delivered the opinion of the as follows:

This suit was brought by Walter S. Alexander, as devisee of Robert Alexander, to redeem certain lands lying in the neighborhood of Alexandria, which were conveyed by' Robert Alexander, in trust, by deed dated the 20th of March, 1788, and which were afterwards conveyed to William Lyles, and by him to the testator of the Plaintiffs in error.

The-deed of the 20th of March, 1788, is between Robert Alexander of the first part, William Lyles of t.he second part, and Robert T. flooe, Robert Muiré and John Allison of the third part. , Robert Alexander, after reciting that he was seized of one undivided moiety of 400 acres of land, except 40 acre's thereof previously sold to Baldwin Dade, as tenant in common with Charles Alexander, in consideration of eight hundred pounds paid by William Lylc,s, and of the covenants therein mentioned, grants, bargains and sells twenty acres, part of the said undivided moiety, to William Lyles, his heirs and assigns forever, and the residue thereof, except that which had been previously sold to Baldwin Dade, to the said Robert T. Hdoe, Robert Muiré and John Allison, in trust, to convey the same to William Lyles fit any reasonable time after the first day of July,; ±790, unless Robert Alexander shall pay to the said William Lyles, on or before that day, the sum of 700Z. with interest from the said 20th of March, 4788; And if the said Robert Alexander shall pay the said William Lyles, on or before that day, the said sum of 700Z. with interest, then to rcconvey .the .same to the said Robert Alexander. Robert Alexander''further covenants, that, in the event of a reconveyance to him, the said twenty acres sold absolutely'shall be laid off adjoining the tract of land on which William Lyles then lived. The trustees covenant to convey to Wik ham Lyies, on- the non-payment of the said sum of 700L; mud to re-convey to Robert Alexander in the [*236] event of payment. Robert Alexander covenants' for further assurances as to the 140 acres, and warrants the twenty acres to William Lyles and his heirs.

On the 19th of July, 1790, the trustees, by a deéd in the trust is recited, and that Robert Alexander has failed to pay the said sum of 7Q0Z., convey the said, land in fee to William Lyles.

Ón-the 23d of August, 1790, William Lyles, in consideration , of 900Í., eonveyed the said 20 acres of land and 140 acres of land to Richard Conway with special warranty against himself and bis heirs.

On the 9th day of April, in the year 1791, a deed of partial partition was made between Richard Conway and Charles Alexander. This deed shows .that Charles Alexander asserted an exclusive title in himself to a .considerable part of this land.

Soon after this deed of partition was executed, Richard Conway entered upon a part of the lands assigned to him, and made on them permanent improvements of great value and at considerable expence. .

In January or February, 1793, Robert Alexander departed this life, having first made his last will in writing, in which he devises the land sold to Baldwin Dadej but does not mention the land sold to William Lyles.

The Plaintiff, who was then an infant, and who attained his age of twenty-one years in November, 1803, brought his bill to redeem in 1807. He claims under the residuary clause of Robert Alexander’s will.

The question to be decided is, whether Robert Alexander, by his deed of March, 1788, made a conditional sale of the property conveyed, by that .deed, to trustees, svhich sale became absolute by the non -payment of 700Z. with interest on the 1st of July, 1790, and by the conveyance of the ¿9th of that month, or is to be considered as having Only mortgaged the nropertv so conveyed;

To deny the power Of two individuals, capable of [*237] acting for themselves, to make a contract for the purchase and sale of lands defeasible by the payment of money at a future day, or, in other words, to make a sale with a reservation! to the vendor of a right to repurchase the same land at a fixed price and at a spedfied time, would be to transfer to the Court of Chancery, in a'considerable degree, the guardianship of adults as well as Of infants. Such contracts are certainly not prohibited either by the;' letter or the policy of the law. But the policy of the law does prohibit the conversion of a real mortgage into a sale. And as lenders of money are less under the pressure of circumstances which control the perfect and free exercise of the judgment than borrowers, the effort is frequently made by persons of this description to avail themselves of the advantage of this superiority, in order to obtain inequitable advantages. For this reason the leaning of Courts has been against them, and doubtful cases have generally been decided to be mortgages. But as a conditional sale, if really intended, is valid, the inquiry in every, case must be, whether the contract in the specific case is a security for the re-payment oí money or an actual sale.

