Peugh vs. Davis.

a deed had already been made of the property, this would be the best way to convert what had previously been a mortgage into an absolute purchase. And he is corroborated by the receipt which Peugh then gave the defendant, expressed to be for the purchase of the squares.

We think that against a case like this a statement which might bear a different construction, made in a conversation at a corner of a street and, perhaps, not well remembered, cannot prevail, and we are quite clearly of the opinion that it was the understanding of the parties that the deed of Febru ary 9, 1858, should operate as an absolute sale, and that complainant's equity of redemption should thereby be extinguished.

The complainant seeks also to invoke to his aid the principle by which courts of equity will regard any agreement between mortgagor and mortgagee for the absolute sale of the land. In Villa vs. Rodriguez, 12 Wall., 323, the Supreme Court enforced this principle in the following language :

"The law upon the subject of the right to redeem, where the mortgagor has conveyed to the mortgagee the equity of redemption, is well settled. It is characterized by a jealous and salutary policy. Principles almost as stern are applied as those which govern where a sale by a cestui qui trust to his trustee is drawn in question. To give validity to such a sale by a mortgagor, it must be shown that the conduct of the mortgagee was, in all things, fair and frank, and that he paid for the property what it was worth. He must hold out no delusive hopes; he must exercise no undue influence; he must take no advantage of the fears or poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him. When confidential relations and the means of oppression exist, the scrutiny is severer than in cases of a different character. The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered and never intended to reclaim is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt, with interest, will compel him to give back that which he has taken with unclean hands. Public policy, sound morals, and the protection due to those whose property is involved require that such be the law."

Peugh vs. Davis.

These observations were made in a case where the deed was made by nieces and nephews of the mortgagee, who was their uncle, and by their mother, who was his sister, and a widow. There had also been agreements which the mortgagee had omitted in the deed, and which he falsely affirmed were in the deed. The deed was in a language which the widow could not read, and it was translated to her by the person who took the acknowledgment, and who testified that Rodriguez, the mortgagee, informed him at the time that he only wanted to secure his advances, and that he would return the surplus money to the widow and her children. Indeed, the evidence was overwhelming to show that the deed was to be regarded as a security for the indebtedness, and the strong expressions of the court were amply justified by the oppressive and unconscionable conduct of the creditor. In the present case there is no allegation in the bill that the instrument was procured by fraud or undue influence, and no constraint is alleged to have been used by the defendant. The needy circumstances of complainant are shown, but that is an incident to the condition of almost all men who have to borrow money. There is no ground, therefore, shown in the bill which would authorize the court to scrutinize the transaction as in a case where fraud is charged, or relief asked from an unconscientious advantage obtained by the defend. ant, for which the purchase should be set aside. There is no suggestion even in the bill that the defendant did not pay the value of the property; it only alleges that it is now worth about $30,000. But the bill was filed after the lapse of eleven years from the time of the transaction, and we all know that the value of real estate has realized a very great appreciation from the wonderful growth of the city.

In the case of Russell vs. Southard, 12 How., 155, Mr. Jus tice Curtis, who delivered the opinion of the court, has collected the authorities regarding the law where a mortgagee in possession takes a release of the equity of redemption, and he concludes by observing: "But we are unwilling to lay down a rule which would be likely to prevent any prudent mortgagee in possession, however fair his intention may be, from purchasing the property, by making the validity of the purchase depend on his ability afterwards to show that he paid for the property all that any one would have been will

Peugh vs. Davis.

ing to give. We do not deem it fit, for the benefit of mortgagors, that such a rule should exist."

Much of the testimony in the depositions has reference to the value of the property in question during the years 1857 and 1858, and if it were necessary to examine it for the purpose of determining the adequacy of price for the purchase made by the defendant, it would be difficult to say that Davis did not pay a sufficient consideration for the surrender of the equity.

The land was purchased in 1845 by the complainant for two cents per square foot. In 1858, when Davis procured the full title, the complainant's witnesses testify real estate had risen in value, and the defendant's witnesses are equally posi tive that it had declined by reason of the monetary crisis of that period, which prostrated the values and business of the whole country. Sales were few and always on credit, and these squares were unimproved, and probably had only a speculative value at that time; so that, if we were called upon to consider the testimony on this point, we cannot say that the validity of the purchase can be effected by anything connected with the consideration.

