dissenting. When this case was here before it was held that upon the plaintiff’s own showing, the land for the price of which he had sued was deeded by him to the defendant by way of security, and that consequently his action, which assumed that it had been sold to the defendant, had no basis. The case went back for a new trial, and the plaintiff, being then apprised of the defect in his case? has changed his evidence, and by testifying in flat contradiction of himself, has succeeded in obtaining a verdict. So plain a case of bending the facts to the exigencies of the controversy is probably seldom seen.
But I think that his evidence, taken in connection with that of the notary, still shows the case to have been one of security, and that upon all the facts shown by himself there is no room for any other conclusion. I think the plaintiff was entitled to an instruction to that effect. I also think that the legality or illegality of the transactions which led to the giving of the deed was not immaterial as the j’udge in his instructions assumed it was. If the transactions were legal, the parties were jointly liable for considerable debts, which the defendant undertook to pay off for both; and the improbability of his having made such an arrangement as the defendant undertook to set up would have been vastly greater than if no such indebtedness existed. It would not have been surprising if in the minds of the jury the whole *281case would have turned upon the view they took of the legality of those previous transactions. The judge should have given them specific instructions on the subject.
I think the case should go'back for a new trial.