feazance from the mortgagee. The mortgagor executed the conveyance, and then the mortgagee refused to execute the defeazance, Lord Nottingham (after the statute of frauds) admitted parol evidence to shew the agreement, and decreed against the mortgagee.

So Lord Hardwicke says (n), "Suppose a person who advances money should, after he (the mortgagor) has executed the absolute conveyance, refuse to execute the defeazance, will not this Court relieve against the fraud?" Again, in another case (o), he expressly recognizes the same doctrine, and in the subsequent case of Joynes v. Statham (p), the Lord Chancellor observed, " Suppose an agreement for a mortgage drawn by the mortgagee, the mortgagor being a marksman, and the mortgagee omit to insert a covenant for redemption, and then brings a bill to foreclose, shall not the mortgagor be at liberty in this Court, upon reading evidence, to shew the omission ?" So where (9) an absolute conveyance is made for a certain sum of money, and the person to whom it is made, instead of entering and receiving the profits, demands interest for his money, and has it paid him, this will be admitted to explain the nature of the conveyance; and if the conveyance be absolute, and a bill be filed to redeem, and the de

(n) Walker v. Walker, 2 Atk. 99; Dixon v. Parker, 2 Ves:

225.

(0) Young . Peachey, 2 Atk. 257. (p) Joynes v. Statham, 3 Atk. 387. (q) Maxwell v. Montacute, supra.

fendant swear it was an absolute purchase; nevertheless parol evidence will, it seems, be admissible to shew the contrary (r). And an indorsement on the deed of conveyance, signed by the mortgagor only, is evidence to shew the intent (s); as is also a note in writing signed by the parties (t); and in an instance where an absolute conveyance for 801. was made, and on bill filed to redeem, the defendant by his answer insisted, that it was intended to be an absolute conveyance without proviso and condition for redemption, but admitted it was in trust after payment of the 801. and interest, for the plaintiff's wife and children, but no such trust was declared by writing. The plaintiff insisted, that as the defendant had confessed he was not to have the estate absolutely, and had not proved the trust, he, the plaintiff, was entitled to redeem. The Court, however, decreed the trust for the benefit of the plaintiff's wife and children (u).

Nor will the Courts permit the mortgagee to clog the equity of redemption with any bye-agreement (r), so as to gain an undue advantage. Thus in a case, in which money was lent on mortgage at 6 per cent. and by a separate deed, the mortgagor covenanted to convey to the mortgagee, if he (the mortgagee) thought fit, ground-rents at twenty years' purchase, to the value of 16,000l. On bill filed to redeem,

(r) Franklyn v. Fern, Barnard. 30.
(t) Clench v. Witherby, Finch's Rep. 376.

(s) Ibid.

(u) Hampton v. Spencer, 2 Vern. 288.
(x) Jennings v. Ward and others, 2 Vern. 520.

on the usual terms of payment of principal, interest, and costs, the defendant insisted on the agreement; but the Master of the Rolls decreed according to the prayer of the bill.

And so careful is equity to protect the debtor against the oppression of his creditor, that it will not allow the mortgagee to enter into a contract with the mortgagor, at the time of the loan, for the absolute purchase of the lands for a specific sum, in case of default made in payment of the mortgage-money at the appointed time, justly considering it would throw open a wide door to oppression, and enable the creditor to drive an inequitable and hard bargain with the debtor, who is rarely prepared to discharge his debt at the specific time (y).

But we must be careful to distinguish between the last-mentioned rule, and a case with which it may be confounded, viz. an agreement by the mortgagor, in case of sale, to give the mortgagee a preference of pre-emption, which if claimed within a reasonable time will be enforced (). And although at first view this may seem to be within the objection raised by equity, viz. that of giving the creditor a collateral advantage over and above his principal and interest, yet on closer inspection it will be found clear of the rule. The option of sale is still left with the mort

(y) Price v. Perrie, 2 Freem. 258.

Willett v. Winnell, 1 Vern.

488; Bowen v. Edwards, 1 Rep. in Chan. 222.

(2) Orby v. Trigg, 2 Eq. Ca. Ab. 599, 24; 9 Mod. 2.

gagor; he may redeem or sell, nor is he tied down to price; all that is stipulated for is, that if he thinks fit to sell, he shall give the mortgagee the refusal, In Willett v. Winnell, and Bowen v. Edwards, the sale was compulsory, and the price stipulated.

The rule must be further distinguished from the cases, in which the Courts have considered the agreement not to amount to a mortgage, but to be a conditional purchase, and in which instances the vendor will, it seems, be kept to his contract. Of this class is the case of an agreement for the purchase of the equity of redemption entered into bona fide and subsequently to a mortgage which was made and concluded without reference to any such agreement, followed by a subsequent agreement between the parties, that the mortgagor might have the estate on payment of principal, interest and costs (a); and also the case of a release of the equity of redemption, with a collateral agreement to reconvey on repay-. ment of the purchase-money (b). And in this class also is the case of Sabine v. Barrell, infra.

A further distinction respecting which the authorities do not seem to be very clear, has been also made between mortgages and defeasible purchases (as they are called) subject to repurchase within a limited time, where the interest is taken by way

(a) Cotterell v. Purchase, Ca. Temp. Talbot, 61.

(b) Endsworth v. Griffiths, 15 Vin. Ab. 468, Pl. 8; 2 Eq. Ca Ab. 595, Pl. 6; 5 B. P. C. 184; Bac. Ab. 5, 9.

of rent-charge; for it is said, that in the latter cases the stipulations made between the parties must be strictly adhered to, or the estate of the grantee will become absolute.

The cases on which this doctrine rests are Floyer v. Lavington (c), and Mellor v. Lees (d).

In the first of these cases, a man in consideration of 8001. granted to another a rent of 481. in fee, with a condition, that if the grantor should at any time give notice of his intention to pay in the consideration-money by instalments of 100%. every six months, and should, pursuant to such notice, pay the said money and interest at any time during his life, the grant should be void. There was no covenant to pay the money, and the rate of interest was then 10%. per cent., being much above the amount of the annuity. The grantor was dead; the grantee had conveyed the rent-charge to a purchaser, and sixty years had elapsed. A bill was brought by the heir of the grantor to redeem, and it was dismissed. And in the second of these cases, a man mortgaged lands in fee to secure 2007. and the mortgagees demised the lands to the mortgagor for 5,000 years, at a yearly rent of 127. for the first three years, and 10%. for the residue of the term, with a proviso, that if in the space of three years the 2007. was paid with interest, the premises should be re

(c) 1 P. Williams, 268.

d) 2 Atk. 494.