In this case the form of the deed is not, in itself, conclusive either way. The want of a covenant to repay the money is not complete evidence that a conditional sale was intended, but is a circumstance of no inconsiderable importance, if the vendee must be restrained to his principal and interest, that principal and interest ought to be secure. ! It is, therefore, a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy x'eally exists, its not being resexved in teiuns will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument. Its existence, in this case, is certainly not to. be collected from the deed. There is no acknowledgement of a pre-existing debt, nor any covenant for repayment. An action, at law, for the recovery of the money, certainly could not have been sustained; and if, to a bill in chancery praying a sale of the premises, and a decree for so much money as might remain due, Robert Alexander had answered that this was a sale and not a mortgage, clear proof to [*238] the contrary must have been produced to justify a decree against him.

That the conveyance is made to trustees is not a cir-cum'stance of much weight. .It manifests an intention in tiie drawer of the instrument to avoid the usual forms of a mortgage, and introduces third persons, who aife perfect strangers to-the transaction, for no. other conceivable purpose than-to entitle William Lyles to a conveyance subsequ' nt to the. non-payment of the 700/., on the day fixed for its payment, which should be absolute in its form. This intention, however, would have no influence on the .case, if the instrument was really a security for money advanced and to be- repaid.

It is also a circumstance which, though light, is not to be entirely disregarded, that the 20 acres, which were admitted to be purchased absolutely, were not divided and conveyed separately. It would seem as if the parties considered it as at least possible that a division might be useless.

Having made these observations oh the deed itself, the Court will proceed to examine those extrinsic circumstances which are to determine whether it is to be construed a sale or a mortgage.

It is certain that this deed was not given to secure a pre-existing debt. The connexion between the parties commenced with this transaction.

The proof is also complete that there was no negotiation between tjie parties respecting a loan of money; no proposition ever made respecting a mortgage.

The testimony on this subject is from Mr. Lyles himself -and from' Mr. Charles Lee. There is some contrariety in their testimony, but they concür-in this material' .point: Mr. Lyles represents Alexander as desirous of selling the whole land absolutely, and himself as wishing to decline an absolute purchase of m.ore than twenty acres. Mr.' Lee states Lyles as having repre-:.sented to him that Alexander was unwilling to'"sell ihore than twenty aereé absolutely, and offered to sell |he' residue conditionally.-' There is ;not, however, a' [*239] syllable in the' cause, intimating a proposition to borrow money or to mortgage property. No expression is proved to have ever fallen from Robert Alexander before or after the transaction, respecting a loan or a mortgage. He does riot appear to have imagined that money was to be so obtained; and when it became absolutely necessary to raise money, he seems to have considered the sale of property as his only resource.

To. this circumstance the Court attaches much importance. Had there been any treaty — any conversation inspecting a loan or a mortgage, the deed might have been, with more reason, considered as a cover intended to veil a transaction differing in reality from the appearance it assumed.. But there was no such conversation. The parties met and treated upon the ground of sale and not of mortgage..

It is not entirely unworthy of notice that William Lyles, was not a lender , of money, nor. a man Who was in the habit of placing his funds beyond his ‘reach. This, however, has not been relied upon, because the evidence is admitted to be complete, that Lyles did' not intend to take a mortgage, But.it is insisted that he intended to take a security for money, and to avoid the equity of redemption; an intention which a Court of Cháncerv will invariably defeat.

