The opinion of the Court was delivered, January 9th, 1882, by
Green, J.In this case the learned Court below left to the jury, with the most precise and emphatic instructions, the question whether the transaction between Perry Shreve and Wheeler was a contract of sale or a loan. The jury were told that if they found it to be in reality a loan, then in legal effect the papers executed and delivered between the parties constituted a mortgage, and as the paper thus treated as a defeasance was unrecorded, it would be an unrecorded mortgage, by which Cooper would not be bound unless he had notice. If he -had notice he would be bound by it, and must pay to Wheeler the remainder of the mortgage-money. In this view of the legal and equitable rights of the parties there was clearly no error, nor is it claimed that there was, on the part of the plaintiff in error. The jury has found the facts against the defendant.. Under the charge they must have found either that the transaction was in reality a sale, as the form of the papers would indicate, or if it was a mortgage, that Cooper had notice of it. As this finding in either aspect involves only a question of fact, and was based upon sufficient testimony to support it, the matters assigned for error are extremely limited in number and much confined in their character. There are but two of them. The defendants by their fifth point asked the Court to say that there was no evidence that Cooper had notice, at the date of entering his judgment, of the agreement between Wheeler and Perry Shreve in relation to borrowing money and accepting the deed from Israel Shreve.
This the Court declined to do, but left the question to be determined by the jury. In this we think there was no error. The deed from Israel Shreve and wife to Wheeler of November 28th, 1868, in express terms passes the legal title. It was in the ordinary form of a deed in fee simple without condition or qualification, and on the face of the papers Israel Shreve was at that time the unquestioned owner of the legal title.
The next paper, in the course of the title, was a written contract, dated November 30th, 1868, signed by Wheeler and Perry Shreve, stipulating in terms for the sale and conveyance by the former to the latter of the land in dispute, upon *296the payment of specified sums of money at definite times. On the part of the defendants it is alleged that these sums of money, instead of representing the purchase-money of the land upon an independent contract of sale, represented in reality a loan of $1500 previously made by Wheeler to Perry Shreve, and the interest thereon, and hence that the agreement of sale of November 30th, 1868, constituted in legal effect a defeasance to the absolute deed from Israel Shreve to Wheeler, dated November 28th, 1868. Supposing this to be so, was there any evidence in the case that Cooper, the judgment creditor of Perry Shreve, had notice, at the time of entering his judgment, of this alleged contract of defeasance ? That is the only question raised by the first assignment of error. Israel Shreve, 3d, the grantor in the deed to Wheeler, testified as follows:
(His Honor then read the testimony of Israel Shreve, 3d, and Silas Wheeler upon this point and. the receipts.)
Mr. Cooper, being a party to the suit, and most essentially interested in its result, made no denial of the foregoing testimony.
In this situation of the evidence it would have been manifest error for the Court to say there was no evidence [notice ?] of the agreement between Wheeler and Perry Shreve in relation to borrowing money and accepting the deed from Israel Shreve. Plere was direct and uncontradieted testimony to the effect that Cooper had, as Perry Shreve’s agent or friend, paid money on the very contract which is alleged to create, in part or in whole, the defeasance relied upon. There was clearly sufficient notice to put Cooper upon inquiry, if not actual knowledge, of the contents of the contract. Whether the agreement be treated as a contract of sale, or as part of a paid contrivance for a loan, is immaterial, for in either event Perry Shreve’s title was not to be completed till the money was all paid, and that was sufficient to charge Cooper with the obligation of such payment if he took the title after knowledge of the written contract. With the credibility of the witnesses we have nothing to do, and suggestions on that subject are out of place here; the meaning, the truthfulness, and the effect of the testimony, as applicable to the true relations of the several parties, were exclusively for the consideration of the jury.
As to the second assignment we can see no error in the statement by the Court that “ Cooper’s right begins probably when he entered judgment,” for the reason that there is not a particle of evidence on this record to show that his debt was contracted at any time before the judgment was entered. It is entirely possible that the judgment was entered imme*297diately after the debt was contracted, and there is nothing in the case upon which we can base a contrary assumption. The language of the judge, as quoted in the specification, is qualified by the use of the word “ probably,” and therefore it is not a positive assertion as to the date of the inception of Cooper's right, though it might well have been so under the evidence. We do not think the remaining matter of this specification is fairly subject to the criticism made by the learned counsel for the plaintiff in error. The Court did not say or iutimate that the recording of the deed from Israel Shreve to "Wheeler was notice of the defeasance, nor of anything more than the mere fact of the deed itself. On the contrary, in the answer to the defendant’s seventh point, and again in the general charge, the Court distinctly told the jury that the record of the deed was no notice whatever to Cooper of the parol mortgage, and that Cooper was in that event not bound by anything appearing on the record. This, we think, was a correct and sufficient expression of the rights of Cooper in the premises, and therefore, seeing no error in the record,
The judgment is affirmed.