the deed from Eiggin to Horsey, which had been read in evidence, be excluded from the jury,, as not legal and competent evidence in the cause; because said bond was not recorded with said deed.”
[551]*551Tbe only valid and legal defence relied on by tbe defendant, is the outs landing title of his vendee, Joshua P. Horsey, and that title is shown by tlio deed offered in evidence, if from any legal view of this case, the Circuit Court erred in refusing the plaintiff’s motion, as stated in the fifth exception, and if the deed from Biggin to Horsey should have hceu excluded from the jury, as not legal and competent evidence, the judgment must be reversed.
In considering the fifth exception, it must be borne in mind that the evidence on the part of the defendant had. boon offered to the jury with the sanction of the Court, against the exception of the plaintiff thereto. This evidence, thus offered hy the appellee, was binding on him. It was part of his case, which he could not contradict.
The bond offered in evidence, and the testimony of Miss Mills, showed that the deed, though absolute on its face, was intended to be but a mortgage to secure tbe re-payment of tbe debts which Horsey had paid for Biggin, It was not a case in which conflicting evidence was offered as to a disputed point; but it is a case of written or oral admissions of the defendant, by which ho was bound. Tbe jury, therefore, could not, for his benefit, find tbe facts to be otherwise than he had thus admitted them to he.
The Court, in passing upon the admissibility of the deed, should have assumed these facts as proved, and then have pronounced upon their legal effect on the deed. The Court could have said, these facts, thus admitted to be true, converted tbe deed, absolute on its face, into a mortgage. If tbe evidence of these facts had been offered by the plaintiff, then it would have been necessary for tbe jury to pass upon them, even though the evidence might have been all one way on the point. 0
Where a party, by his own admissions, or by his own proof, shows facts, and the Court is then asked to make a ruling on them against him, it may assume tbe facts to be [552]*552true; because he cannot contradict them. In Armstrong vs. Risteau, 5 Md. Rep., 269, 275, each party made locations, and as to the first and second lines of the whole tract, the'locations were identical, and this was held to be an admission by which the plaintiff was concluded, so that the jury could not find contrary thereto, but must find the beginning, &c., to bé as located bjr the plaintiff. This doctrine is admitted and followed in 11 Md. Rep., 184, Inloes’ case, and in 18 Md. Rep., 355, 356, Birney vs. N. Y. & W. T. Co.
If the plaintiff had offered a prayer, that if the jury find the facts testified to by Miss Mills, and the execution of the bond, then such facts and their legal effect made the deed a mortgage; and we think the Court would have erred if it had refused it. We regard the same question as raised by the plaintiff, when he asked the Court to exclude the deed from the jury. The point raised in the fifth ex- ' ception, is the admissibility of the deed. Its exclusion was; asked upon proof adduced by the defendant himself; in-fact, upon his own admissions. If it be true that the jury could not, at the instance of the defendant, have found the-facts contrary to his own admissions, the Court had a right to assume the truth of such facts, and to pronounce upon their legal effect.
This proof was a necessary part of the defendant’s case,, in order to rebut the evidence of fraud offered on the part of the plaintiff. The defendant could not use it for one-purpose, and then deny its truth when the plaintiff attempted to make use of it for the purpose of raising a question of law upon the admissibility of the deed.
In view, therefore, of the evidence offered by the appellee, both written and oral, and to which we have heretofore referred, the deed, from Riggin to Horsey must be regarded as a mortgage, and there being no evidence that the bond, operating as a defeasance, was recorded with the deed,, [553]*553Horsey could have no benefit or advantage from the recording thereof, and the deed was improperly admitted to go to the jury as evidence of title in Horsey. See Act of 1825, cli. 203, sec. 2. Act of 1818, oh. 10-4.
And further, if the deed, from Biggin to Horsey be regarded as a mortgage, the plaintiff, as the insolvent trustee of Biggin, takes the property in dispute into Ms exclusive possession and control, free from the interference of Horsey, the mortgagee. See 1 Md. Rep., 471. 5 Gill, 178.
The first prayer of the plaintiff, in the seventh exception, was properly rejected. The question presented by this prayer is not the same as that arising on the fifth exception, which has been Leíble considered. The prayer, so far as it regards the effect of a failure to record the bond of re-conveyance, confines the attention of the Court to the deed and the bond, without referring to the other evidence in the cause, which tended to explain the real nature of the transaction, and presents the proposition that the legal effect of those papers was to bring the case within the provisions of the Act of 1825. In the opinion of this Court, such a proposition cannot bo maintained. A contract by a vendee, made contemporaneously with the deed, to re-sell to the vendor, if bona fide, does not impair the validity of the deed, nor is it necessary that the contract for re-sale should bo recorded. In passing upon the fifth exception, we have said that the testimony offered by the defendant, explaining the real nature of the transaction, brought the case within the Act of 1825; but on the face of the papers considered in themselves, this result does not follow.
The second, third, fourth and fifth prayers in the seventh exception, were also properly refused. Because, although the jury might find all the. facts stated in those prayers, yet, unless they also found that Horsey, the grantee, had notice of the insolvent condition or fraudulent intent of [554]*554Biggin, the grantor, the grantee's title under the deed could not be successfully impeached, either under our insolvent laws, or under the Statute of Elizabeth. See 18 Johns. R., 530, 538. 3 Md. Ch. Dec., 151. 6 Cranch, 133.
(Decided April 2nd, 1863.)
These prayers are all fatally defective, in omitting to require the jury to find such notice or knowledge on the part of Horsey. Although there was evidence in the cause from which the jury might find such knowledge by Horsey, this evidence ought to have been submitted by the prayers to the jury.
The ruling of the Circuit Court upon the first, second, third, fourth, sixth and seventh exceptions, is affirmed, , and reversed on the fifth exception.
Judgment reversed and procedendo awarded.