13 Ala. 246 | Ala. | 1848
The decree of the chancellor rendered in this cause is erroneous, and without entering upon an examination of all the points raised in the argument, I will notice such prominent objections to it as will show it cannot be sustained.
Test, Jesse G. Ousley, Nancy Ousley.”
The defendant, in his answer to the allegation of tfie bill, charging the execution of the said instrument above copied, “ denies that he ever executed and delivered to complainant the instrument in writing above set forth, and further answers, that he never signed any agreement which gave to complainant the power of redeeming the said slaves as charged.” Thus it appears the factum of the instrument being denied by the answer, it was necessary to prove its execution. In order to do this, the complainant examined as a witness, Jesse C. Ousley, one of the subscribing witnesses, (the other witness, Nancy Ousley, having departed this life,) who testifies that the said bond from Hugh Freeman to David Baldwin was not in the same condition when he last saw it, that it was in when it was executed. That he was the draftsman of the instrument, and that since it was executed and delivered, that portion of said instrument which prescribed the time when the complainant was to pay Freeman the $562, was erased. That the same bond was shown him by the attorney of complainant some years previous, when a suit
But it is insisted, that this witness having been examined several times, contradicts himself; and further, that it is shown by the deposition of George W. Towns, that he has made contradictory statements, and that he is therefore not to be credited. If this be granted, the effect would be to destroy his whole proof, which would leave the instrument, ■which is the foundation of the complainant’s right to redeem, unsupported by any proof, and the answer, which is directly responsive, and which puts its execution in issue, must, in such case prevail.
2. But there is another, and still more potent objection to granting the relief prayed by the bill. Whether we regard the instrument relied on as a mortgage, or as a conditional sale, the complainant should have sought his remedy within the time prescribed by the statute of limitations in analagous cases at law. The instrument bears date the 22d February, 1825 ; this bill was filed on the 21st November, 1839; a period of nearly fifteen years elapsed, after the cause of action accrued, before the complainant resorted to his supposed remedy by suit. The complainant and |defendant both resided near each other in the State of Georgia up to the year 1836, at which time the defendant removed and settled in the county of Macon, in this State. The defendant below relied upon the bar of the statute of limitations of Georgia, of
3. But it is insisted by the counsel for the defendant in error, that the agreement relied upon is in the nature of a mortgage, and that Freeman set up no adverse title until 1833, when it was shown the money was tendered him, and that the right to redeem still exists; that neither the statute of Georgia nor of this State, under such a state of facts, had perfected a bar when the bill was filed. Let us test this proposition. Granting that the mortgagor may make an absolute conveyance, and take a defeasance from the mortgagee by a separate deed, yet these deeds must, I apprehend, be contemporaneous, and form but one transaction — one agreement. 2 Johns. C. Rep. 189; 2 Greenl. Rep. 152; 12 Mass. Rep. 456. If there was, as in this case, an absolute conveyance, and a year or more after that time, the. vendee should execute his bond to permit the vendor to repay the purchase money and take the property so conveyed, without some additional consideration, the last agreement would be a nude •pact, and under our law, where the consideration of sealed instruments may be inquired into, would be inoperative. But allowing it to operate, what would be its effect ? Freeman had no demand upon which he could have sued Baldwin. .Suppose the slaves had died after Freeman had held them under his absolute purchase for nine years, could it be successfully maintained that he could have recovered the $562 ■out of the vendor, by reason of any thing contained in this alledged defeasance ? I think not. Fully recognizing the principle that in all cases of doubt courts of equity lean in favor of a mortgage, the terms of this instrument, with the circumstances attendant upon its execution, clearly satisfy my mind it was intended as a conditional sale. The relation of debtor and creditor did not subsist at the time of its execution. The proof shows a mortgage had previously been
There are several other views which we might take of the case, made by the proof, showing that the decree should not be sustained, but the above may suffice. The; court is unanimous in the opinion that the decree of the chancellor is erroneous. It is therefore reversed, and this court, proceeding to render such decree as the chancery court should have rendered, orders and decrees that the complainant’s bill be dismissed, and that the plaintiff in error recover of the defendant in error the cost of this court, and of the said chancery court. See Eiland, adm’r, v. Radford, 7 Ala. Rep. 724, and cases there cited, as to the distinction between a mortgage and conditional sale; also Sewall v. Henry, 9 Ala. Rep. 24.