
    James Critcher v. Samuel Walker.
    
      1 >- From Granville-J
    Circumstances which incline the Court to construe a transaction to be a conditional sale, and not a mortgage. Among others, 1st. The money advanced bqing equal, or nearly so, to the value of the goods conveyed: 2d. A stipulation in the contract of the parties, that he who advances the money and receives the goods, shall hold the goods subject to the claim of him from whom he receives them, until a particular day, and subject to his loss if they be destroyed by that day ; but to hold them free from such claim after the day, and subject to liis own loss if they be destroyed or perish after the day.
    Critcher b cing in want of money, applied to W alkcr, who advanced to him £70, and he thereupon placed in W alker’s possession a negro girl, to work for the interest of the money to a particular day, up to which day Critcher was at liberty to pay the money and take the negro back ; and if the negro died before that day, Critcher was to bear the loss ■, if after the day, and the money was not paid by the day, Walker was to bear the loss. £70 was the value of the negr® girl at the time Walker received her into possession. Twelve years afterwards, when the negro girl had grown up and had several children, Critcher tendered the money, and demanded the negroes, Walker refused to deliver them, and Critcher filed his bill, praying f.o be permitted to redeem the negroes, treating the toansaction between him and Walker as a mortgage. Bill dismissed: for as £70 was the value of the negro girl, and Walker was to bear the loss, if she died after a particular day, the Court will construe the contract to be a conditional sale, and not a mortgage.
    En mortgages, the want of a covenant for the repayment of the mortgage money is no bar to a redemption : norm such case is the mortgage without remedy, although the goods be destroyed, or not of value sufficient to pay the debt, in Equity he may recover the money from the mortgagor; for every mortgage implies a loan, and every loan a debt.
    The bill charged, that Complainant, being in want of money, applied to the Defendant, in tiie year 1785, to loan to him the sum of £70, Virginia currency, and that the Defendant agreed to loan the money, provided Com-t plainant would place in his possession a negro woman named Mag, as a security for the money, and to work ■for the interest thereof: that Complainant thereupon re-■eelvcd the money, and delivered the negro woman to Defendant, and at the same time executed a bbnd to the Defendant for the money, and Defendant had the bond still in his possession. The bill then charged, that the negro woman had had five children since she was delivered to defendant ; that Complainant had in 1797, tendered to Defendant the sum of £70, Virginia currency, and requested Defendant to surrender to him Mag and her increase; that Defendant refused to accept the money, or surrender up the negroes. The bill prayed that Complainant might be permitted to redeem, &c.
    The Defendant in his answer, admitted that he had -advanced £70, Virginia currency, to the Complainant,, but averred that he took Complainant’s bond for the repayment thereof on the 25th December, 1785 and that he took the negro woman Mag into his possession on the following terms, viz. that she was to remain in his possession until the said 25th day of December, at which time Complainant was to be at liberty to take her back, upon paying the money advanced, without' interest: but if Complainant failed to pay the money by or on that day, she was to become the absolute property of the Defendant. That the bond was given to secure the debt in the event of the negro’s death before the 25th December j that it was agreed, if she died before that day, the loss should fall on the Complainant; if she died afterwards, the loss should fall on the Defendant. The Defendant also relied upon the length of time, and insisted that in analogy to the statute of limitations, the Court ought to refuse any aid to the Complainant.
    The answer being replied to, sundry issues were made up under the direction of the Court, and submitted .to a Jury, who found, 1st. That Defendant had kept possession of tire bond for £70, Virginia currency, from the time it was given, arid had not offered to return it to Complainant. 2d. That £70, Virginia currency, was the value of the negro girl Mag, at the time she was de-livcréd to Defendant in 1785. Sd. That she was to remain in the possession of Defendant, subject to the claim 0j, |¡1C Complainant,, until the 25th December, in that year, and up to that day Complainant was to pay no interest upon the money advanced to him by Defendant, but the negro’s work should be for the interest. 4th. That Complainant was to bear the loss, if the negro died before the said 25th December j and the Defendant was to bear the loss, if she died after that day. 5th. That Complainant had not paid the money due on his bond, nor applied to the Defendant to have it surrendered up to him.
    The case was sent to this Court upon the bill, answer, replication to the answer, and the findings of the Jury.
   Hax.Ii, Judge,

delivered the opinion of the Court:

The allegations of the Complainant’s bill exhibit, in almost all respects, the features of a mortgage; the answer of the Defendant, those of a conditional sale. But as neither are evidence, except against the party from whom they come, we must have recourse to the facts as found by the Jury. It is of importance to keep in view, that one of these facts is, that £70, Virginia currency, was the value of the negro at the time she went into the possession of the Defendant; a circumstance which does not happen in mortgages, but is often found in conditional sales. A circumstance in which the transaction resembles a mortgage, is this, that if the negro died before the 25th December, 1785, the Complainant was to bear the loss ; on which account he gave his bond for the money. The Defendant, in his answer, states that the bond was given to secure the debt, if the negro died before that day. Although the Jury do not find expressly that the bond was given for that and no other purpose, yet they find that which is tantamount to it: for they find that the Defendant was to bear the loss in case the negro died after the 25th December, 1785 ; which finding seems to distinguish the case from a mortgage : lor if the negro had died after that day, and suit had been brought upoii the bond for the money, a Court of Equity would have enjoined the proceedings, if this fact had been made to appear ; the consequence of which would have been, that the Defendant must have borne the loss. This is not like the case of a mortgage reported in 2 Atk. 496, (and the same principle is to be found in many otheP cases,) “that in'mortgages the want of a covenant for the repayment of the mortgage money is no bar to a redemption.” For although there is no bond or covenant for the payment of the mortgage money, yet the mortgagee is not without remedy. See the case of King v. King, and Lord Hardwicke’s decree thereon, cited by Lord Talbot, which was the case of a ship mortgaged and then taken at sea, and there was no covenant for the payment of the money. Although the ship could not be said.properly to be in the dature of a pawn, since the mortgagor had gone in her to sea, yet the executors of the mortgagor were decreed to pay the money for which the ship was mortgaged. For it is said in these cases, that every mortgage implies a loan, and every loan a debt. So in case the mortgagor be evicted, or the.property mortgaged be not of value sufficient to pay the debt, as agreed by the counsel in the case of Howell v. Price, the mortgagee might in Equity recover the money against the mortgagor. But in this case, if the negro woman died, it ivas the loss of the Defendant ,• and with respect to him, it cannot be said, as in case of mortgages, that there is a debt due. As the negro has lived and become valuable by her increase, the Defendant is entitled to the benefit arising therefrom. Agreeably to the Complainant’s view of the case, the Defendant might lose, but could not gain. As Defendant has run the risk of a total loss, he shall have the gain that has been made. As to the length, of time, it is only necessary to remark, that under the particular circumstances of this case, it strongly fortifies the Defendant’s situation. Let the bill be dismissed. 
      
       3 P. Wms. 388.
     
      
       1 P. Wms. 271, 291.
     
      
       Id.
     