A party holding a legal promise to pay money, to secure the payment of which the debtor has also given a mortgage of real estate, may undoubtedly proceed for the recovery of his debt by a personal action for the same; but the objection which arises in the present case is as to the sufficiency of any competent evidence to establish such independént promise to pay the plaintiff any sum of money. Applying the well established rules of law to the case, and confining the legal obligations of the parties to such as arise upon the written instruments executed by them, no such promise is shown. The parties chose to give a different character to their dealings than that of a promissory note secured by a mortgage. On the contrary, the plaintiff gave up the note previously held for one thousand dollars of the alleged indebtedness, upon receiving the deed of the defendant of a parcel of land, and took no written promise from the defendant to pay any portion of that sum, or the remaining one thousand dollars that was paid by him. He received an absolute title to the premises; and gave back a stipulation securing to the defendant, if he should request it, a reconveyance of the same, upon his paying back two thousand dollars and six per cent, interest within two years.
The proposed oral evidence was properly rejected as incompetent. Flint v. Sheldon, 13 Mass. 446. Lincoln v. Parsons, 1 Allen, 388. Howe v. Walker, 4 Gray, 318. Goodrich v. Longley Ib. 379.
The plaintiff still holds the title to the real estate, and has, as it would seem, a perfect title thereto. No particular time was stated in which the defendant agreed to repay the money advanced to him, and the only stipulation having any bearing in reference thereto is that found in the plaintiff’s contract binding himself to reconvey the premises, if this sum with interest should be paid to him within two years. This can hardly be deemed a stipulation for a loan for two years, but rather a security that the party should be restored to his estate, if such sum was paid within that period. If the plaintiff was entitled to charge the defendant for money had and received, by reason of this payment of two thousand dollars, It would be questionable whether *366the claim would not be held barred by the statute of limitations. It would be so, considering the indebtedness to have accrued at the time the money was advanced and the deed taken. The oral evidence offered, if admitted, would only show a loan of money without any promise to repay it at a future day named, leaving the time of payment to the common law rule in such cases, as a debt due on demand. We think that upon the proper effect being given to the written instruments by which the parties have declared their purposes as to this conveyance, and the payment of money by the plaintiff, they fail to establish a right to maintain the present action. The oral evidence being properly excluded, the exceptions must be overruled.
Exceptions overruled.'