delivered the opinion of the court.

A principle was adverted to in the argument, which will be taken as the basis of a part of our opinion in this case, without recurring to the case of Hicks vs. Cooke, 4 Dows. Par. Cases, 16, where it seems to have been controverted. It is, that the mortgagee may become the purchaser of the equity of redemption, if he does not make use of his incumbrance to influence the mortgagor to part with the estate, for less than its real value.

This principle we think was not infringed by Charles G. Hicks, in his purchase of Elijah Hicks, on the 21st of June, 1826. The mortgage money became due in April, 1826, and no steps to enforce payment, were either taken or menaced ; nor were any indirect means used by him, that we can perceive, to influence the mortgagor to part with his equity of redemption. On the contrary, he appears to have entered into the agreement voluntarily, and uninfluenced by any consideration but that of parting with his estate for what he then supposed its value.

The purchase money was about $1600, and whether the house and lot in the city of Baltimore, were at that time worth more, is not ascertained by the testimony. Three years after, the greater part of the witnesses estimate them to be worth from twenty-two to twenty-five hundred dollars, but all are silent as to the fluctuations in price of property so *86situated, and none determined whether it increased or diminished in value. But let us suppose that the price was stationary, and the mortgaged premises were of the value of from twenty to twenty-five hundred dollars, in the year 1826, yet in our view, the $1600 given, would not be such an inadequacy of price, as to induce us, in the absence of corroborative proof, to fix on the transaction of sale, the character of unfair dealing. It is a circumstance to be weighed in the consideration of the subject, but it is not unsupported, to over-balance many others, that indicate an honest and fair negotiation between the parties.

Another ground taken in the argument was, that the instrument simultaneously executed with the absolute conveyance in the case, converted it into a mortgage, and that it should have been treated as such in the Court of Chancery.

That an instrument, or defeasance executed by the grantee, at the time of the absolute deed, for re-conveyance to the grantor, on his paying a sum of money, may constitute the transaction a mortgage, is undeniably true; but that such an instrument does not always operate that effect, is a proposition equally certain; 7 Cranch, 23. The character of the transaction must in every case depend on the inquiry, whether the contract is a seeuitry for the re-payment of money. If it is, the parties are in the relation of mortgagor and mortgagee; but if it is not, the transaction must take the stamp of a conditional sale. The transaction before us, we have examined with every possible attention, and we cannot discover any thing in it, that has the appearance of its being ra security for the repayment of money, by Elijah Hicks, to iCharles G. Hicks. On the contrary, we think it is very clear that the parties designed it to be a sale, on a condition to be performed by Elijah Hicks and his heirs; if not confining the performance to him and them. This is the language that both of them hold to the witnesses in the cause. Charles G. Hicks told Joshua Gorsuch, that if the money was refunded within the two years, he was bound to re-convey *87the property to Elijah Hicks and his heirs, but he was under no obligation to make a deed to any other person; and Elijah Hicks informed Abraham II Price, that the property was not to pass out of the family, but that if he, Elijah, could raise the money to pay for it, within two years, without a sale, that his brother Charles had consented to let him have it. And the instrument concurrently executed with the absolute deed, seems to countenance the same idea, and contains a provision that constitutes Elijah Hicks a tenant of the premises, at a rent of $135 per annum. These stipulations, and further attendant circumstances that might be mentioned, are inconsistent with the interpretation insisted on by the appellant, and make it manifest to us, that a security for the repayment of money, was not contemplated by the parlies, and that the transactions between them of the 21st of Juno, 1826, must be considered as a conditional sale by Charles G. Hicks to his brother.

DECREE AFFIRMED.