The opinion of the Court was delivered by
Phelrs, Chancellor.As between the orator and Phebe Hill, it seems to- be conceded that the orator- is entitled to a decree, notwithstanding the inverted order in which the deeds present themselves. The deed from him to her, is of later date than the mortgage on which the bill is founded. But, as these deeds take effect from the delivery, respectively, the date becomes unimportant. The testimony filed in the case, shows, that both conveyances are but one transaction, and this court will give to each . its proper effect. Discarding the discrepancy of dates, which cannot affect the legal import of the transaction, it becomes the simple case of a purchase, with a mortgage to secure the purchase money. In this point of view, we must regard the orator’s deed to Phebe Hill, as enuring to his benefit, as mortgagee, and as creating a title in her, subject to the mortgage.
But it is insisted that the other defendant, Gordon, being a purchaser from Phebe Hill, may rely upon the dates as apparent of record, and is not subject to be controlled by the equitable considerations suggested. Without stopping now to enquire, whether a bona fide purchaser, for a valuable consideration, might shield himself from the obvious equity of the orator’s claim, by the inversion of dates, as apparent upon the town record, it is sufficient to say, that nothing appears upon his answer, or the proofs in the case, which entitles the defendant to that character. As the mere assignee *292of the equity of redemption, he stands on no higher ground , .... m • , • , ■ . than his assignors 1 o entitle him to the superior equity, it must appear that he was a bona,fide purchaser, deceived by the record, ánd that he páid a valuable consideration.
Upon both these points his answer is altogether unsatisfactory. He dóeS ndt deny full knowledge Of the equity of the orator’s claim, nor indeed, that he was fully aware of the facts of the case, as here exhibited. He swears, that, at the time of taking his deed, “ he did not know or suppose that the said orator had any uncancelled mortgage upon said premises.” “ That he then understood and believed* ihat* prior to that time, he the said orator had, by deed, conveyed all his interest in said premises, back to the said Phebe Hill.” Now all this is consistent with the supposition, that he Was fully acquainted with all the circumstances of the transaction, and relied upon what he considered a blunder- in the transacting of the business, as defeating the mortgage. Any man, who could convince himself that such would be the effect of the anachronism in the date, could swear to as much. If such, indeed, were the effect, then the plaintiff had no longer an “uncancelled mortgage,” and had* without doubt* “ conveyed back” his interest in the premises.
As to any consideration paid, or agreed td be paid, for the assignment, the answer is silent. We are, therefore, at liberty to treat it as purely voluntary; Wé may gb farther, and consider the whole transaction in relation to this assignment, as a mere devise to give additional force to an accidental legal advantage, (as they viewed it) which these parties could not, in equity, nor in common honesty, insist upon; and we may do this without impugning the answer.
There is nothing,, therefore* in the case Which would place Gordon on better footing than his co-defendant. He took the equity of redemption precisely as his assignor had it.
As to the attempted set-off, there are two very satisfactory reasons why it cannot be allowed.
First, it is a proper subject of a cross bill, and not of an answer ; and secondly, it does not appear that the orator was in any wise responsible for the incumbrance.
Decree for the orator.