7 Fla. 338 | Fla. | 1857
delivered the opinion of the Court.
This cause comes up upon appeal from a decree of the Circuit Court for Hillsborough county, sitting in Chancery.
The object of the bill is to redeem a slave called Harriet, therein alleged to have been mortgaged to the defendant Handcock, and by him sold to the defendant Brown ; while the defence set up by the answers is, that the transaction between Hollingsworth and Handcock constituted a conditional sale of the slave; that the-instrument executed by Hollingsworth was not a security for money, and therefore not in the nature of a mortgage ; and that the complainant is estopped, by reason of his acquiescence in the sale from Handcock to Brown, from asserting any claim to
On the 22d October, 1845, Hollingsworth executed his bill of sale, in the usual form, to Hancock, for the slave Harriet. This was written on one half of a sheet of paper, and on the other leaf of the same sheet there appeared a writing in the following words,- tó-wit:
“ State of Florida, Hillsborough county. The condition of the above bill of sale is such, that if the said Stephen Hollingsworth shall, within one year from the date thereof,pay to the said William Handcock the valuation of the said negro girl, viz: four hundred dollars, with interest at eight per cent., then the foregoing bill of sale to be void and of none effect, otherwise to remain in full force and virtue.”
This defeasance, however formal in its terms, was not subscribed by either of the parties to the bill of sale, yet it is contended that the circumstances developed in the testimony show that it is a true exponent of the intention of the parties, in regard to the nature of their contract.
The allegations in the bill and answer are variant and contradictory in reference to the true intent and meaning of the engagements the parties entered into with each-other, and we are left therefore to seek in the facts and circumstances of the case their true purpose and legal effects. It is very obvious that the true question for our consideration is, whether this instrument and the agreement of the parties contemplated and were in fact a conditional sale. In that event, the title in Handcock becomes abso
There seems to have been no previous negotiations between the parties, nor any loan or debt due, or mortgage spoken of to secure a previous debt. The connection of the parties commenced with the bill of sale from complainant to Handcock,. which is absolute and unconditional in its terms. Whether the form or memoranda of the defeasance written on another page of the same sheet of paper? but not executed by the parties, is to be taken as a part of the instrument itself, is not very material, since it must be taken- for whatever it is worth in connection with other circumstances, in illustrating the intention of the parties. Nor does it vary substantially, from the parol testimony in the case, as to the condition upon which the property was transferred. In considering the effect of the testimony, it should be remembered that the parties acted in the first
The transaction occurred at Tampa where the girl was not present, but in accordance with the legal effect of the bill of sale, she is very soon found in the possession of Handeoek. In case of a mortgage, the possession is usually retained by the mortgagor.
But the complainant acquiesced in the possession of the ■vendee, and witnessed, without objection or complaint, his .sale of the girl to a third party long' after the period had .elapsed .at which he had .the privilege of getting her back by re-paying the purchase money.
He moreover sent his son to Handeoek to enquire whether he would permit him to refund the purchase money at a day subsequent to that fixed in the original agreement, .showing that he did not rely upon his right to redeem or re-purchase after that period; and Handeoek, acting upon the same conception of his rights, refused to do so after his .contemplated departure for Tallahassee.
In further corroboration of this view of the subject, it ap. pears from the testimony of Thomas P. Kennedy that Handbook paid the full value of the girl by settling some debts for which the comj>lainant was pressed, and paying the balance in cash. And it is argued with some show of reason that if a loan only had been contemploted, the complainant would have contented himself with a sum sufficient to relieve his necessities without exacting a further sum to cover the whole value of his property; and in like manner if Handeoek only contemplated a security for the money .advanced, it is suggested that he would have sought a further security to guard against the loss of that which was named. But instead of such a course, he took no note or .other security for his money, and rested content with his bill of sale for the property.
Kennedy also .states that complainant had .offered to sell
. To the acts and admissions of the complainant as thus narrated, and the great length of time which he has allowed to elapse without any assertion, of his claim, he gives no satisfactory explanation or reply.
In Scott vs. Britton, 2 Yerger, 215, it was held that “ when a bill of sale is absolute on its face, it requires clear and satisfactory proof by parol to show that it was intended ,as a mortgage.” ¥e have no such proof in this case, and are therefore constrained to agree with the Court below in considering this a conditional sale, vesting, upon forfeiture of the condition, a perfect title in the purchaser.
There .are many analagous cases in the reports, the ay.-
Whilst we are clear upon this point, there yet remains another to which great weight was deservedly attached by the Court below. Handco'ek sold the girl Harriet to Brown in the year 1850, in the presence of Hollingsworth, who made no objection to the sale, and at the request of Brown and the witness, Joseph Howell, who drew the bill of sale on that occasion, stated her age.
We have no difficulty in concluding that this conduct on the part of Hollingsworth, after some five years possession on the part of Handcock, presents serious difficulty in the way of his recovery. It was objected that this should have been specially pleaded as matter of estoppel in the manner prescribed in the 31st rule of Chancery practice. But this ground of defence is fully stated and relied upon in the answer of Brown; and our statute (Thomp. Dig., 458, sec. 9,) expressly provides that the defendant may, in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter, or had_demurred to the bill. The rule referred to, which we have adopted from the practice of the Hnited States Circuit Courts, prescribes nothing in regard to what matters of defence shall or shall not be specially pleaded, and is confined solely to the manner in which a plea or demurrer shall be filed. Brown, therefore, is entitled by the statute to the full benefit of the defence set up in his answer. This defence is well sustained by the testimony of Joseph Howell, and the principle of law involved has been well considered and settled by this Court in the case of John G. Camp vs. W. D. Moseley, et al., 2 Fla. Rep. p. 197. This case, together
The decree will therefore be affirmed with costs.