This action was brought' to recover damages for a tort committed in the lifetime of the deceased consisting of an unlawful entry and *613trespass on certain premises owned by tbe intestate, who was known as Israel Randolph.
Several exceptions to the' admission and rejection of evidence were taken upon the trial, but they were not argued on the appeal and were abandoned.
It appears from the evidence that a deed was executed by William Y. Brady and wife to Israel Randolph, dated December fifth, acknowledged December eighth, and recorded December twelfth, 1837, for the consideration of $6,876, covering the locus wi quo. It also appeared that on the sixth day of the same month Israel Randolph, in consideration of one dollar paid by Brady, the grantor, agreed to give Brady the right of pre-emption in the lands described in the deed mentioned, and by which agreement it was provided that if Brady or his executors, administrators or assigns should, at any time prior to the expiration of three years from the first of May then following, pay the sum of money to be ascertained as provided by the agreement, then that he would duly reconvey to said Brady, his heirs or assigns by a good and sufficient deed free of all incumbrances the locus in quo. It further appears that Brady assigned this contract to Willard Leonard, by assignment bearing date September 8,1838, and recorded October ninth of the same year. It further appears that Willard Leonard was afterwards declared a bankrupt, and that upon a sale of the bankrupt’s estate the assignee in bankruptcy conveyed to the defendant all the title and interest which the bankrupt had in the lands described in the said contract of pre-emption. The premises, the locus i/n quo, were vacant lots and had not been reduced to actual possession by Mr. Randolph during his lifetime.
The chief question in the case, notwithstanding that a great many others have been presented as appurtenant to it, is whether the deed of Brady to Randolph was a mortgage or in the nature of a mortgage given for the security of a debt.
The deed upon its face is absolute, and we fail to discover in the proof any evidence showing that it was designed to be a mortgage. The pre-emption instrument is not at all inconsistent with the vesting of title. It secured to the grantor the right to repossess himself of the property upon certain conditions, all of which were entirely consistent with the vesting of the title in the grantee.
The case is somewhat like the case of Macaulay v. Porter (71 *614N. Y., 173), and therefore unlike the case of Horn v. Keteltas (46 id., 605), in which it was held that the deed was delivered to and accepted by the defendant as security for the repayment of a loan which was made. The case of Baker v. Thrasher (4 Denio, 493), is one more like the case at bar. There it appeared that an absolute deed was accompanied by a covenant reciting that the deed had been given for the purpose of paying a debt to another person, and providing that, if the grantee should find a purchaser within a year the grantee would convey to such purchaser for the amount of the debt and interest, but if the sale was not made within a year the grantee would pay for the land such additional sum as should be ascertained as therein provided; it was held that this did not make the deed a mortgage. There was no condition under which the title could ever be revested in the grantor, the title being intended to remain in the grantee’or the person to whom he should convey in pursuance of the covenant.
It was not questioned in the case at bar that the evidence did not establish the fact that the deed executed by Brady was intended as a mortgage. The pre-emption paper is in no way inconsistent with any such result. It may be inferred from the testimony that Brady, at the time of its execution, was embarrassed, which fact, doubtless, led to the sale of the property and he found a purchaser who was willing to reconvey the title and give him the benefit and advantage of any advance that might be made in the value of the property during the period for which the right to purchase extended.
Entertaining these views of the two instruments (and it must not be overlooked that the deed was executed before the pre-emption paper, and recorded before the latter was recorded) it follows that the title having vested absolutely in Randolph he was entitled to the possession of the land; and the title, the land being vacant, drew the possession after it upon well settled principles of law.
The defendant’s purchase upon the sale of the bankrupt’s effects gave him no other right than that which the bankrupt himself possessed, and he could not, therefore, enter upon the land and reclaim the title without having complied with the terms of the pre-emption agreement.
Randolph having the estate by virtue of the deed from Brady to Mm, and the premises being vacant, could maintain an action of *615trespass. Possession of land is a prerequisite to the maintenance of such an action, but where lands are unoccupied possession follows the title. (Rich v. Baker, 3 Denio, 79; Cowenhoven v. Brooklyn, 38 Barb., 9; Wood v. Lafayette, 68 N. Y., 181.)
We think these views dispose of the case and that the judgment should be affirmed.
Davis, P. J., .and Brady, J., concurred.Judgment affirmed.