Suits in ejectment upon tax-titles were pending which, if successful, would not only have cut off the equity of redemption, but destroyed the lien of the defendant. Other taxes were unpaid; all this was known by the parties, and the contract was made with reference to these encumbrances. The condition and value of the property was undoubtedly affected in the mind of the defendant by these circumstances; and it would indeed be hard, if not impossible, to say at this distance of time, in view of all the circumstances, that the amount paid was not an adequate consideration. We apprehend it would be a dangerous precedent to hold otherwise at this late day.

The intemperate expressions of defendant toward Peugh, preceding the execution of the bond, certainly exhibit acerbity of temper, but they do not seem to have influenced the conduct of the parties in the slightest decree.

A majority of the court are of opinion that the decree below ought to be affirmed.

CARTTER, Ch. J., and Mr. Justice WYLIE dissenting.

Ex rel. Bigelow.

THE UNITED STATES EX REL. HORACE H. BIGELOW, vs. JOHN M. THACHER, COMMISSIONER OF PATENTS.

I. An application for a patent was put in interference with a party to whom a patent had been previously issued. On the testimony in the interference case it was contended that the applicant had abandoned his invention to the public use, and the Commissioner referred the question of such abandonment back to the primary examiner; and it was held that mandamus would not lie to compel the Commissioner to allow the patentee to take an appeal from the decision of such primary examiner to the board of examiners-in-chief.

II. A writ of mandamus will not be allowed against the Commissioner of Patents, where the law submits the subject to his opinion.-Cartter, Ch. J.

III. Where an interference is declared in the Patent-Office, the examination is to be confined to "priority of invention."-Wylie and MacArthur, JJ.

IV. It is not the intention of the patent law that, on a question of interference, the examiner in charge of interferences should consider a question of abandonment.-Wylie and MacArthur, JJ.

V. The Commissioner of Patents may suspend, temporarily, proceedings in interference, when the evidence used therein tends to show that the first inventor, who is also the applicant, had abandoned his invention before applying for a patent, and to refer the application back to the primary examiner to ascertain the fact of such abandonment.-MacArthur, J.

OLIN, J., dissenting.

STATEMENT OF THE CASE.

This is an application for a mandamus, to be directed to the Commissioner of Patents, requiring him to allow the relator an appeal from a decision made by one of the primary examiners in the Patent Office; and arises upon the following statement of facts:

A patent was granted to Bigelow, the relator, on the 5th of July, 1870, for an improved machine to make heels for boots and shoes. On the 8th day of August, 1871, Stephen W.

Ex rel. Bigelow.

Baldwin made application for a patent for a similar machine; and on the 12th of April, 1872, an interference was declared between this application and the unexpired patent to Bigelow.

The examiner in charge of interferences decided that Baldwin was the prior inventor of the machine in controversy, which decision was made in July, 1874. From this decision Bigelow took an appeal to the examiners-in-chief, who, in October following, confirmed the decision of the primary examiner, by awarding priority of invention to the said Baldwin; but they called attention to the fact that the testimony before them on the interference indicated that Baldwin had abandoned his invention, and recommended that the question of such abandonment be referred to the proper tribunal for decision. Their language on this subject is: "Upon this point we are not called upon to form a decision, but we are clearly of opinion that it should be considered by the proper tribunal." This recommendation was accepted by the Commissioner, and thereupon he referred Baldwin's application back to the primary examiner for further examination on the matter suggested by the board.

The order of the Commissioner on that occasion reads as follows:

"In the matter of the interference between the application of Stephen W. Baldwin and patent of Horace H. Bigelow, improvement in machine for making boot and shoe heels.

"The examiners-in-chief have in their decision awarded priority of invention to Baldwin, but have recommended the reference of his application to the principal examiner for a determination of his right to a patent in view of certain testimony affecting the question of abandonment by reason of public use. In accordance with this recommendation, the application of Baldwin is hereby remanded to the primary examiner for consideration in the matter referred to above, pending which, further proceedings in the interference case are suspended."

The primary examiner, to whom this reference was made, upon examination of the testimony, rendered his decision on the 8th day of November, 1874, to the effect that said Baldwin had not lost or forfeited his right to a patent by reason