36 Ala. 147 | Ala. | 1860
In the present case, the evidence which is set out in the I’eeord fails to satisfy us that the object of this transaction, as understood by both parties, was to create a security for a debt. As to the $8,200, the consideration paid for these negroes, it is not shown that the complainant remained under any obligation, express or implied, for its repayment to the defendant. On the contrary, the inference is unavoidable, that the arrangement which the parties made did not create the relation of debtor and creditor between them, except to the exteut of the difference between the agreed price of the slaves, and the amount of the debt which the defendant assumed for the complainant. For this difference, the complainant executed to the defendant his four notes, as testified to by the witness Goodwin; but for the $8,200, the price at which the negroes were taken, no note, or other evidence of indebtedness, was given. If the defendant, upon such evidence as is set out in this record,-had either brought an action at law against the complainant for the recovery of the $8,200, the agreed price of these slaves, or filed his bill praying a sale of the slaves, the application of the proceeds to the repayment of the purchase-money, and a decree against the complainant for whatever balance might still remain due, it is clear that he must have failed in the suit.
It is true that the contract seems to have had its origin in, or rather to have been preceded by, a proposition for a loan ; and this, it is well settled, is a circumstance which strengthens the inclination which, in cases of doubt, courts always feel, to consider the transaction a mortgage, rather than a conditional sale. For some reason which does not appear, the proposition' which the defendant made by letter, in answer to the complainant’s appeal for aid, was not acceded to; and the arrangement which was
Under all the circumstances disclosed in .the -record, we must treat the transaction between these parties, not as a mortgage, but as a conditional sale, the terms of which are set forth in the writing executed on 3d March, 1850. — Eiland v. Radford, 7 Ala. 726; Sewall v. Henry, 9 ib. 24; Murphy v. Barefield, 27 ib. 634; West v. Hendrix, 28 ib. 234; Sewell v. Price, 32 ib. 97; Crews v. Threadgill, at the last term; White & Tudor’s Lead. Cases Eq., vol. 2, pt. 2, 431-442, and cases there cited.
Decree- affirm edi-