The opinion
Pearson, C. J.
In response to the second issue, the jury find “that the money has not been repaid to R. King m, full.” This leaves the question open whether the money has not been repaid to R. King “ in part.” There were two amounts, $800 secured by mortgage to King, and $1,995» paid by King to French as the price of the equity of redemption, and of a tract of 350 acres, not embraced in the. mortgage.
Assume, as we must do from the finding of the jury, that, the two amounts have not been paid in full, how^ does it appear that the $800, or the greater part of it, was not paid to R. King after he bought the equity of redemption, which-was in 1854. Mary A. Barnes testified: “ Between the? years 1656 and 1858 I made two payments for my husband to Reuben King, one for $300, and the other for $600. T paid the money I expect on the-mortgage debt.” ,
If this be true, it gives a very different aspect to the case from the one ■ upon which his -Honor based his decision* ■where King paid $1,995 for the equity; of - redemption, and ■ the 350 acre tract, It,, was assumed that that the property Was worth the price given-for the equity of redemption over - and above the mortgage debt. So if. the-transaction, was a 'naked purchase of the equity, of ^redemption, King : having the legal title before, and acquiring by his purchase the. -equitable title, became the absolute owner as well -in equity as at law. The $800 and interest was the price of the legal ".estate, and the amount paid-:for;the equity ;of redemption, whs the price of the equitable estate.
Taking this to be so,-as; the: defendants insist, upon what, ground did King afterwards receive.the $300 and the $600 ?' He could only have received the money on the idea that his was not a naked purchase of the equity of redemption, *444 but was connected with a trust that Barnes was to have back the land on repayment in full; at all events it would give the plaintiff a right to have the money refunded.
Under the rules, without 'sending the case back; the Court directs this further Issue.
“'Did Reuben King, between the years 1856 and.1858, receive of Hardy Barnes by the hands of Mary A. Barnes, his wife, the sum of' $300, and also the sum of $600, or any other amounts, to be applied in satisfaction of the mortgage debt, or of any other debt in in reference to the land.
This will be certified, and the case retained for the finding of the issue.
Per Curiam. Decree accordingly.