contrary to the spirit and policy of the statute of frauds. Mercer adm'r vs. Stark, 1 Smede & Marshall Chan. Rep. 479; Steere vs. Steere et al., 5 J. C. Rep. 220; Botford vs. Burt, 2 J. C.. Rep. 409.

Even if an express contract in parol was clearly proven, the statute of frauds would render it void: for it cannot be contended for a moment that there is the semblance of a memorandum in writing signed by Mrs. Anthony, binding herself to hold for Philip's benefit.

Where the declaration of trust was made by the grantor at the time of making conveyance, a parol trust, so declared, was good, but where the declaration of trust was made by the grantee (Mrs. Anthony,) she paying the money, then, it is a mere contract to make a conveyance hereafter, and is prohibited by the statute of frauds. Freeman vs. Freeman, 2 Select Equity Cases, (by Parsons,) 89.

w

Even if the decree of the court below is correct in holding Mrs. Anthony a trustee as to the property, yet the basis of reference, upon which the master took the accounts between the parties, was too narrow, and by its operation Mrs. Anthony was deprived of her tight of set-off, as to matter of "mere personal dealing, not in some way connected with the Anthony House property.”.

We think that this action was erroneous: 1st. Because it is a principle as old as equity jurisprudence, that he that seeks equity, must do it independent of the rules and principles of equity, which clearly gives Mrs. Anthony the right to set-off, and that too without the necessity of a cross-bill; yet we are not left to this alone, for we have an express statutory provision, giving the right of set-off in this case, and making it a matter of defence. See Dig., chap. 28, sec. 26, which provides expressly for the right of set-off in chancery suits, upon money demands, to the same extent as at law. Set-off is matter of defence, and entitles defendants to withhold money due them. Higgs vs. Warner, 14 Ark. 192.

Set-off was a matter of peculiar equity jurisdiction before

the statute of set-off, and none but a court of equity could relieve. Menifee admr. vs. Ball et al., 1 Eng. 520; Hempstead and Conway vs. Watkins, 1 Eng. 318.

This is not a bill to redeem, but simply a money demand, to which the law of set-off applies, yet even upon a bill to redeem, Mrs. Anthony would be entitled to her advances between her and Philip. See Coote on Mortgages 395; Ib. 408

An executor (a trustee) may set-off a debt due his testator from a legatee. Ward on Legacies 318.

If a mortgagor comes in to redeem, he must pay up not only the mortgaged money, but also subsequent advances made by the mortgagee. Ogle vs. Shipp, 1 A. K. Marshall, 287.

HEMPSTEAD and BERTRAND, for appellee.

The mortgage on the 10th of January, 1843, was not only effectual to secure the advances then made, but likewise to cover future advances. Hendricks vs. Robinson, 2 J. C. R. 309.

We take it to be clear, that a mortgage will stand to secure the real equitable claims of the mortgagee; whether they existed at the date of the mortgage, or arose afterwards. A mortgage may be held as security for future advances. Brink erhoff vs. Marvin, 5 J. C. R. 326, 327; James vs. Johnson, 6 J. C. R. 429; Livingston vs. McInlay, 16 J. C. R. 165; Shirras vs. Craig, 7 Cranch, 34.

Courts of equity do not regard the forms of instruments, but look to the intention, and give to the acts of the parties the construction which that intention justifies and requires. Flagg vs. Mann, 2 Sumner 530.

In a letter, addressed by Mary S. Anthony to James C. Anthony, dated Little Rock, September 1, 1848, she says: "1 only took the Anthony House to save the money William and my self have advanced, otherwise it would have been totally sacrificed, and no one paid." Again, in a letter, written by her to Philip, dated December 24, 1848, attached to the master's reportstricken from the files, but preserved on the record by bill of exceptions-she says she heartily regrets she did not give up

all after the sale by the Bank to Brown, and emphatically states what her expectation had been, in the following strong language: "All I want or ever expected to get is what you owe me and William."

Aside from this documentary evidence, the oral testimony clearly demonstrates that Mrs. Anthony, in reference to this property, occupied the position of a mortgagee, or a trustee with an interest.

The law is, that the mortgagee can take no advantage of the mortgagor, or derive a profit, or make a speculation, directly or indirectly, out of the mortgage. All the mortgagee is entitled to is the principal and interest. Chambers vs. Goldwin, 9 Vesey, 271; Langstaffe vs. Fenwick 10 Vesey 405.

