majority">By the court.

The only question before us is, whether the deed from Wheeland to Swartz, is to be considered as a mortgage, or as a defeasible sale, subject to re-purchase, within the limited period of 2 years and Ii days?

There are certainly such words in it as are commonly found in mortgages. The reservation of the equity of redemption is couched in terms sufficiently apt and technical; and it must be deemed a mortgage, if it was not made in contemplation of an eventual arrangement of property. Powel on Mortg. 18. To make it a conditional sale, lb. 50, the intention of the parties at the time of contracting, must be clearly proved, or necessarily implied from the circumstances attending it.

Of this, it will be admitted, there is no direct proof. What then are the circumstances, from which this necessary implication is to arise? Ou examination, they will be found to be very different from those which appeared in Bell’s lessee v. Fisher, stated by the defendant’s counsel.

Wheeland is said to be a weak man, by one witness of credit. His step-father on the 8th February 1774, owed him 26I. 8s. 2d. his distributive share of the personal estate of his father, and it is not pretended that he has paid it. So that on the loan of *501. in April following, Swartz really accom- [-*503 modated him with only.231. ns. rod. Would this lat- L ter sum be equivalent for 43 acres of land, to which Wheeland was then immediately entitled, and to 2acres in reversion after his mother’s death, when those lands were actually worth 40s. per acre? It was not one fourth part of their honest value, and though mere inadequacy of price, is not a ground for a Court of Equity to vacate an agreement, yet it will shew the true intention of the parties; and in some cases will shew a command over a necessitous man, which may amount to a fraud.' 2 Bro. Cha. Rep. 175. 1 Bro. Cha. Rep. 9, 23.

No stress can be laid on Swartz having the possession; because he received it on his intermarriage with old Wheeland’s widow, during the minority of the children; and it is therefore distinguishable from mortgages in common cases, where the morgagor usually retains the possession. Nor can any reliance be placed on the instrument’s containing no covenant for payment of the sum borrowed, or stipulation for the payment of interest, as has been properly observed by the plaintiff’s counsel.

But it has been said, there has been great delay in the payment of the money. Swartz cannot complain of not being *583paid in depreciated paper, during the war. And we have a law, passed 12th March 1783, which suspends the act for limitation of actions between the 1st January 1776 and 21st June 1784, a period of nearly eight and a half years. So that adding this interval to the time when the money was to be paid, there is about seven years delay of payment. Surely this length of time cannot be said to be unreasonable; but if Swartz had wanted the money and not the land, he night have compelled the payment at an early day, by suing out his scire facias. Even in England, the redemption of a mortgage will be decreed within 20 years after possession. 2 Vent. 340. 1 Equ. Ca. Ab. 314. 4 Burr. 1963.

Cited in 9 S. & R., 447.Messrs. D. Smith and Walker, pro quer.Messrs. Hall and D. Eevy, pro def.

The improvements made „by Swartz cannot convey an equity, as he perfectly knew the circumstances under which his deed was obtained; and besides he must be supposed to have an eye to his own convenience therein, as he was entitled to one third of the lands in right of his wife, during her life, and to six tenths of the whole, which he purchased from the brothers and sisters of the lessors of the plaintiff.

The patent so far from operating in the defendants’ favour, makes against him. For there appears to be a concealment of the lessor being one of them, as it recites a release from six of the children only. He appears to have studiously avoided shewing his deed in the land office.

*5841 *Upon the whole, so far from the circumstances J evincing, that the deed was intended as an absolute conveyance, the contrary appears from them; and we see no reason for departing from the old maxim in equity, that an estate cannot be a mortgage at one time and an absolute purchase at another. 1 Vern. 8, 33, 190, 488. 1 Wms. 268.

Verdict pro quer. fjor two undivided tenth parts of the lands.

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