Barnardiston Richard and Syms July S g Eq Cas Abr atk discuss Duffield v Elwes  Bligh n S Syms who be a relation of Richard borrow of he pound and make he a  mortgage upon his estate by way of term for year for that sum a bind be  likewise give for performance of covenant at the time this mortgage be make  the mother of Syms be uneasy at it but Richard tell her in the presence of  Syms that she need not for it be in his power to be kind to he this bind and  mortgage be keep in the hand of a trustee a few year after Syms come to  Richard house and bring with he a box wherein this bind and mortgage be and  tell he that he have bring they he in order that he may keep they himself upon  this as it be swear on the part of the defendant Richard put back the deed  with his hand and say take back your write I free forgive you the debt and at  the same time in the presence of the mother say I always tell you that I will  be kind to your son now you see that I be as good as my word but this evidence  be contradict on the part of the plaintiff Richard die and the plaintiff claim  his estate as his son and heir thereupon be bring this bill against Syms to  compel he to pay his mortgage money or else that he may stand foreclose Mr  Chute argue as counsel for the plaintiff and submit it that even suppose the  fact be true which be swear on the part of the defendant the plaintiff be  entitle to the relief that he seek by his bill for that as he conceive the  case be within the statute of fraud and perjury the attorney general argue on  the other side and for authority cite Whitlocks case   Litt parish and Owen  determine by his lordship Barnardiston Mr Noel on the same side cite har and  Mr Murray on the same side cite Rep   Litt sec shepherd common assurance cap  cap and that of walmesley and booth determine by this chancellor Mr on the  same side cite Rep Lord chancellor say that this be a bill bring not by the  defendant to have a conveyance of the legal estate from the plaintiff but by  the plaintiff as Representative of a mortgagee to have the money suppose to be  due upon the mortgage pay he and in default of that to have a foreclosure the  consequence of this be that the plaintiff come for equity and there be many  thing by which a man may rebut a equity which will not entitle he to come for  a original one now suppose the fact to be true which be insist on by the  defendant namely that Richard the mortgagee do voluntary forgive the debt in  the manner that have be swear on the part of the defendant his lordship say  his opinion be that the plaintiff can not be entitle to relief suppose the  mortgagee himself have bring this bill and the fact that be mention be true  can the mortgagee himself be entitle to relief now abstract from the question  on the statute of fraud his lordship say he can not because he will come for  equity in contradiction to his own Act and as the mortgagee himself can not  have be entitle to this relief if the fact before mention be true the  plaintiff can be in no better condition if the plaintiff have any remedy at  law for these deed and be the defendant to come for equity the case may be of  a different nature but the law be against the plaintiff and therefore if the  fact before mention be true the plaintiff bill must certain be dismiss but his  lordship Barnardiston say he be not Willing the matter shall rest upon this  strict nicety of distinction between the Representative of the mortgagee be a  plaintiff and be a defendant for if this bill shall be dismiss and the  plaintiff leave to take his remedy at law by bring a ejectment for the estate  that will only make a circuity in have the present plaintiff defendant to  another bill which he be not Willing to introduce and therefore his lordship  say that it be better the mere right shall be determine upon the present bill  and in order to do so there will be two question proper to be consider first  the strength of the evidence on the part of the defendant relate to the  forgive of the debt which have be mention Barnardiston er p and second what be  the operation arise from that fact now the second of these question will be  proper first to be consider the fact as it be swear on the part of the  defendant be that when the defendant come to the house of the mortgagee with  the box of write wherein the mortgage and the bind be and offer they to the  mortgagee the mortgagee put the deed back with his hand and say take back your  write I free forgive you the debt and then speak to the defendant mother who  be present say I always tell you I will be kind to your son now you see I be  as good as my word the question be whether this be a mortgage interest in land  this evidence can be allow consistent with the statute of fraud and perjury  the rule upon this head be the same in law and in equity and his lordship  opinion be that it may the statute indeed lie down a very strict but proper  rule relate to real estate that no interest any long than for three year have  pass in they without write nor any trust in they for a long time unless the  trust arise by operation of law the same rule by that statute relate to the  devise of real estate but in all these case there be a difference both in law  and equity between absolute estate in fee or for a term of year and  conditional Barnardiston estate for secure the payment of a sum of money in  the case of absolute estate it can be admit of that parole evidence of the  gift of deed shall convey the land it self but where a mortgage be make of a  estate that be only consider as a security for money due the land be the  accident attend upon the other and when the debt be discharge the interest in  the land follow of course in law the interest in the land be thereby defeat  and in equity a trust arise for the benefit of the mortgagor in a ejectment  where a Title be make under a mortgage if evidence be give that the debt be  satisfy this be consider as defeat the estate in the land which the mortgagee  have and in such case especial where the mortgage be ancient the court will  presume that the money be pay at the day and will direct the jury to give  their verdict accord unless it clear appear that the money can not be pay at  the day no write be in these case necessary which show that even the law  consider the debt as the principal and the land to be only a accident equity  go far and in all case say that where the debt appear to be satisfy there  arise a trust by operation of law for the benefit of the mortgagor and that  case be within the exception in the statute of fraud which have be mention of  trust arise by operation of law and in these sort of case the court receive  any kind of evidence of payment and therefore if a mortgage be make by one  partner to another and the mortgagor agree with the other that he shall take a  certain part of the profit of the partnership in discharge of the mortgage  that of it self will discharge it yet on the ground which the plaintiff in the  present case put his case upon no such parole evidence can be give in these  case of the pay off a mortgage for it may be say that this be to change the  trust of a estate and that shall not be do without its be reduce into write  this show that these sort of conditional estate differ in this respect from  absolute one it be indeed a question what weight shall be lie Barnardiston  upon such sort of evidence as in the present case be offer and whether the  court will not keep a strict hand upon the party and there may be reason for  that but the question as his lordship have before say be whether this evidence  shall not be receive to be a gift or a release of the debt and his lordship  think that it ought here be a mortgage make and a bind at the same time enter  into not indeed for the payment of the money secure by the mortgage but for  performance of the covenant contain in it suppose a obligee deliver up a bind  with a intent to discharge the debt the debt will certain be thereby discharge  and if the bind be discharge in the present case the mortgage will be  discharge with it this bring the question to the evidence of the fact which  have be mention namely whether the mortgagee do use such expression or not and  as to that the evidence be doubtful for which reason that fact must be try in  a issue direct for that purpose and so his lordship be please to decree accord