Ames, J.
As, by the consent of the parties, this case was '•ried by the court without a jury, the rulings of the presiding judge upon matters of law only are open to examination in this court; but Ms findings upon matters of fact are conclusive, and cannot be here revised. It appears from the bill of exceptions that the conveyance of the lot of land from tMs demandant to Sarah O. Adams, and her mortgage deed of the same to him for what appears to have been about nine tenths of the purchase money, both occurred on the same day, and were acknowledged and recorded on the same day. This fact is an indication that the two instruments really constituted but one transaction; and the presiding judge may be supposed to have found that (as against the mortgagee) they gave to Mrs. Adams only an instan*410taneous seisin, so that all incumbrances to which she could subject the property would apply only to her equity of redemption, There is nothing in the facts reported that justifies us in holding that the grantor was to advance money, or give credit on the sale, to enable her to build a house on the land. The case there fore does not come within the rule laid down in Hilton v. Merrill, 106 Mass. 528. The deed, although dated back, could only take effect from its delivery, which was after the date of the building contract. But the difficulty with the tenant’s case lies in the nature and extent of the title which Mrs. Adams acquired by the conveyance in the land conveyed. We must suppose that the deeds exchanged by the parties were in conformity to the terms of their unwritten contract. If, under the conveyance, Mrs. Adams only held an equity of redemption, it was not in her power to create any incumbrance or lien upon the estate that could take precedence of the mortgage, except with the consent of the mortgagee. Of such consent we have no evidence. It follows from this view of the case that the demandant, who claims under that mortgage, has the older and better title, and that the tenant’s Exceptions must be overruled.