after stating the case, delivered his opinion.
The exceptions to the Judge’s charge are, 1st, that he submitted to the jury a matter which was merely a point of law, viz. whether the writings operated as a mortgage or not. 2d. That in the opinion delivered to the jury, he erred in point of law.
1. If the question whether mortgage or not, depended solely on the writings, it would have been purely a matter of law, and ought not to have been left to the jury. But that is not the case. The intention of the parties is to be discovered not only from the writings, but from extraneous circumstances. The value of the property is an important consideration, and so are the acts and declarations of the parties. Cases of this kind are generally decided in Chancery, and the chancellor receives evidence of matters not appearing on the writings. We have no chancery. The court and jury stand in the place of the chancellor. Evidence is given to the jury, who decide the whole matter under the direction of the Court on points of law. In the present case, parol evidence having been given, the Court could do no otherwise than submit the cause to the jury, giving them their opinion in matters of law.
2. The District Court were of opinion that it was a mortgage. The value of the property (amounting to four times the sum paid) weighs strongly in favour of that opinion. And if Mitchell was accurate in saying, that he explained to the parties that the writings would -operate as a mortgage, there can be little doubt on the subject. The great objection of the defendant is, that there was no covenant to pay the money, and therefore he supposes there could be no action to recover it; which proves that an actual sale was intended, on condition that the property should revert to the vendors, if the purchase money was repaid in three months. But to *504sav that there was no remedy for recovery of the money, is begging the question, for if it be a mortgage there1 is a remedy. We have no mode of foreclosing a mortgage. The mortgagee may recover in an ejectment; but the only way in which the money can be recovered, is by sci.fa. under the act of 1705. This is a proceeding against the mortgaged premises only, and not against the person or the general property of the mortgagor. After judgment a levari facias issues, by virtue of which the mortgaged premises are sold. Whether the mortgage consists of one or two writings, can make no difference. The nature of the case, whatever it may be, is stated in the sci. fa. But it is said that the deed of defeasance belongs to the mortgagor, and is not in the possession of the mortgagee, and therefore cannot be set forth in the sci.fa. This is a false inference. If the mortgagee uses common care, he will have the defeasánce recorded, or keep a copy of it. No difficulty on that point was found in this case. If the defendant had refused to produce the writing of defeasance after notice, the contents might have been proved by Mitchell, who drew it. It was not denied by the counsel for the defendant, that a mortgage may be made by an absolute deed, accompanied with another deed containing a defeasance in case the money is paid by a certain time, as well ás if the whole were contained in one deed. And under all the circumstances of this case, it appears to me that the District Court were right in considering both writings taken together as a mortgage.
Another objection is made to the charge of the judge. It is said, that he erred in charging the jury, that the plaintiffs were inti tied to recover, in case they should think that the rents and profits received by the defendant up to the time of. trial, (over and above the taxes and reasonable expenditures for repairs &c.) amounted to a sum equal to 200 dollars with interest from the date of this deed of conveyance. The defendant contends that the plaintiffs ought to have brought the money into Court. In this I cannot agree with him. For what purpose should the money be brought into Court, if it was already in the hands of the defendant? How would the matter have stood, if the plaintiffs had filed a bill in Chancery? The defendant would have been ordered to account for the rents and profits, and if those rents and profits had equalled the principal and interest of the debt, it *505would have been decreed that he should execute a reconvevance. In ordi.r to do justice between the parties, it was necessary that the account should be brought down to the time of trial. Whether the defendant should be burthened with the costs of suit, would depend on circumstances. If the money was really tendered in three months, or if the rents and profits equalled the amount of principal and interest before the suit brought, the costs ought to- fall on the defendant. But neither party turned its attention to, nor prayed the Court’s opinion on the matter of costs particularly, and therefore no particular mention is made of them in the charge. Upon the whole, I am of opinion that the plaintiff in error has not supported any of his exceptions, and therefore the judgment of the District Court should be affirmed.
Yeates J. being unwell, gave no opinion. Brackenridge J. concurred with the Chief Justice.Judgment affirmed.