Peugh vs. Davis. tion in said squares, and to indemnify and save harmless the defendant against said suits, and generally to warrant and defend the title to the lands. That defendant accepted this proposition; and that an instrument to that effect was prepared by Wm. H. Ward, and signed and delivered to defendant, who then paid to complainant the agreed sum of $500, taking a receipt for $2,000 in full for the said purchase, which is alleged to be the cash-value of said property in the years 1857 and 1858; and that defendant, by virtue of such instrument, became the exclusive and absolute owner of said squares of ground. That since that time he has held possession of the same, and has paid from time to time the taxes levied thereon, including a large special tax for grading and paving, and has discharged the duties of ownership with the knowledge and acquiescence of the complainant, who has never pretended, till the filing of his bill in this case, that he had any interest whatever in said squares of ground or either of them; and that the present value of said lands is not over $10,000. The deed and instrument, in the form of a covenant, dated February 9, 1858, are made exhibits to the answer, together with the receipt above mentioned. The bond and receipt are as follows: "Whereas the undesigned, Samuel A. Peugh, of the city of Washington, in the District of Columbia, having heretofore sold and conveyed to Henry S. Davis, of the said city, two certain squares of ground in said city, the same being numbered nine hundred and ten (910) and nine hundred and eleven (911) in the said city-the said sale and conveyance having been by the said Peugh made with the full assurance and promise of a good and indefeasible title in fee-simple, though the said conveyance contains only a special warrantythe said conveyance to said Davis bearing date on the fourth day of March, A. D. 1857, and being recorded on the seventh day of September, A. D. 1857. "And whereas the title to the said squares, so conveyed as aforesaid to said Davis, having been now questioned and disputed, the said Peugh doth now, for himself, his heirs, executors, and administrators, promise, covenant, and agree, to and with the said Henry S. Davis, his heirs and assigns, Peugh vs. Davis. in the manner following: That is, that he, the said Samuel A. Peugh and his heirs, shall and will warrant and forever defend the said squares of ground and appurtenances, as conveyed as aforesaid, unto the said Henry S. Davis, his heirs and assigns, from and against the claim or claims of all persons whomsoever. "And, further, that he, said Peugh, and his heirs, executors, and administrators, shall and will pay and refund to said Davis, his heirs or assigns, all and singular the loss, cost, damage, and expenses, including the consideration in said deed or conveyance which, or to which, the said Davis, his heirs or assigns, shall lose, incur, pay, or be subject to by reason of any claim or litigation against or on account of said squares of ground, or either of them. "And for the full and faithful observance and performance of all the covenants and agreements aforesaid, and for the payment of all the sum or sums of money as therein provided, in the manner prescribed as aforesaid, the said Samuel A. Peugh doth hereby bind himself, his heirs, execu. tors, and administrators, and each and every of them, firmly by these presents. "In testimony whereof the said Samuel A. Peugh doth hereunto set his hand and seal on this ninth day of February, in the year of our Lord one thousand eight hundred and fifty-eight. "[L. S.] S. A. PEUGH. "Signed, sealed, and delivered in the presence of― "FRANCIS MOHUN. "WM. H. WARD. "WASHINGTON, D. C., February 9, 1858, "Rec'd of Henry S. Davis two thousand dollars, the same being in full for the purchase of squares Nos. 910 and 911, in the city of Washington. "$2,000. S. A. PEUGH." There was a great deal of testimony taken on both sides in regard to the value of the lands in controversy during the years 1857 and 1858; the complainant contending that Davis paid an inadequate price for the same, which was fatal Peugh vs. Davis. to his title in his relation of mortgagee. The only portion of the testimony on the value of the land is sufficiently referred to in the opinion of the court. It is also in evidence that Davis denied Peugh's right to the land after he recorded the deed; that after that he considered the land as absolutely his own, and so informed Peugh, and told Peugh, when he demanded the $500, that his conduct was dishonest, and that his attempt to extort $500 from him was unjust, and not consistent with fair dealing. The deposition of the complainant tends to sustain his bill, and that of Davis to sustain his answer. George Simms and Margaret Simms, who were examined in behalf of the complainant, state that in 1865 they rented the premises from Davis, and heard him say that Peugh owed him $2,000; and Richard Hill testified, on the same side, that in the fall of 1862, at the corner of Fourteenth street and Pennsylvania avenue, he heard Davis hail Peugh about a $2,000 loan, and that Davis on that occasion told Peugh he had promised two and a half per cent. interest per month thereon, and said if Peugh would pay that interest he would give Peugh a deed in fee. On the part of the