16 Ala. 501 | Ala. | 1849
The material allegations of the bill are, that the complainant Cunningham, was indebted to the defendant in several promissory notes, to secure which, a deed of trust had been executed by the complainant to Edmund T. Bush; that the defendant on the 23d of March 1843, claimed to be due to him the sum of six thousand eight hundred and twenty-five dollars; that this amount was produced by calculating interest on the debt at sixteen per cent, and compounding it from time to time; that the defendant then stated that the Legislature had passed a latv taxing money loaned at interest, or used in shaving, and that he wished to change the character of his debt, and proposed to give up the deed of trust and the notes, and to take bills of sale for twenty-four negroes, assuring the complainant that he would hold the bills of sale as a security for the debt, and that the slaves should remainpn the possession of the complainant, and that he would take a note purporting to be for the hire of the slaves, but intended in fact as a security for the interest. The bill further charges, that confiding in the assurances of the defendant, that he avouM take no advantage of complainant, he executed to him five bills of sale, purporting to convey the slaves absolutely, and that the defendant then delivered up the deed of trust and the notes to complainant, he at the same time .executing his note to the defendant for the sum of eight hundred and eighty-eight dollars and ninety-nine cents, purporting to be given for the hire of the slaves, but which rvas intended to
The answer admits that complainant was indebted to the defendant, to secure which the deed of trust described in the bill was executed; the complainant had made default in paying the notes as they fell due, and that the defendant was about to proceed to have the property sold; and avers, that the complainant, desirous to prevent his land conveyed by the deed from being sacrificed, proposed that the defendant should pay off some executions then against him, amounting to about one thousand and thirty-six dollars, and give up the notes and deed of trust, and that he would sell to the defendant absolutely, negroes to satisfy his demand: — that to this proposition the defendant agreed, but told the complainant, that he preferred the money to the slaves, as he had no land for them to work) that complainant replied hé was willing to
In addition to the admissions in the answer in regard to the right of the complainant to repurchase, the testimony clearly shows, that on the day the slaves were brought to the house,
Courts of equity are said to incline against conditional sales, and where it is doubtful, from all the circumstances attendant on the transaction, whether a sale, with the right to repurchase, or a mortgage was intended, equity will construe it to be a mortgage, for by this construction,'complete justice can be done to both parties; but in eases of conditional sales, oppression can be frequently exercised over the needy, and unjust advantages taken of them, owing to their distressed or embarrassed condition. — Flagg v. Mann, 2 Sumn. 535; Longust v. Seaman, 1 Ves. 406; 5 Little, 84; Poindexter v. McCowan, 1 Dev. Eq. 373; Powell on Mortgages, 139; 2 J. J. Marshall Rep. 471. It is therefore the duty of the purchaser, who insists that the sale was absolute, with the right of repurchase, and not a mortgage, clearly to show that such was the intention of the parties; if the proof leaves it doubtful whether the one or the other was intended, a court of equity should decree the contract a mortgage. Weighing the evidence and the entire case by this well settled rule, in my opinion, the bills of sale must be declared mortgages, for any mind, viewing the whole case deliberately, must doubt whether the bills of sale were to be absolute, with the right to repurchase, or whether they were intended as mortgages, even if it be not convinced beyond doubt, that a mortgage alone was intended.
The slaves are shown to be worth nearly double the sum fixed on them as their value, and this of itself must always be an important fact in determining whether a sale is absolute, or a mortgage. The complainant was the debtor of the de
Under this proof we find so many indicia of a mortgage, that we must so consider the transaction, notwithstanding the notes and the deed 'of trust were delivered up to the complainant by the defendant, on the execution of the bills of sale. The relation of creditor and debtor existed between the parties at the time of the transaction; the value of the property is nearly double the amount agreed to be given, and the possession continued with the vendor, under a contract of hire, as the defendant insists j but this contract of hire seems to have been a. part of the contract of purchase, and the sum agreed to be paid by way of hire is a certain per centage on the amount of the debt.
These indicia of mortgage, connected with the declarations of the defendant, deliberately made, that the complaint had the right to redeem the slaves in the presence of men called on to witness the formal delivery of .the slaves, fix the character and nature of the transaction, and require that the bills of sale should be eoñsidered in a court of equity as a security for the amount, that may be due from the complainant to the defendant.
It is however urged that no debt existed after the delivery of the notes and deed of trust to the complainant — but a debt may exist notwithstanding there is no bond, covenant or note to prove it. So if there had once existed a bond or note as evidence of the debt which was delivered up or cancelled, yet the debt would exist if it were not the intention-of the parties to annul or extinguish it. It is true, the inference arising from the fact of giving up or cancelling the evidence of debt, would be, that the parties intended to annul or extinguish it; this inference, however, may be repelled by proof that such was not the intention of the parties. — McKinstry v. Conly, 12 Ala. 678. In the case of Flagg v. Mann, 2 Sumn. 535, Judge Story said, that the absence of a covenant to pay the debt may, in some cases, be important in ascertaining -whether a transaction is a mortgage or a conditional sale, but within itself is not conclusive; the true question is whether there is a
The decree must therefore be affirmed.