27 Ala. 634 | Ala. | 1855
The legal effect of the deed, set forth in exhibit A to the original bill, is, that the transaction between the parties to it, evidenced by its terms, was not a mortgage, but a conditional sale of the slaves by Duncan W. Murphy to Nancy Harris, with the right to re-purchase any or all of them within twelve months from its date, by paying within that period the respective values or prices fixed on them in the deed. — Bogan v. Martin, 8 Ala. 807; McKinstry v. Conly, 12 ib. 678; Goodman v. Grierson, 2 Ball & Beatty’s Ch. R. 274 ; Conway v. Alexander, 7 Cranch’s R. 237; 1 Powell on Mortgages, 138-39, and notes ; Holmes v. Grant, 8 Paige R. 260; Glover v. Payn, 19 Wend. R. 518; Barrell v. Sabine, 1 Vernon, 268; Robinson v. Cropsey, 6 Paige’s R. 480; Brown v. Dewey, 2 Barb. Sup. Ct. Rep. 28.
Conceding, however, that said deed was intended by the parties to it as a mortgage, and is really a mortgage, it certainly was competent for the parties to this suit, who are not parties to said deed, to make a subsequent contract, which should define and fix their own rights to the property therein mentioned. This is what they have done. The subsequent contract is set forth in the original bill and exhibit B thereto; and must be considered as the ascertainment and adjustment between themselves of their rights to the property therein mentioned, which is the property involved in this suit.' — Pinkard v. Ingersol, 11 Ala. 9; Lightfoot v. Strahan, 7 ib. 444 ; Wallis v. Long, 18 ib. 738; McKinstry v. Conley, 12 ib. 678.
This subsequent contract is not, on its face, a mortgage.— See authorities cited in firs fc paragraph above. The complainant in the original bill does not aver or pretend that it was intended as a mortgage. The parties must abide by its terms.
The decree on the bill and cross bill must be affirmed ; Sarah Murphy and her surety must pay the costs of her appeal, andBarefield and his surety must pay the costs of his appeal.
