7 Mo. 327 | Mo. | 1842
Lead Opinion
Opinion of the Court, delivered by
This was a bill in chancery brought by Marie T. Ranger, executrix of Lambert Ranger, deceased, for the redemption of a negro girl, conveyed to Desloge & Rozier in 1830. The Instrument of conveyance was as follows : “Know all men by these presents, that I, Lambert Ranger, of the county of
his
LAMERTH RANGER,
mark.
In the presence of
Jacob Boas,
Bazil Misplay.
It appears from the bill and answer, as Well as the testimony of witnesses, that in the summer of 1830, Lambert Ranger was indebted to the firm of Desloge & Rozier in the sum of two hundred dollars; that Ranger being confined to his house by illness, from which he never recovered, was called upon by Desloge, the acting partner of the firm, to settle his account, but being unable to do so, executed the above instrument of writing. The answer of Desloge avers-that the negro girl was delivered up to him immediately on the execution of the instrument, but that from her tender age he offered to leave her with the complainant, and did so leave her.
The witnesses say nothing of any delivery, but state their impression to have been, that the girl was to remain in possession of Ranger for two years. One witness states that .she was present at the sale, and that Desloge said to Ran
About the expiration of the two years allowed for redemption, Desloge, at the request of Marie T. Ranger, the widow of Lambert Ranger, consented that she might have six months longer to redeem the negro ; but she was still unable to do so ; and in the year 1835 the negro was sold by Desloge for eight hundred dollars.
There W'as proof that the two hundred dollars, with interest. had been on one or two occasions tendered to Des-loge, but refused. But no proof of any tender until after the expiration of the two years and six months allowed for redemption, by the instrument of writing, and the subsequent parol agreement of Desloge.
It was also in proof that two hundred dollars was a fair price for negroes of the description of the one sold, at the time of the transfer to Desloge & Rozier.
The court decreed that defendants retain $200.00, their debt, and interest for two years, and pay the complainant the balance, amounting to $576, with interest from I3th December, 1836, the date of the writ.
The only inquiry presented by the record is, whether the contract in this case was a security for the repayment of money. or an actual sale. Courts of equity have never denied to parties the power, of making contracts for, conditional sales, and if the form pf the instrument, together with the extrinsic circumstances attending the contract, are conclusive of the intention of, the parties, it is not their province to interfere... When the form of..the instrument is not conclusive either way, resort must bp had to the circumstances attending the transaction. And if, upon a full view of the
In this case the instrument contains a clause of redemption, and is so far a mortgage. It does not, however, con°k%a^oa for the repayment of the money, and in that particular, lacks one of the most important features of a mortgage. A remedy against the person of the debtor is essential to a mortgage ; but, aswas observed by Judge Marshall, in Conway’s Exr. v. Alexander, (7 Cranch, 218,) if ^is remedy really exists, its not being reserved in terms, does not affect the case. Whether any remedy existed in this case, then, must depend upon the construction to be giv-to the instrument from extrinsic circumstances, for if . . the instrument should appear from such circumstances to have keen designed as a mortgage, the debt was not merged in the contract of sale, and the creditor had his remedy against the mortgagor, either by foreclosure, or suit upon the original contract. If the instrument was in foim and essence a sale, the debt was paid, and no remedy existed against the person of Ranger, and the death of the slave would have been the loss of the purchaser.
The form of this instrument, then, I take not to be conclusive, and we therefore resort to the circumstances attending the transaction, for the purpose of ascertaining the real intention of the parties. In the case of Chapman v. Terrell, (1 Call 280,) a leading case on this subject, Judge Pendleton said “The great desideratum which this court has made the ground of their decisions is, whether the purpose of the parties was to treat of a purchase ; the value of the commodity contemplated, and the price fixed ; or whether the object was the loan of money, and a security or pledge for the repayment, intended.” The intention of the parties must 'then govern the construction of this contract.
In fixing on the marks by which conditional sales are to ' be distinguished from mortgages, I have seen no case in
Let us examine the circumstances of the present case upon these principles. Here the price was settled, and the price a fair one, and there was no covenant for repaying the money. Thus far, the transaction was clearly a sale. But the .possession of the negro, remained in Ranger, which fact, according to Judge Heyward, repels the idea of a sate. It is true, that Desloge, in his answer, avers that the slave was duly delivered to him; but without questioning this statement, which is unsupported by the testimony, it is obvious, that this delivery,if it did take place, was purely iormal. The proof is clear, and uncontradicted, that the girl remained in Ranger’s house for two years after the sale, and was only got into the possession of Desloge, by the permission of the widow. I am not prepared to say, as Judge Heyward intimates his opinion to be, that this circumstance is absolutely conclusive against the vendee or mortgagee, and could not be explained; butit is, in my opinion, entitled to great weight in explaining the intent, and understanding of the parties, and is well calculated to throw doubt and uncer
There is an other circumstance entitled to consideration, jn determining the real nature of this transaction. A preexisting debt is alluded to by Judge Marshall, in the case of Conway’s Ex. v. Alexander, as affording presumptive proof, that a mortgage is designed. In this case, Desloge and Rozier wrere not traders in negroes, nor from any thing that appears, had they any wish to purchase such property.— They were merchants, and it is clear, that from the friendly feeling they entertained for the family of the Rangers ? which they repeatedly aver in their answer,) they had no other wish or design, than to secure the debt which Ranger owed them. The instrument of sale was, therefore, made to Desloge & Rozier, a mercantile firm — not dealing in the purchase and sale of slaves, and the slave sold, was a family servant, and one, therefore, which - Ranger would not have parted with, except from his necessitous circumstances, and which he did not part with, except upon express conditions, that he might redeem within a given time.
Upon the whole, it appears to me, that the retention of the possession by Ranger — the existence of a previous debt on his part, and the execution of the instrument to a mercantile firm, were circumstances calculated at least, to throw so much doubt over the transaction, as to justify a court of equity in construing it a mortgage.
Decr.ee affirmed.
Dissenting Opinion
dissenting.
I dissent from the majority of the court, believing that this instrument of writing ought not to be regarded as a mortgage. There is no mutuality preserved. Ranger might ■ redeem within two years, but Desloge & Rozier could not even sue him on that instrument of writing after the expiration of the. two years, in case the negro had died, and there is no evidence that they took any note to secure th.e payment; ¡of the, money, in.jhe.eyent of! the death of the ne-. gro, Tp, suppose, that they would rely on the implied promise, of Ranger to pay an .open account;,,, for, the goods they.