Now as to what constitutes a mortgage, there is no difficulty whatever in courts of equity. No particular form or words of conveyance are necessary, and indeed whenever a conveyance, assignment or other instrument, transferring or charging an estate is originally intended between the parties as a security for money or any other incumbrance; whether this intention appears from the same instrument or from any other, or by parol evidence, it is always considered in equity as a mortgage. And also parol evidence is admissable to show that a conveyance, absolute on its face, was intended as a mere mortgage or security for money. 2 Story's Eq., sec. 1018; Morris vs. Nixon, 1 How. S. C. R. 118; Marks vs. Pell, 1 Johns. Ch. Rep. 594 Flagg vs. Mann, 2 Sumner, 540.

Now certainly the pleadings show-the answer of Mrs. Anthony expressly admits, and the testimony undeniably proves, that the intention and agreement between herself and Philip L. Anthony, were that she was to take and hold the Anthony House property for advances made by her to disincumber it, for the benefit of Philip L. Anthony, and as security for moneys advanced, and to be loaned by her to him; and to that end and for that purpose she proceeded to acquire and did obtain the legal title to the Anthony House property-and admitted at

various times, and to various persons, as we have seen, that she held it for the benefit of Philip L. Anthony to secure her for moneys, and when they were discharged, the balance was to belong to Philip L. Anthony.

Mortgages may not only be created by the express deeds and contracts of the parties; but they may be implied in equity from the nature of the transactions between the parties. 2 Story's Eq.

1020.

There can be no serious doubt but that Mrs. Anthony must be held as a trustee coupled with an interest, of the Anthony House property. Holdridge vs. Gillespie, 2 J. C R. 33; Trapnall vs. Brown, 19 Ark. 39, 50.

An attempt to convert into an absolute conveyance an instrument which was intended to be in the nature of a mortgage, or to set up as absolute and conclusive, a deed which is conditional, is a fraud upon the law, which a court of equity will rebuke and defeat. Rogan vs. Walker, 1 Wis. 527.

Gordon vs. Lewis, (2 Sumner, 144,) was a bill to redeem by an assignee of a mortgagor, brought against the defendant as assignee of the mortgagee. The mortgage was admitted, but the defendants insisted that by entry and foreclosure and visible and exclusive possession, they had acquired an absolute title, and were owners, and therefore denied any liability to account to the mortgagor. STORY, J., said, "the defendants could not now be permitted to set up an adverse title against the mortgagor, or his assignees, to protect themselves from accountability," 146. "No principle," said he, "is better established than that a mortgagee SHALL NOT GET ANY ADVANTAGE out of the mortgage fund beyond his principal and interest. Between mortgagor and mortgagee, the latter, when in possession, must account for the actual rents and profits received or made by him, if these rents and profits can be actually ascertained. Where they cannot be; there must be a resort to a fair occupation rent.” Wilson vs. Metcalf, 1 Russ. 530; Gubbins vs. Reid, 2 Sch. & Lef. 218; 4 Kent 166; 3 Powell on Mort. 499, note E, 2.

There is a strong analogy between that case and the one in hand, and we invite attention to it.

Mrs. Anthony was in fact a mortgagee in possession, and had a right to sell with, or without Philip's consent to pay her debt; but was accountable for the proceeds, and for rents and profits. The consent is given either expressly or impliedly in mortgages themselves; and it is new law, and startling law, too, if by consenting to a sale, the mortgagor loses all right to hold the mortgagee accountable, and thereby renounces all claim to the proceeds after the payment of the mortgage debt!

In view of the relation of the parties, and the facts and circumstances of the whole case, and of principles of equity jurisprudence as ancient as commendable, no alternative was left to the chancellor but to hold and declare, as he did, that Mrs. Anthony was not in equity, the absolute owner of the Anthony House property, but that she had charged it with a trust, in favor of Philip L. Anthony, the appellee.

The chancellor, following the law of mortgages and the manifest propriety of things, directed an account to be taken by the master as to the dealings between these parties, in reference to the Anthony House property alone; and specially directed that no mere personal dealings between them should come into the account.

This was done, because it appeared to him, as the record in fact shows, that there were other suits between these same parties in other courts, involving those dealings, and having no reference to this property at all. And, besides, it would have opened up stale accounts and demands, and brought before the court transactions of twenty and twenty-five years standingbarred by limitation and lapse of time.

Obviously there was a propriety in confining the account to the mortgage debt and property-excluding other transactions, not therewith connected. That was the case made by the bill, and that alone was the matter in issue between the parties. And if Mrs. Anthony desired, or could have had, all past dealing and transactions of every kind investigated and reinvesti