
    Heirs of Singleton v. Dicey Kelly & Dicey Kelly, Tutrix.
    Construction of a written instrument purporting to transfer title to slaves, executed in Mississippi, containing the following clause: “ The condition of the above bill of sale is such that, whereas, the said Ichabod Kelly has paid and furnished the said Vincent Si/ngleton divers sums of money which, when fully paid by the said Singleton to the said Kelly, will render this bill of sale null and void; and, provided, further, that should the said Singleton die without refunding said Kelly said sum of money, then and in that case, the said Ichabod Kelly, his heirs or assigns, is hereby and forever exonorated from any further liability for any further sum or sums of money to the said Vincent JS. Singleton, his heirs or assigns. But that the absolute right and title of said negroes shall fully vest in the said Ichabod Kelly, his heirs and assigns, forever.”
    
      Held: that it is, to all intents and purposes, an act of sale defeasible upon the performance of certain acts by the grantor in his lifetime. Even were it to be considered in the nature of a mortgage, it would have conveyed the legal title under the law of the place where the contract was made. And before the mortgager could have exercised his equity of redemption, he would have been obliged to tender a full discharge of the debt for which the security was given.
    Mgrriok, 0. JM dissenting. The instrument is a deed of trust to secure the payment of a sum of money.
    APPEAL from the District Court of the parish'of Morehouse, Barry, J.
    
      Matthews, for plaintiffand appellant. Boberlson and Todd, for defendant.
   Spofford, J.

The motion to dismiss the appeal is overruled. The consolidated cases in which the appeal was taken, are identified by the petition and order of appeal, and the bond is given in favor of the proper party, both in her individual and representative capacities. The pleadings disclose the names of the minors to whom she is tutrix, and the bond would inure to their benefit.

Upon the merits, the cause must be decided by the construction given to the written instrument executed in Mississippi, by the aneester of the plaintiffs, on the 17th December, 1845. The instrument must speak for itself, unaided by parol evidence. It is, to all intents, an.aet of sale with a condition that it shall be defeasible upon the performance of certain acts by the grantor in his lifetime. So fiir'as appears, the grantor died without performing the acts, and the deed thus becomes absolute. Indeed, the plaintiffs, heirs of the grantor, have not pleaded that their ancestor ever paid to the grantee the moneys which were necessary to operate a defeasance of the deed. ¿

They argue that the act was a pledge and not a sale; and that, neither at its date nor at the death of their ancestor did it convey any title to the defendant’s author. There were all the requisites of a sale; a thing, a stipulated price, and a consent. Even were it to be considered in the nature of a mortgage, it would have conveyed the legal title under the law of the place where the contract was made. And, before the mortgagor could have exercised his equity of redemption, he would have been obliged to tender a full discharge of the debt for which the security was given, a tender which has not been made. There is nothing to show that the contract was an antichresis made in contemplation of the law of Louisiana, whither the contracting parties subsequently removed.

The judgment is, therefore, affirmed with costs.

Merrick, C. J.,

dissenting. The instrument get up as title by the defendants is evidently one of those deeds of trust, common in the State of Mississippi, to secure the payment of a sum of money. The sum of two thousand dollars, named in the body of the instrument, is merely a nominal sum, as is apparent from the condition, which is in these words: “ The condition of the above bill of sa]e js sucj); that, whereas, the said Ichabod Kelly has paid and furnished the said Vincent Singleton divers sums of money which were fully paid by the said Singleton to the said Kelly, will render this bill of sale null and void; and, provided, further, should the said Singleton, die without refunding said Kelly said sums of money, then, and in that case, the said Ichabod Kelly, his heirs and assigns, is hereby and forever exonerated from any further liability for any further sum or sums of money to the said Vincent B. Singleton, his heirs or assigns, but the absolute right and title of said negroes shall fully vest in said Ichabod Kelly, hi's heirs and assigns, forever.” This instrument bears date 17th December, 1845. It does not appear to have been recorded in Mississippi, and was not re--, corded in Louisiana until December, 1849.

Singleton died in November, 1846, within a year from the date of the instrument. This estate was administered by the Clerk on the oath of Kelly, as an estate under the value, ($500,) and as consisting entirely of movables. Kelly having bought at the probate sale of Singleton property to the amount of $187 75, presented the remaining notes which were secured by the deed of trust, and which amounted to $401, and a note of a later date of $167 89, to the administrator, and obtained from him a credit to that amount upon the purchases, by allowing the same as a credit upon the notes of Singleton. Having, therefore, instead of living content with his stipulation, that he should not be compelled to pay anything more for the negroes after the death of Singleton, undertaken to exact the notes which were secured by the instrument, a Court of Chancery, in my opinion would, notwithstanding Singleton’s death, at once hold the instrument as a mere security for the loan of a sum of money, and decree the property to the plaintiff, on paying the defendants the excess, if any, of the notes over the time of the negroes. I, therefore, think the same judgment ought to be rendered here, and that the judgment of the lower court ought to be reversed.  