The complainants holding a mortgage, made in the usual form to secure the payment of one thousand dollars, seek satisfaction, by the ordinary suit in this court. The defence is, that Jeremiah Lansingh the mortgagor and David Schuyler the mortgagee, agreed with each other, that the mortgage should be taken and held by Schuyler, only as a security for the reconveyance of another lot of land, which Schuyler had conveyed to Lansingh, and the defendants claiming the benefit of such an agreement, of*134fer to reconvey the other lot. This agreement is not proved by any writing ; and is proved, only by oral testimony.
Can oral proof of this agreement, be received ? The general rule ;Sj that oral testimony is not received to contradict or vary a written instrument; and the exceptions to this rule, are, that such testimony is received in cases of fraud, mistake or surprise. 1 Johns, ch. 231. 339, and 425.
This seems obviously, not a case either of fraud, mistake, or surprise. The agreement alleged, is, that the mortgage was not what it purports to be, a security for the payment of money; but a security that another lot of land, which had been conveyed by the mortgagee to the mortgagor, should be reconveyed. No time was limited for the reconveyance; and the agreement alleged, is a special contract, entirely different from every thing which Lansingh and Schuyler have expressed and stipulated in their written instruments. The case is altogether unlike any of those which have been treated as frauds or mistakes.
The parol agreement contradicts the terms of the mortgage, and varies essentially, its effect. If this verbal agreement could prevail, the transaction between the mortgagor and the mortgagee, would not be a mortgage for the payment of money, according to the language of the instrument; but it would become a special contract of a very different nature. It would be an executory contract, for mutual reconveyances, at some time and in some manner, which do not appear. When this case is compared with the cases found in the books, it most resembles those in which attempts have been made to obtain a specific performance of a parol contract. To give effect to this agreement, would be nothing less than to destroy the written contract, by substituting a verbal contract in its place ; and if a verbal agreement like this, may take the place of written instruments, it is not easy to conceive any case, in which a written contract might not be subverted or varied by oral testimony. The cases in which oral testimony is received to contradict or vary a written instrument, have been sufficiently extended ; and no court is now at liberty to make any farther encroachment on the statute of frauds, or upon the salutary *135rules of the general law, which exclude oral testimony offered to defeat or vary instruments in writing.
If this verbal agreement is inadmissible, it is not necessary to discuss or decide any of the other questions which have been raised in the cause. My opinion is, that this case is governed by the general rule, and is not within any of the exceptions concerning the admission of oral testimony to defeat or vary the effect of a written instrument; and the complainants must liave the usual decree.