
    *Ransone v. Frayser’s Ex’ors.
    February, 1840,
    Richmond.
    (Absent Brooke and Parker, J.)
    Mortgage — Absolute Sale — Case at Bar, — Upon a bill in chancery respresenting an absolute bill of sale of slaves as in fact a mortgage or pawn to secure payment of money lent, the case was, according to the plaintiff’s pretensions, that while he was to retain possession of the property, there was no time appointed for payment of the money, nor any stipulation for payment of interest, nor any bond or note taken for the debt, so that the borrower had time during his whole life to pay the money. Held, such circumstances, added to the absolute form of the written contract, would alone suffice to shew, that a mortgage was not intended.
    By an instrument under seal, dated the 26th August 1826, Thomas Ransone acknowledged the receipt of 800 dollars from Robert Fray-ser, in full for the purchase money of a female slave and her four children, and conveyed the slaves absolutely to Frayser, with warranty of the title. The slaves were delivered to Frayser on the same day, or not long afterwards, and they remained for some time, though not long, in his possession, and then he hired them to Ransone from time to time. The hire agreed on for the year 1828 was 20 dollars ; and in May 1828, Ransone gave Frayser his bond for that sum payable on the 25th December following. I with a convenant to return the slaves well' clothed on that day. Frayser died in July 1828, and by his will bequeathed thésé slaves to one of his daughters. At the end of the year, Ransone, being desirous to hire the slaves for another year, made application to the legatee to hire them to him ; which she refused to do; End then he refused to deliver the slaves to Frayser’s executors ; upon which one of the executors went to Ransone’s house, and took possession of the slaves, and delivered them to the legatee. Thus far,' the facts of the case were not controverted. *In August 1833, Ransone exhibited a bill in chancery, in the circuit superior court of Cumberland, against the executors of Frayser; alleging, that though his bill of sale of the slaves to Frayser, of August 1826, was absolute upon its face, the transaction was in fact a pawn or mortgage of the slaves to Frayser to secure the payment of 800 dollars lent by Frayser to him, upon an agreement, that Ransone might hold the property, and redeem it upon repayment of the .money at any time ; and praying, that he might be now allowed to redeem ; and to that end, that the slaves might be sold, and the proceeds applied to the payment of the balance which should remain of the debt and interest after deducting the profits which had accrued since the defendants had got possession of them (of which an account was asked), and the surplus decreed to him.
    Frayser’s executors answered, that the transaction was, what it purported to be by the bill of sale of August 1826, an absolute sale of the slaves to their testator, for a full price paid down.
    On the part of Ransone, one witness deposed, that he was present when the original agreement between Ransone and Frayser was made, and that the contract was, that the slaves in question were to be put into Frayser’s hands as a pawn for 800 dollars lent by him to Ransone, and that the latter was to be at liberty to redeem them whenever he should return the purchase money. And three other witnesses deposed, that Frayser told them, at several times, that Ransone had a right to redeem the property, at any time, by returning the money.
    On the other hand, three witnesses deposed, that Ransone told them, at several times, that he had sold the slaves to Frayser for 800 dollars, representing the transaction as an absolute sale, without any apparent1 motive so to represent it, if it was not the truth. There was proof that Frayser intended to lay out his money in a purchase of slaves, and regarded the slaves conveyed *by Ransone’s bill of sale as his absolute property. A witness, who drew the bill of sale, deposed, that he understood the contract to be an absolute sale, nothing being said by either party to intimate that a pawn or mortgage was intended. Nor was there any reason shewn, or even suggested, to account for the omission in the written contract of any mention of the right of redemption, if a pawn or loan was intended under the form of an absolute sale. A physician who attended the family of slaves at Ransone’s house in 1828, was told by him to charge his bill for medical services to Frayser. It was proved, that 800 dollars was a full and fair price for the property at the time of the contract. Ransone adduced no proof, nor did he even pretend, that any time was appointed for the repayment of the money, or for the payment of interest. Nor did he account, or attempt to account, for the fact of his having given a bond for 20 dollars for the hire of the slaves for the year 1828; a sum less than half the annual interest of the money he said was lent him by Frayser.
    
      The circuit superior court dismissed the bill. And on the petition of the plaintiff to this court, an appeal was allowed him.
    Robertson, for the appellant.
    Eeigh, for the appellees.
    
      
       Mortgage — Sale.—In Edwards v. Wall, 79 Va. 322, the plaintiff claimed that a conveyance absolute on its face was intended as a mortgage to secure a loan. No personal security was taken for the alleged loan, nor was there any agreement between the parties either as to the payment of interest or the repayment of the principal. The court, on the authority of the principal case, held these to be important circumstances in determining whether a mortgage or sale was intended.
    
   TUCKER, P.

I think the weight of the parol evidence in this case decidedly with the appellees. I take occasion to remark how dangerous is the admission of the testimony of witnesses, to change and modify the agreement of the parties by. setting up a secret trust or right of redemption. It is not denied, that such testimony is admissible ; but whether it was wise to have established the rule, except in cases of fraud, or oppression or mistake of the scrivener, may well be doubted. Here are four witnesses, who swear *to facts which, standing uncontradicted, might have established this transaction as a mortgage : yet the facts and circumstances are conclusive of the contrary. In the first place, here is an absolute bill of sale, for which there seems to have been no assignable motive on the part of Ransone. He was not in the power of Fray-ser. He does not pretend, that the instrument was intended to be otherwise written, and that it was fraudulently imposed upon him in its present form. It was drawn not by Frayser, but by a third person, and that person (the only one present) heard nothing of a right of redemption. It is not pretended, that Frayser had insisted as a condition of the loan, that Ransone should not disclose the real character of the transaction. What, then, could have been Ransone’s motive for suffering the instrument to be drawn as a bill of sale with a warranty, if he was to have the right to redeem ? He must have known the difference. And what was his motive for the various gratuitous falsehoods to numerous witnesses, to whom he repeatedly acknowledged he had sold the slaves to Fray-ser ? for the dishonest act of refusing to pay the physician for his services to his own slaves ? for giving his bond for the hire of his own property ? Was it that he did not know he could establish his rights ? His witnesses were his near connexions, and always at hand. Was it that he was in Fray-ser’s power ? According to his version of the transaction, Frayser was in his power. For he had lent him 800 dollars for an indefinite period ; he had taken a mortgage for his security with an indefinite power of redemption at any time during life ; and he had neither bond, note nor covenant for repayment. In the mean time, Ransone held the slaves ; and, according to the ordinary course of things, had a right to the possession of them until default made in payment, which could not be while he lived. Moreover, there was nothing to bind him to annual *payments of interest, so that Frayser could neither recover from him principal nor interest during his life; while, according to Ransone’s pretensions, he had a right to retain the property as his own during the same time. This state of things negatives, beyond question, the notion of his being in Frayser’s power, and acting and speaking under duress of circumstances. But it likewise negatives, decisively, the pretension that this was a mortgage. It is not conceivable, that the parties, situated as they were, ever should have entered into such a contract: that Frayser ever could have lent his money, without any definite period of repayment, and without bond, note or covenant for its return ; depending only upon a mortgage of a female slave and her children, and such a mortgage as never could be foreclosed as long as the borrower lived. This circumstance, then, and the absolute form of the bill of sale are, in my opinion, sufficient to give the stamp of falsehood to the appellant’s pretensions, and to shew the extreme danger of permitting the written evidences of contract to be disarmed of all their obligation, by parol evidence of secret trusts and pretended equities of redemption.

Decree affirmed.  