The opinion of the court was delivered by

The complainant in this case, who is the respondent in this appeal, made a conveyance in fee of certain lands to the appellant, and the purpose of the bill was to have such absolute deed declared to be a mortgage. In this endeavor he was successful in the court below. The point depended on the effect of the parol evidence, and as such evidence has been fully discussed in the opinion read in the court below by the vice-chancellor, and as I agree in the views expressed by him in this respect, it would be but a waste of time for me, at this time, to pass over that same ground. I concur in the conclusion thus reached, that the deed in question was designed by the parties to it to stand, in substance, as a security for the amount of money advanced by the appellant to the complainant, at the time of its execution.

The only misgiving that I have experienced, touching the correctness of the decree, has been with respect to the propriety of charging the appellant with the share of the complainant in the proceeds of the land sold, on the basis of the price obtained at such sale. The embarrassment is that the whole of such price has not yet come to the hands of the appellant, as he took, in part payment on such sale, a bond and mortgage for a certain portion of the consideration money, and it is now contended, in his behalf, that it is incompatible with correct principle, looking at the case as one between trustee and cestui que trust, or princi*568pal and agent, to charge against him, as so much cash, those moneys included in the mortgage which have not as yet been received' by him. The argument is that such moneys may be ultimately lost without any fault on his part, and thus a liability to his principal may never arise.

There is, certainly, some force in this view, and it would be entitled to prevail if the facts of the case presented these parties as. standing towards each other in the attitude, under usual conditions, of trustee and cestui que trust, or of a similar relationship. According to the view above taken on the merits, the appellant was the holder of the complainant’s undivided share in these lands as mortgagee, with an authority to sell such share, rendering an account to the complainant for its product; and if, in good faith, he had proceeded to execute such authority, in behalf of his principal, there can be no question as to his right to have his accounts settled in the manner which the law prescribes for such cases. But the facts show that the appellant cannot be permitted to claim the utmost advantage of such a position as this. By his own showing, in selling this land, he did not intend to act as the agent or trustee of the complainant, but, disowning that character, and asserting his own absolute right to the land, he made sale of it as owner, and acted in that matter for himself alone. Having repudiated his representative capacity in disposing of the premises, the claim which he makes to such capacity, when his accounts are to be adjusted, cannot be considered as very forcible. Dealing with the property as his own, he took this bond and mortgage in his own right, as so much cash. It, is not shown that the moneys so received cannot be collected, or are in danger of being lost. The price produced at this sale may, I think, in view of all the evidence, be taken as representing the fair value of the land sold. In this position of things, it does not seem to me to be inequitable, or abnormal, to charge the appellant, in his settlement with the complainant, with the entire amount of such price as so much cash in his hands.

This conclusion leads me to vote for the affirmance, in all respects, of the decree appealed from.

Decree unanimously affirmed.