The opinion of the court was delivered by
Whether we agree with the complainant and consider the mortgage of 1833 as a subsisting instrument in full force, or whether we consider the deed and defeasance of the 26’tli -of September, 1839, as a substituted mortgage, and not a conditional conveyance, still the only relief the complainant is entitled to, is the right of redemption: M’Donough v. Strawbridge, 2 Ball & Beatty, 555; Drew v. O’Hara, Ib. 562. This he does not ask in his prayer for special relief; nor has he asked for it on the hearing under the, comprehensive operation of the prayer for general relief: Cook v. *16Martin, 2 Atk. 3. It is doubtful, however, even if the complainant at the hearing had under the prayer for general relief asked to redeem, we could have made such a decree under this hill. Although, in the case of Cholmley v. Countess of Oxford, 2 Atk. 267, Lord Hardwicke seemed to consider that whenever a mortgagee is made a party to a bill by the mortgagor, praying relief, it is the same thing as praying to redeem, because redemption in such a bill is the proper relief; yet in all the precedents of bills to redeem the plaintiff is made to offer to pay debt, interest, and costs, and in the case of Beekman v. Frost, 18 John. Ch. Rep. 554, it is expressly ruled that such an offer is essential and indispensable in a redemption bill. The plaintiff cannot be compelled to redeem on the terms of payment: it is at his election to do so or not. If he makes no offer to pay, he does not lay the foundation for a decree to redeem. Indeed, the complainant here puts his case on other grounds, which are clearly not tenable. He asks the court to decree “that the mortgage is still in being,” and “that the defendants be ordered to convey the mortgaged premises to him, subject to the mortgage-debt, or to so much of it as is due.” Now such a decree is against everything like equity principles and practice. Where, as here, there is no dispute as to the legal and bond fide character of the mortgage (considering it at present to be a mortgage), the plaintiff cannot ask the intervention of a Gourt of Equity to aid him in obtaining the legal title to his land until he offers to do equity by paying the defendant the mortgagee his debt, interest, and costs: Smith v. Valence, 1 Rep. in Ch. 170; Cowp. 601; 2 Vern. 536; 9 Ves. 71; 5 Price, 319; 15 John. 515. It is however admitted, that, in reference to costs, a mortgagee may subject himself to their payment where he resists redemption merely for the sake of opposing the mortgagor, where a clear equity to redeem can be proved against him: Baker v. Wood, 1 Ves. 461; Broughton v. Davis, 1 Price, 224. In a case like the present, where the alleged mortgagee has been in the possession of the mortgaged premises and in the receipt of its profits, although the mortgagor is entitled to an account, yet where, from his own showing, these profits can amount to but little more than interest on the mortgage-debt, he must offer to pay the mortgagee the difference between the profits of the land and the principal and interest of the mortgage-debt before he can claim relief. Here is a case in which the complainant admits himself to be a debtor to the defendant to a large amount; concedes, that, to secure the payment of this sum, he executed to *17Mm an absolute deed of his real estate, accompanied, however, with an instrument which he, the plaintiff, considers a defeasance operating to change his absolute conveyance into a mere mortgage; the money secured by which he does not pretend he has paid or satisfied. In the face of these admissions, and without exhibiting a single fact to justify so novel a procedure, he asks us to compel the defendants to reconvey to him the legal title to the land, which he conveyed to Smith for the security of his money, and this without doing or offering to do what equity, natural as well as artificial, manifestly requires; viz. offering payment of what he justly owes as a condition precedent to any interference with the existing legal rights of the defendants. The proposition is one so manifestly unsound, that its simple statement carries with it its own refutation.
I have said that not a single fact is stated to justify the extraordinary interference required of us. It is to be borne in mind that the plaintiff has set down this case for argument on bill and answer, without going into any proofs of his case. Under such circumstances, the plaintiff admits the answer to be true in all points, and no other evidence is admitted unless it be matters of record, to which the answer refers. All the averments in the answer are to be taken as true; and even where the defendant states he hopes to be able to prove such and such matters, they must be considered as proved, as the plaintiff, by not replying, has excluded the defendant from the opportunity of proving his averments: Brekenhoff v. Brown, 7 John. C. R. 217. The effect of a plaintiff setting down a cause for hearing on bill and answer would seem to be analogous to a common-law demurrer to evidence; where the party tendering the demurrer not only concedes the correctness of the testimony as given, but admits every reasonable conclusion a jury might fairly draw from such testimony. The plaintiff’s bill is dismissed with costs. But as this is a case on which we only determine that the plaintiff has no title to the relief sought by his bill, the dismissal will be without prejudice, the effect of which is that this decree will not be a bar to another bill seeking appropriate relief: 1 Atk. 571; 1 Cha. Ca. 155; Cooper Plead. 270. In that event, the question will properly arise whether the deed and agreement of the 26th of September, 1839, are to be regarded as a mortgage, or an absolute purchase, subject to a re-purchase by the vendor within a limited period, which is the true question between the parties. This will involve the inquiry as to who are the proper parties in a redemption bill in Pennsylvania; whether the reconveyance is to be executed *18by the heir at common law of the mortgagee, or all the heirs under the intestate laws; and how a reconveyance can be ma.de, where, as here, there are infant trustees and heirs, and no statutory provision for such a conveyance.