After advisement, the following opinion was delivered :
By the Chief Justice.The question presented in this case is, whether the deed from Henry Eckford and wife of certain real estate in the city of New-York, hearing date the 14th August, 1826, to Sarah Drake, in trust for her daughter Janet, should be regarded as an absolute conveyance of the property in satisfaction of an indebtedness to the estate of Doctor Drake, or only in the light of a mortgage, intended as collateral security for the same, and subject to redemption on paying the debt and interest.
The bill was filed by the personal representatives of Mr. Eckford against Janet, and her husband (Geo. C. DeKay,) for the purpose of impressing upon this instrument the character of a mortgage—thereby enabling them to redeem and disencumber the property, which is admitted to be very valuable, so that it may be brought into the assets of the estate for distribution under his will. It charges, that the instrument upon its face, and without reference to extraneous facts and" circumstances, is, in judgment of law and equity to be deemed a mortgage, and designed simply as collateral security for the indebtedness therein recited : and further, that it was so in fact intended by all the parties at the time of its execution, and so regarded by them ever afterwards, and not as an absolute conveyance : all which is fully denied in the answers ; whereupon proofs have been taken which are before us.
The whole case may be resolved into two points : First, As to the true character and legal import of the instrument as derived from an examination of its contents ; and Second, As derived from the extraneous facts and circumstances detailed in the case.
I. There is but one feature, or circumstance, appearing upon the face of the instrument, that can at all distinguish it from the ordinary form of an absolute deed, that is, the particular description of the nature and amount of indebtedness of Mr. Eckford to the estate of Doctor Drake, as constituting the chief consideration for the conveyance. Every other part is in the usual form. A debt being thus *38admitted to be due, and nothing appearing upon the face of the instrument to shew, in terms, or by fair construction, claimed) that the lands were conveyed, or intended to be-conveyed, or received and accepted, or intended to be received and accepted in payment and satisfaction of the same, it is insisted for the appellants, that the relation of debtor and creditor still subsisted after the execution and delivery of the deed, the same as before ; that the debt continued in full force, unextinguished, there being no evidence that the property was intended to be taken in satisfaction ; and hence, of necessity, the instrument should be regarded simply as security in the nature of a morrtgage, subject to redemption by the debtor or his legal representatives.
The whole argument, so far as we are pressed to collect the character and import of the instrument from its contents, turns upon a consideration' of the question, whether an absolute conveyance of real estate" from the debtor to-the creditor, with an express recital, that it was given in consideration of a particular debt due, and an unqualified acceptance of the latter, is to be deemed in law prima facie evidence that the property was given in payment and satisfaction of the same. If it is, then there is an end of the argument upon this point of the case. The counsel for the appellants hold the negative, and insist that the deed thus accepted by Mrs. Drake, does not operate as payment, unless there is superadded an agreement to receive it with that intent; that where any thing besides money is received in satisfaction, the onus lies on the debtor to show it affirmatively; and that as no such intent is indicated either on the face of the deed or in the proofs, it should not be so regarded. I admit the rule to be as stated, that where any thing other than that, which may be tendered in payment of the particular debt, according to the contract, is received by the creditor, satisfaction cannot be predicated short of an agreement or assent to that effect. Regularly, says Pothier, a payment can only be made of the *39thing due ; and a debtor cannot oblige his creditor to accept of any other thing in lieu of what he owes him. 1 Vol. Treat, on law of Cont. Evans’ ed. p. 494. But the difficulty here in the whole of this reasoning, I apprehend, lies in the fact that the deed before us imports on its face prima facie, the requisite assent; the conveyance purports to have been made for and in consideration of the debt, and has been accepted as such by the creditor. The debt is the purchase money of an estate, bargained and sold, of which the conveyance itself affords the highest proof; it is a deed of bargain and sale, one of the most common assurances in transferring the title to real property, and always affords of itself the evidence of the contract between the parties. The particular recital of the indebtedness as the consideration for the land conveyed, so much relied on by the counsel for the appellants, has always struck me as one of the strongest circumstances in the case, to show that the actual understanding and intent of the parties corresponded with the absolute character of the instrument ; and that they meant, what in terms they said, a deed, and not a mortgage.
Had the consideration been stated in the usual way, before the debtor could have insisted that it was received in payment of this particular debt, he must have shown the fact aliunde; he must have proved, that it constituted the consideration for the sale by a receipt, or some other writing taken at the time, or by parol. Now, all this he has stated at large on the face of the conveyance, and Mrs. Drake, by accepting it, has thereby admitted that the property has been received and accepted by her in lieu of the indebtedness ; that this, with the $10 mentioned in the deed, constituted the purchase money paid for the same. Mr. Eckford, the debtor, has also, by this recital, guarded against any difficulty, present or future, in the way of proving the particular indebtedness to have been satisfied by the sale and conveyance, for he has made it matter of record.