defendant, William H. Ward testified that the bond above set forth was in his own handwriting, signed by S. A. Peugh, and witnessed by Mohun and himself; the receipt annexed is also in his handwriting, and signed by S. A. Peugh; he recollects date from that on the paper; Peugh and Davis came into his office together, and stated that Peugh had previously made conveyance of squares 910 and 911 to Davis; that that conveyance was in effect a mortgage, and the matter was then to be settled by a further advance, and sale to be finally completed; he wrote above paper while Peugh and Davis were in his office, and it was then and there signed, he believes; he drew the deed and paper by direction of both parties, and from reading the paper he concludes it was also done to indemnify Davis against Wiltberger's suit then pending, as well as purchase-money for the property; he thinks a copy of first conveyance was shown him at the time, and that Mohun was in his office when he drew the deed and receipt. By his saying "there would be a further advance, and the Peugh vs. Davis. sale was finally to be completed," he meant that he understood Davis was to pay an additional sum of money to complete purchase of property named in the agreement; doesn't recollect that Davis said to Peugh that their relation of mortgagor and mortgagee was still to continue; in his recollection, the transaction was a final sale of the property; he has no recollection of any interview of his with Peugh, wherein Peugh asked him whether he (Peugh) "would be safe in executing said paper under all circumstances, and whether Davis could or would in any way take advantage of it to the injury of plaintiff;" he has no recollection of having seen Peugh in relation to the deed and receipt, except when the paper was prepared; doesn't recollect any consultation with defendant in relation to papers before the parties met at his office. Joseph H. Hilton testified that he was present at the time the two Simms swear about, and that he didn't hear any loan of $2,000 from Davis to Peugh spoken of; that the room was small, and he could hear all that was said. It appears that the defendant took entire possession of the property in 1865, and has retained it and controlled it ever since. The case was heard in September, 1874, by Mr. Justice HUMPHREYS, and a decree passed dismissing the bill. Thereupon the complainant prosecuted this appeal. Richard T. Merrick and Edwin L. Stanton, for complainant cited Hinkley vs. Wheelwright, 29 Maryland R., 341; Villa vs. Rodriguez, 12 Wall., 323; Morris vs. Nixon, 1 How., 118; Russell vs. Southard, 12, 139. John E. Norris and W. D. Davidge, for defendant, cited— 2 Wall., 94; 15 How., 56; 17 Pick., 214. Mr. Justice MACARTHUR delivered the opinion of the court: The first question to be determined is whether the two instruments in writing, executed and delivered by the complain. ant to the defendant, operate as a security for the payment Peugh vs. Davis. of the $2,000, or as an absolute conveyance of the property. The complainant offers parol testimony for the purpose of showing that the deeds, although absolute on their face, were really intended as a security for money loaned. The rule admitting such evidence for this purpose is now well settled, and was not questioned on the hearing of this case. The evidence upon the subject consists of the pleadings, the deeds, and the testimony of one or two witnesses. The instruments are absolute on their face, and are both in the record, and are in support of the case set up by the defendant. The allegations in the bill, that they were intended only as a mortgage, are positively denied in the answer. The only witnesses, except the complainant himself, who testify to anything from which the court can infer, at the time of the second instrument, the transaction was a. loan, are George Simms and Margaret, his wife, who both state that Davis said that Peugh owed him $2,000, loaned on the squares. They are, however, contradicted by Joseph H. Hilton, who was present at the same interview, and who testifies that no such statement was made. Richard A. Hill says he knew the parties, and that in the fall of 1862, at the corner of Fourteenth street and Pennsylvania avenue, he heard Davis hail Peugh about a $2,000 loan, and that he said to Peugh he had promised two and a half per cent. interest per month thereon, and that if Peugh would pay that interest he would give Peugh a deed in fee. There is no other fact or circumstance in the case going to show that the last instrument was effected upon any arrangement that it could be a mortgage. William H. Ward, who was a witness for defendant, states that the instrument is in his handwriting, and that the parties came to his office, and that he drew said paper at their joint direction, and that the transaction was a final sale of the property; and he directly contradicts every allegation in the bill material to the plaintiff's case, and supports the defendant's answer on that subject. Mr. Ward is a conveyancer and a member of the bar, and with opportunities of knowledge, by information from both parties, as to the nature of the transaction at the time it occurred He prepared the instrument under their immediate direction, and embodied in it their agreement. He states that he informed them that, as |