delivered the opinion of the court.

Several objections have been made against the form of the decree, which it is not deemed necessary to notice, as it can be set right in this respect if it shall be found that the complainant is entitled to a decree upon the facts of the case. We do not conceive it to be essential in order to constitute a mortgage, that the condition should be inserted in the body of the deed. It may be established by the production of a collateral deed, of defeasance, or by proof of any agreement which creates the relation of mortgagor and mortgagee. In this case the bill of sale had the condition attached to it at the foot of the conveyance, and is most clearly nothing more than a mortgage. It is in this respect similar to the conveyance and bond to reconvey in the case of Hammonds v. Hopkins, 3 Yerger’s Rep. 526. And cannot therefore be considered in the light of a sale absolute in its terms, with liberty to the complainant to re-purchase. This was so ruled expressly in the case just cited. The court said there could be no doubt that the contract in that case was a mortgage. In his answer, Hopkins stated that Hammonds complained that the money loaned was not an equivalent for the land conveyed, and Hopkins therefore subsequently gave him a negro, with which he was satisfied. But there was no proof in support of this part of the answer.

It was insisted in that case, as it is in the one at bar, that this was a purchase of Hammonds’ equity of redemption. But the court held that the proof in support of the allegation rested with the defendant, and that it should be clear and convincing. In this *324case Kent has offered no proof that the purchase of the complainant’s equity of redemption stated in his answer, was made. It is true he has produced a receipt of the son of complainant, in which it is stated that the money received was the balance due on the purchase of the negro. But it is not shown that the son had any authority to execute such an instrument.

This part of the answer rests upon no foundation save the unsupported statement of the defendant. • This allegation in the answer is moreover contradicted by the testimony of the witnesses who have been examined in the cause, as well as the whole circumstances which attend the transaction. This part of the answer being in avoidance of complainant’s title by the new and affirmative matter which is set up by it, should have been distinctly and satisfactorily established by undoubted proof. This not being done, we cannot notice it.

It was urged on the argument that the proof of the intention of the parties at the time of making this contract ought not to have been received. That though it may be true that a mortgage was intended, yet as the bill does not aver an intention different from the plain import of the written contract, the misapprehension of the parties cannot be explained or corrected in the manner attempted.

This objection is grounded on the assumption that the sale to Kent was absolute, with liberty merely to repurchase. If we are right in the views which have been already taken of the nature of the contract stated in the bill, this objection ceases to have any force, and especially so, if it is competent to hear evidence to prove the condition of the sale, allende the written contract. Had the bill of sale in this case wanted the condition which is attached to it in writing, yet we apprehend it would have been competent to the complainant to establish the trust to redeliver, by parol or other extrinsic proof. The bill treats the contract as a mortgage, and the proofs fully support the bill. No mistake is alleged, nor is there any effort on the part of the complainant to prove one.

The complainant is clearly entitled to redeem the slave so mortgaged. The report of the commissioner, which is dated the 18th March, 1838, shows a balance due, to that date, from complainant to Kent, of $96.50. Hire is allowed at the rate of thirty-two *325cents per diem for him in the decree of the chancellor, until the slave shall be delivered. The decree was rendered on the 1st day of February, 1839. Allowing the same rate of hire from the 18th-of March, 1838, until the 1st of February, it will be found that the arrearages for hire, up to the date of the decree, want merely a fraction of absorbing the balance of $96.50, which was found due to Kent from complainant, after allowing interest on the same. The difference is too trifling to require any notice. This is the reason, we apprehend, why no notice is taken by the chancellor of the sum reported by the commissioner.

The decree must be affirmed.