23 Miss. 378 | Miss. | 1852
delivered the opinion of the court.
This bill was filed in the vice-chancery court for the northern district, to compel Elijah H; Yasser to deliver to complainant certain slaves, which were alleged to have been conditionally sold by him to defendant.
' Whether the conveyance is to be considered an absolute sale, or to be established as a mortgage, is the first and principal question in the case.
It is well settled, that a deed absolute on its face may be valid and effectual as a mortgage, if it were intended by the parties to it to operate as a security for. the re-payment of money. 4 Kent, Com. 141, 142; 12 S. & M. 306; 13 Ib. 440. Such intention must be made clearly to appear; but it may be proven by a written instrument' or a parol agreement.
In the case at bar there was no written defeasance or memorandum, which manifested the intention of the parties. Hence the character in which the transaction is to be regarded, must depend upon the parol evidence in the case.
Without going into a minute examination, of this evidence, it is sufficient to remarle, that the allegations of the bill, in which it is averred that the sale was conditional, and made in execution of an agreement that the defendant was to have the privilege afterwards of redeeming the negroes upon re-payment of the money advanced by the defendant, is denied in the answer, and clearly disproved by the testimony of witnesses who were well acquainted with the transaction. The evidence which refers directly to the purchase and sale, furnishes no pretence-for saying that the conveyance of the negroes was intended, at the time, to secure the re-payment of the money advanced for complainant to McCraw & Co. by defendant.
But it is contended, that the instrument made by defendant, of the date of the 3d of December, 1844, is conclusive evidence, as an admission of such intention, and consequently •fixes the character of the bill of sale.
There are at least three good reasons why we should not assent to this position. 1. It is not alleged in the bill, that the instrument was made in execution of any agreement existing
It is further contended, that if the instrument above referred to should be held not to be evidence sufficient to warrant this court in holding the bill of sale to be a mortgage, it is nevertheless valid as an independent agreement; by the terms of which the complainant was entitled to re-purchase the said negroes, upon re-payment of the price originally given for them by defendant.
This paper or instrument is in the following words, to wit: “3d December, 1844. Upon a settlement of accounts with William H. Yasser, this day, I find a balance due him of the sum of $375.39, which I pay him in money, or give him the privilege of taking back any of the negroes I purchased of him, at the price I gave for them, which was, Ellick $300, Aggy $400, Mary $400, Malvina $400, Yewell $300, Hou-sen $300, James $200. Given under my hand, the date above written. And further, he has the privilege of redeeming any of them at cost and interest.”
This instrument was executed in the state of Alabama, the sale and conveyance of the negroes having been made in the state of Virginia, on the 12th of the preceding October. We have seen that this instrument was an independent engagement, entirely distinct from the purchase and sale. Regarding it in this light, the question is, Whether it is a new voluntary contract, or one which is supported by a consideration sufficient to warrant a decree for a specific performance.
Two distinct stipulations are contained in the instrument. 1. The amount ascertained to be due is to be paid to complainant in money; if not, he is to have the right to take back any of the negroes, at the price paid by defendant. 2. The
Having thus reviewed the objections urged to the decree of the vice-chancellor, and finding them unsustained, we affirm it.