The opinion of the Court was by
Shepley J.The demandant claims the premises demanded, by virtue of a deed of conveyance to himself, made by Alexander Alden, on March 15, 1841, and recorded on the twenty-eighth day of the same month. The tenánt claims under a conveyance from the same person to himself, made in the year 1833, but not recorded. There is proof, however, that he immediately entered into possession of the premises under his deed, soon built a house and barn upon the land, and has continued to reside upon it since that time. The demandant attempts to destroy this older title by proof, that the grantor, before he made the last conveyance, obtained' possession of the former deed, and held it by consent of the tenant, until he should be paid a part of the purchase money remaining unpaid. That the tenant, having failed to make that payment, consented that he should obtain the money of some other person and “ give security on the land for the money.” That he accordingly procured the money of the demandant and conveyed the land to him. That after the money was obtained the tenant was satisfied, although he soon after became dissatisfied. It appeal's also that the grantor first obtained that deed for the purpose of having a mortgage deed of the premises made to himself to secure his debt, but finding, that the tenant had before made a mortgage of the same to Bates, he concluded to retain his unrecorded deed as security for the purchase money.
That deed was not cancelled, and the title revested in the grantor, by these proceedings. Such does not appear- to have been their intention. The deed was only pledged as an equitable mortgage of the estate. The tenant had before that time mortgaged the estate to Bates, and the law would not permit *313them to destroy, in that mode, the title of the tenant, to the injury of Bates, if such had been their design. The title could not. be revested in the grantor for one purpose and yet remain in the tenant for another. If the tenant consented to a conveyance, it was only to one for the purpose of security, not to an absolute conveyance of the title. Bis declaration, made after the last conveyance, that he was satisfied, could not have the effect to destroy a title, which had never been divested.
Nonsuit confirmed.