Opinion
(December Term, 1839.)
Where one took an absolute bill of sale for a slave, for whom he paid a full price, and at the same time gave to the seller, on a separate paper, an instrument promising that if the latter would, on some day in the ensuing month, "tender" to him the same price, he would "give" him the same slave, adding, "If failing to comply on that day, this shall no longer stand good against me"; and it did not appear that there was any mention then made of a mortgage, or that a loan was ever talked of, or contemplated, between the parties, or that the vendor set up any claim to the slave, either as mortgagor or in any other way, until ten years afterwards: It was held, that the transaction was never regarded by the parties as a mortgage, but only as an agreement for a resale, of which the vendor had lost the benefit by not complying with its terms.
THE plaintiff stated in his bill, which was filed in the Spring of 1835, that on 12 December, 1822, he borrowed of the defendant the sum of $400, and to secure the repayment thereof executed a bill of sale, of the same date, for a female slave named Tener, and at the same time took from the defendant, on a separate paper, the following instrument in writing: "On condition, at January, 1823, that Mr. Joseph Munnerlin does come forward and tender unto me, Charles Birmingham, $400, lawful money of the State, will give him a negro girl by the name of Tener, 17 years old. If failing to comply on that day, this shall no longer stand good against me. 12 December, 1822. Charles Birmingham."
The plaintiff insisted that the bill of sale and the above mentioned written instrument constituted a mortgage of the slave Tener, to secure the sum borrowed; and he thereupon prayed to be permitted to redeem the slave Tener, and her three children.
The defendant, in his answer, denied that he executed the instrument of writing set forth in the bill. He said that he purchased Tener for $400, that being a full and fair price, and took a bill of sale for her. He denied that there was a mortgage, or any intention to take the slave on mortgage, to secure the repayment of the $400.
The plaintiff filed a replication to the answer, and the parties (359) proceeded to take proofs.
Winston for plaintiff.
Mendenhall for defendant.
The proof is satisfactory to us that the defendant did execute the instrument of writing mentioned in the bill. But taking the bill of sale and the said instrument together, and all the circumstances which surrounded the case, and we are of the opinion that they do not constitute a mortgage. It seems to us that the instrument executed by the defendant is but an agreement for a resale of the slave Tener for $400, if the plaintiff tendered that sum by January, 1823. There is nothing mentioned of a mortgage or money borrowed in either the bill of sale or the paper-writing. There is no proof that the girl was worth more than the money advanced by the defendant. There is no covenant in the instruments, or out of them, for the repayment of the money to the defendant in case of the death of the slave, or any repayment; and there is no evidence that a loan was ever talked of or contemplated between the parties. The slave was immediately delivered to the defendant on the advancement of the money. And it was a long time (upwards of twelve years) which had elapsed without any mention by the plaintiff, until about two years before he filed his bill, that he had any claim to the slave, as mortgagor or in any other way. We are induced to think, from the whole case, that the plaintiff never considered the transaction a mortgage, but only as an agreement for a resale, which he had lost the benefit of by not complying with the terms of it in time. Poindexter v. McCannon, 16 N.C. 373.
We are of the opinion that the bill must be
PER CURIAM. Dismissed.
Approved: McLaurin v. Wright, 37 N.C. 97.
(360)