540 H»GH COURT Of CHANCERY.

The position that this was the intention of tfae parties, de-
rives powerful support from the fact, that the sum of three
thousand dollars, advanced at the time of the transfer, was in-
cluded in the judgment confessed by Suter, Indeed, I do not
understand it to be contended by the counsel of the bank, that
these three stalls were purchased by it, for the sum of three
thousand dollars, because, if so, no conceivable reason could be
assigned, for including that sum in the judgment. His argu-
ment is, that the transfer was absolute, and that the bank was to
be at liberty to sell and apply the proceeds of the sales to the ex-
tinguishiaent, as far as they would go, of the entire debt of nine
thousand dollars, for which the judgment was rendered. If that
was the character of the transaction, that is, if the stalls in the
hands of the bank, or its agent, were affected with a trust, to
sell and apply the proceeds to the payment of the debt, still, I
should think, that in the eye of a court of equity, the transfer
would be regarded as a mortgage, being a mere security for
the debt, and not an indefeasible transfer of the title.

My opinion then, is, that this transfer of these stalls, though
absolute in terms, must be treated as a security merely, and be
subject to the considerations governing such transactions.

And this conclusion is arrived at without trenching upon the
principle, that parol evidence in the absence of fraud, or mis-
take, is inadmissible to vary or contradict the clear import of a
written instrument, but upon the confessions and statements of
the answers themselves, which, in my opinion, prove clearly
that a security merely was intended to be taken, and if so, it
follows, that however absolute the form of the instrument, it
will be dealt with as a mortgage.

The remaining question has reference to the right of the in-
solvent trustee of Suter to sell this property, and administer
the proceeds of the sales under the control of the court, by
which he was appointed, and this question depends upon the
true construction of the 5th and 7th sections of the act of 1805,
chap. 110.

It is conceded, and indeed could not be disputed, since the
decision of the case of Alexander vs. Ghiselin et aL, 5 Gill,