I think this was a case in which the complainant was entitled to relief, and that the demurrer should have been overruled. If the agreement of the complainant of the 22d of March, 1842, had not showr. that both parties *157contemplated a nominal foreclosure of the complainant’s mortgage, for the purpose of vesting the title absolutely in Parsons, to enable him to sell and pay himself and the prior mortgagee, that foreclosure would have been conclusive between the parties,; so as to vest the title to the premises absolutely in the complainant, for his own benefit, subject only to the prior mortgage from Mumford to K Ray. But when that foreclosure is taken in connection with the agreement, it would be unjust to Mumford to consider all his equity of redemption and interest in the premises as cut off by such foreclosure and sale. And it would be equally unjust and unconscientious, to permit Mumford to consider his debt to the complainant as extinguished by the sale, so that the complainant could get no payment except what he might obtain by a sale of the premises. It is evident, therefore, that in the situation in which the premises are, they cannot be sold in parcels, as contemplated by the parties; as no prudent man would purchase a part of the farm subject to the payment of the large mortgage thereon to Ray. Taking the whole transaction together—the conveyance and written defeasance of March, 1842, not under seal, and the subsequent purchasing in of the premises at the master’s sale—-it must be considered merely as a further security of the debt due to the complainant; and that the interest of Parsons in the premises is now in the nature of a mortgage merely. The complainant’s interest in the premises, therefore, is subject to an equity of redemption, in Mumford, and is not strictly a trust which will enable the complainant to convey a good title to a purchaser acquainted with the facts of the case.
The amount justly due to the complainant should be ascertained, and a decree of foreclosure and sale of the premises should be made, containing the usual authority to any of the parties in the suit to bid at the sale, &c. The decree of the vice chancellor must therefore be reversed ; and the demurrer must be overruled, with costs. And the respondent must pay those costs, and put in his answer, within twenty days after service of a copy of the taxed bill of costs, or the complainant’s bill in this cause must be taken as confessed as against the respondent