His not being in the practice of lending money is certainly an argument against ills intending this trans- . action as a loan, and the evidence in the cause furnishes strong reason for the opinion that Robert Alexander himself did not so understand it; In this view of the case the proposition made to Lyles, being for a sale and not for a mortgage, is entitled to great consideration; There are nther circumstances, too,'which bear strongly upon this point.

The case, in its own' nature, furnishes intrinsic. evidence of the improbability that the trustees would have conveyed to William Lyles without some communication with Robert Alexander. They certainly ought to have knojwn from himself, and”it was easy to procure the information, that Jthe money had not been paid. If he had considered this :deed as a mortgage, he would [*240] naturally have resisted the conveyance, and it is probable that the trustees would have declined making it. This probability is very much strengthened by the facts which are stated by Mr. Lee. The declaration made to him by Lyles, after having carried the deed drawn by Mr. Lee to Mr. Hooe, that the trustees were unwilling to execute it until the assent of Alexander could be obtained, and the directions given to apply for that assent, furnish strong reasons for the opinion that this assent was given.

It is also a very materia! circumstance that, after a public sale from Lyles to Conway, and a, partition between Conway ,and Charles Alexander, Conway took possession of the premises, and llegan those expensive improvements which have added so much to the value of the property. These facts must be presumed to have been known to Robert Alexander. They passed within his view. Yet ids most intimate Mends never heard him suggest that he retained any interest in the land. In this aspect of the case, too, the will of Robert Alexander is far from being unimportant. That he mentions forty acres sold to Raidvvin Dade, and does not,mention one hundred and forty acres, the residue of the same tract, cari be ascribed only to the opinion that the residue was no longer his.

This, then, is a case in which there was no previous debt, no loan in contemplation, no stipulation for the repayment of the money advanced, and no proposition for or convérsation about a mortgage. It is a case in which one party certainly considered himself as making a purchase, and the other appears to have considered himself as making a conditional sale. Yet there.are circumstances which nearly balance these, and, have induced much doubt and hesitation in the mind of some of the court.

The sale, on the part of Alexander, was not completely voluntary. He was in jail and was much pressed for a sum of money. Though this circumstance does not deprive a man of the right to dispose of his property, it gives a complexion to his contracts* and must have some influence m a doubtful case. The very fact that the sale was conditional, implies an expectation to redeem.

[*241] A conditional sale made in such a situation at a price bearing no proportion to the value of the property would bring suspicion on the whole transaction. . The excessive inadequacy of price would, in, itself, in the opinion of Some of the ¡judges, furnish irresistable proof that a sale could not have been intended. If lands were sold at 5L per acre conditionally, which, in fact,, were worth 15i. or 201. or 501. per acre, the evidence furnished by this fact, that only a security for money could be intended, would be, in the opinion of three judges, so strong as to overrule all the opposing testimony in the cause:

But the testimony on this point is' too uncertain and , conflicting to prevail against the strong proof of intending a sale and purchase, which was stated;

The sales made by Mr. Dick and Mr. Hartshorne of lots for building, although of land more remote from the town Of Alexandria than that sold to Lyles, may be thore valuable as building lots, and may consequently sell at a niuch higher price than this ground would have commanded. The relative value of property in' the neighborhood of a town depends oñ so many other circumstances than mere distance, and is sO different at different times that these sales cannot he taken as a. sure, guide.

That twenty acres, part of the tract* were sold absolutely for 51. per acre; that Lyles sold to Conway at a very small advance 5 that he had previously offered the property to others unsuccessfully 5 that it was valubd by several persons at a price not much above what he gave 5 that Robert Alexander, although rich in other property, made no effort to relieve this, are facts which render the real value, at the time of sale, too doubtful to make the inadequacy of price a circumstance of sufficient weight to convert this deed into a mortgage,.

It is, therefore, the opinion of .the Court that the de; cree of the Circuit Court is erroneous and ought to be Reserved, .and.that the cause be remanded to that Court; with directions to dismiss the bill.

Decree reversed.