We cannot doubt that the deed and agreement, taken together, constitute a mortgage. Tried by the tests which are usually applied to ascertain the nature of such transactions, it will be found that the agreement contains all the essential requisites to constitute a defeasance. It was executed and delivered at the same time with the deed; it is between the same parties; it is an instrument under seal and of as high a nature as the deed to be defeated. It is therefore to be considered as if it were annexed to or inserted in the same deed, and is to be construed as containing the condition upon the performance of which the estate thereby created may be defeated. Croft v Powel, Com. R. 603. Erskine v. Townsend, 2 Mass. 493. Rice v. Rice, 4 Pick. 349. Flagg v. Mann, 14 Pick. 467, 479. Bayley v. Bailey, 5 Gray, 505. Woodward v. Pickett, 8 Gray, 617.
The terms of the instrument clearly indicate that the parties intended to create only a mortgage interest and not a conditional fee. The agreement to reconvey on the repayment of a certain sum with lawful interest thereon, shows that money *109was advanced to the grantor at the time of making the deed, as part of the same transaction; and the stipulation that if the plaintiff failed to repay said sum within the time specified, the deed was to be absolute, “ with no further right of redemption ” in the plaintiff, is quite decisive of the understanding of the parties that the transaction was a conveyance of the estate, defeasible upon the payment of money.
It was urged by the counsel for the defendant that there was no collateral undertaking by the plaintiff to pay the money, and so there was no mutuality. But this is by no means conclusive of the nature of the transaction. It is only one circumstance to be regarded in ascertaining whether it is to be treated as a mortgage or a sale with a contract for repurchase. Goodman v. Grierson, 2 Ball & Beat. 279. Flagg v. Mann, ubi supra. But it cannot operate with any force where, as in the present case, the intent of the parties to make a mortgage is clear, and the instrument, taken in connection with the deed, contains all the essential requisites of a defeasance. Decree for complainant.