*40Both parties having thus deliberately and solemnly admitted, that the land was conveyed and accepted, and to be conveyed and accepted, in consideration of money due, it seems to me impossible to argue from the face of the deed itself, that the one was not intended, and has not been taken, in satisfaction of the other. Certainly, if a debt can be extinguished by an equivalent in property, the debt in question, prima facie, at least, has been so extinguished. If the parties, debtor and creditor, may stipulate for some thing in lieu of what is due by the terms of the contract in payment, such stipulation has not only been made, but the equivalent received. All this is palpable on the face of the conveyance.
I am satisfied there is nothing in the form or language of the instrument that would justify the court in declaring it to be a mortgage ; that, on the contrary, the terms indicate an absolute conveyance of the property, and which
prove the recital operated in extingishment of this particular debt.
II. Then as to the considerations extraneous the deed, arising upon the pleadings and proofs, going to show that the instrument was intended simply as a security or mortgage.
It is said that Janet, the daughter, being under age at the time, was not bound ; that satisfaction cannot be predicated in respect to her, as she was incapable of assenting and that the debt, therefore, necessarily subsisted and continued after the execution and delivery of the conveyance. It is admitted, so far as she was concerned, the deed was blank paper ; and if the question at all depends upon her assent before she arrived at age, the argument for the appellants is unanswerable. But I do not comprehend in what way this fact can be material. I regard her as being entirely out of the case, uninterested in and unconnected with the instrument so far as respects the question involved. She does not become a party concerned until she has arrived at full age, when she became competent to ratify *41the act of her guardian and executor, whatever that might be. If, then, on inquiry, she ascertained that a deed of certain lands had been taken in lieu of the estate left her, she may affirm it; if a mortgage had been taken to secure it, she may do the same. So far as the character of the instrument is concerned, the question goes back to the acts and doings of the executor and the debtor. Was it intended by the parties to its execution to be a deed or a mortgage % They were the only parties concerned in the transaction; were competent to impress either character upon it; and which ever it may be, it has not been even in the power of the daughter to change it. She might have repudiated the act, whether it resulted in a deed or mortgage, but she cannot change the character of the instrument, be it the one or the other.
It is also said, that the property conveyed was not at the time equal in value to the debt; and that, therefore, it is unreasonable to suppose or urge, that it was intended to be received by Mrs. Drake as an equivalent; and equally so to assume, that it was taken in anticipation of an enhanced value before the daughter came of age. The precise value of the property at the time of the deed, upon the proofs before us, is rather matter of conjecture than of fact. Neither party seem to have regarded it as a circumstance of weight in determining the question to be litigated before the court. We have no sufficient data to enable us to arrive at any thing like a satisfactory judgment concerning it. But even if conceded not to have been an equivalent upon a fair valuation, I do not see how it could bear with any decisive force upon the question as to the character of the conveyance. Mrs. Drake may have thought it the best arrangement she could make under the then existing circumstances and condition of the property of her father, for herself and child. And even granting that she may have been mistaken or misjudged, we must still take the transaction with the character impressed upon it by the act of the parties at the time.
*42The learned counsel for the appellants in the argument did not urge upon us, that the proofs in the case, indepenGently of the instrument itself, and the condition and relati°n °f the parties to and interested in it, afforded any evidence of an actual intent and understanding, that it was executed and delivered, in point of fact, as a security for the debt. I shall, therefore, merely observe as to them, that they are too indefinite and general to be relied on in any case by a court of justice to affect the legal character and import of an instrument in writing, whatever may be its terms; much less, where it carries upon its face a clear and explicit indication of the meaning and intent of the parties.
I shall also abstain from the expression of an opinion, whether this property shall be brought into the assets of the estate of Mr. Eckford in the final distribution, as a part already received by the grand-daughter within the meaning of that clause of the will which requires the executrix and executors to take into the account advances already made, with a view to equalize the distributive shares. That question can properly arise only upon a construction of the will itself, and any opinion here expressed would be premature and obiter.
Upon the whole, upon any view I have been able to take of the case, I feel clear in the conclusion to which the Chancellor arrived, and shall vote to affirm his decree.
On the question being put, Shall this decree be reversed1 The members of the court divided as follows:
In the affirmative: Senators Hopkins, Rhoades and Works—3.
In the 'negative: The President of the Senate, the Chief Justice, and Senators Clark, Denniston, Dixon, Hawkins, Humphrey,' Hunt, Hunter, Johnson, H. A. Livingston, Nicholas, Platt, Root, Scott and Verplanck—16.
Whereupon the decree was Affirmed.