Monroe v. Foster

49 Ga. 514 | Ga. | 1873

McCay, Judge.

We recognize fully the rule that if there be, in fact, a sale with an option in the seller to rebuy for a fixed sum at a fixed time, the transaction is a conditional sale and not a mortgage, and there is no equity of redemption after the day fixed for the repurchase has passed. See the case of Steadman vs. Spence, at the last term of this Court. But it is perfectly settled, that it is a question of fact for the Chancellor, or, in this State, for a jury to determine what was the true intent of the parties, and that no mere words, whether in parol or in writing, are conclusive. The whole transaction is to be looked to, and if, upon the whole, it appear that the loan of money and security for its repayment was, in truth, the purpose and intent of the parties, it will be treated as such, notwithstanding very strong language may be used at the time to give it a different appearance.

We do not think the evidence in this case is so strong in favor of a conditional sale, as to make the verdict illegal. True, the furnisher of the money did say he would not loan money, and the papers are careful to give the transaction the appearance of a sale. But if all the circumstances are looked to, it will, we think, be ascertained that the jury have found about right. It seems that Foster went to Monroe for money and offered a mortgage. Monroe replied he would have nothing to do with mortgages, but Foster could get the money if he would deed him his land. No price was agreed on, no sale wras negotiated. A deed was made out and signed and delivered, and a bond taken not to make titles, but to redeliver the deed when the money was paid with the rent. The deed wras not recorded, possession was not, in fact, changed. There seems to have been several transactions of this sort, in each of which Foster paid the money and the parties stood as before.

Again, Foster wants money, and the same thing is done. He fails to pay, and another year is given. It appears, too, that the property is or was, at the time, worth over double the amount of money advanced. Here are several of the marks laid down in the books by which to distinguish a loan from a sale, and we are not surprised that the jury considered the transaction a loan, and the papers a mere scheme to hide the usury and put the borrower on such close terms as that he would be most sure to pay. True, the defendant took no note, but having the deed and the other only his bond in which the amount was fixed, he needed none,. As a matter of course, if it was a loan in fact, Foster owed the money, and it was just as much in the defendant’s power to explain and insist on it, as a debt, as in Foster’s. If it was a debt at the call of Foster, it was also a debt at the call of Monroe. Were it Foster denying the debt and insisting on the sale, there would, perhaps, be different evidence. Monroe could doubtless show many admissions by Foster that it was a debt.

Upon the whole, as we have said, we do not feel authorized to interfere with the verdict. There is enough evidence to justify it, and in such cases, where the intent is the main issue, the verdict of a jury is an eminently proper finality of a dispute.

Judgment affirmed.