concurring.
In order to prevent any misapprehension hereafter with respect to the exact bearing of the decision in this case, I wish to explain that it does not involve any holding that *602this deed, if infected with usury, would be available as a mortgage. The ruling touching the measure of accountability for rent, as I concur in it (and I understand this to be the view of the whole court), is, that Page, having been put in possession with some reference to this debt, either to hold the land with the debt open, or to hold it in payment of the debt, is at least entitled to the position of a creditor in possession. If the deed is not effective, then he can, in accounting for rents, fall back upon his bare possession, that possession having been acquired originally as creditor, and with the debtor’s consent. It did not need either a conveyance or a mortgage to support it and give it character; all it needed was a debt and the consent of the debtor.
After the conclusion of the concurring opinion of Bleckley, C. J., Justice Hall added:
I should have stated that, taking for the plaintiff the most favorable view of the case made by him, he is in the position of a party whose weakness has been taken advantage of by shrewd traders. He can rescind this contract and have an account taken, and it would perhaps have been better for him to have resorted in the first instance to a court of equity, in which all the rights of the parties could have been adjusted. He has sought equity, and he ought to be made to do equity ; he ought to be treated exactly as if he were in a court of equity; and if, upon this settlement that is to take place, the deed should be found to be usurious, or if it was obtained by artifices or fraudulent practices, it should be rescinded; and in that event, there should be a settlement of mutual accounts between the parties upon equitable principles. That is all I meant to say as to this question of equitable mortgage in connection with this decision. I did not intend, and do not now, to enter into a consideration of. that question.
Judgment reversed.