
    Walter Goodman et al vs. L. P. C. Burford.
    B. purchased a slave of W. in February, 1843, and gaveW. $350 for him, and agreed to permit W. to redeem the slave either in September or November following, by paying $400: W. failed to redeem at the time and B. gave him $ 150 dollars more and took a bill of sale from W. at which time B. gave W. also the privilege of redeeming the slave if he could sell him for more money ; W. on the same day sold the slave for $25 more to L. B.; and B. gave W. the bill of sale he had received ; and L. B. paid the money in part to B. and part to W. who paid the rest to B., and W. gave L. B. a bill of sale of the slave; G. obtained judgment against W. after the time limited for redeeming and before the payment by B. to W. of the one hundred and fifty dollars on the sale to L. B.; W. up to the time of sale to L. B. had retained possession of the slave; G. levied an execution on his judgment on the slave in the hands of L. B. which the latter enjoined : Held by a majority of the court, that the title to the slave was vested in B. by the sale of February, 1843, and that his permission to W. to redeem was merely ex gratia; and his payment of the $150, a gratuity ; and the formalities observed respecting the return of the bill of sale and the execution of the bill of sale by W. to B. amounted to nothing in a case of bargain, sale and delivery of personal property.
    
      Held, also, that even if the agreement to redeem had formed a' part of the contract of first purchase, and had actually existed even up to the date of G.’s judgment, the lien of the judgment existed only upon the mere contingency or privilege which W. failed to avail himself of; and that the injunction against the judgment at law was properly perpetuated.
    Mr. Justice Clayton dissented from these views, and held that the first sale to B. was a sale with liberty to repurchase on a given day ; the judgment of G. obtained before that day bound the equitable right of W. to redeem the slave in the hands of B ; and was a lien on the slave, to be enforced in equity to that extent: as, that value was estimated at one hundred and fifty dollars the injunction should have been dissolved to that extent.
    On- appeal from the circuit court of De Soto county; Hon. James M, Howry, judge.
    
      L. P. C. Burford charges, in his bill, that an execution issued from De Soto circuit court on the 24th of November, 1843, founded on a judgment in that court in favor of Goodman & Means, for $79.58 against Benjamin B. West, and that it was levied on a slave named Isaac, as the property of West.
    That William A. Brown, in January, 1843, purchased the boy Isaac from West and his wife, and paid $550 for him, and took their joint bill of sale for him; Brown agreeing that if they could sell him for more than $550, he would relinquish his title upon the repayment of his money. That Burford, in November, 1843, agreed with West about the purchase of the boy, and paid “ or caused to be paid,” the $550 to Brown and $25 to West, but failed to take an assignment from Brown of the bill of sale executed to him by West and wife. That the boy was Brown’s property before the date of the judgment, and that the right passed from Brown to complainant, when he purchased, or that the sale to Brown was conditional, and that the title to the boy was in West’s wife, subject to the condition, and that the boy never belonged to West. That West removed from De Soto county with sufficient property to have satisfied-the judgment, since the judgment was rendered. The prayer was for an injunction to be made perpetual.
    In their answer Goodman & Means a,dmit the judgment, execution and levy, as charged : Require proof as to the alleged sale of the negro boy to Brown, by West and his wife: Deny that the boy was Brown’s property, and insist that when Brown’s money was repaid to him, the title reverted to West r Deny that West’s wife ever had any title to the boy: Are informed and believe that West ran away about the 1st of November, 1843, to avoid his creditors, and that he carried off property, but deny that they knew the fact at the time.
    Vincent Haralson testifies, that West married his daughter in December 1837, and that he gave West a negro girl named Henn'ey, in the Spring of 1838, and has since seen the girl in the possession of Lemuel H. Cole.
    Lemuel H. Cole testifies, that in 1842 he exchanged with West a negro man named Amos for a girl named Henney, and afterwards exchanged with him a negro boy named Isaac for Amos. That he made a bill of sale to West for Amos, but West afterwards requested that it should be made to his wife, which was done. In August, 1846, witness, saw Isaac at work on West’s Plantation.
    William A. Brown testifies, that in February, 1846, he purchased the boy Isaac from West for $>350, and agreed that he might redeem him in September or November following, by his paying four hundred dollars — that West failed to redeem him at the time and he gave him $150 more, and took his bill of sale and that of his wife in November, 1843, at which time he gave him also the privilege of redeeming the negro, if he could sell him for more money. West sold the boy to Burford on the same day, before the witness had left town, for $25 more than witness had paid, and witness then gave West up his bills of sale; West telling Burford, who was counting the money, to pay it to witness, which he did in part, and West paid witness the balance and gave Burford a bill of sale. That he considered his purchase an absolute one and granted to West the privilege of reselling by refunding the amount paid. That Burford asked him if he would relinquish his title to the slave, to which he replied that he would do so to West, when his money was paid, and not till then. That West then had in his possession a negro woman, a stud-horse and a saddle-horse. He did not propose to assign his title to Burford, nor to sell Isaac as his property; the agreement to allow West to redeem was part of the contract of sale at the time it was made. He never had the boy in possession; he always remained in West’s possession. The redemption money did not all come from Burford, but the greater part of it did.
    There was other testimony taken, not, however, varying these facts.
    Upon this state of facts the court pronounced a decree perpetuating the injunction.
    
      William. F. Stearns, for appellants.
    1. Even supposing that the negro girl Henney, with which West acquired Isaac, had been given to West’s wife, by her father, yet as the gift was made in 1838, before the passage of “ woman’s law,” the property vested in West, whose subsequent conduct, in procuring a bill of sale to be made to his wife, could not divest him of the property in her favor. The property, then, was West’s up to the time of the conditional sale, or pledge to Brown.
    2. Burford traded, not with Brown, but with West, a/id as soon as Brown received his money back, the negro was West’s property, and the lien of our judgment, attached. There is no proof as to the date of our judgment, but this court, I presume, judicially knows that the De Soto circuit court was held in September, in 1843. Our judgment, therefore, must be older than Burford’s purchase, and it follows, as I conceive, as a necessary consequence, that we had a lien which we had a right to enforce by a sale of the property.
    3. If we had seen West going off with his property, and knew that he had sold a negro to Burford, it would, certainly, be inequitable to permit us to proceed against that negro in the hands of Burford, provided we had done anything to prevent our execution from being levied on the other property. But no knowledge of the fact of the removal, or of the intention to remove, is brought home to us.
    
      McNutt and Paxton, for appellee.
    1. The payment to Brown, and the purchase by Burford, were parts of one transaction ; the money was paid by Burford to Brown directly; and the purchase was of Brown’s interest, which was that of absolute ownership.
    2. An equity of redemption in personal property, is not liable to sale under execution at law. Thornhill v. Gilmer, 4 S. & M. 158.
   Mr. Justice Thacher

delivered the opinion of the court.

Burford filed his bill in equity in the circuit court of De Soto county, to enjoin a sale under execution, of a slave, which he claimed as his property. This execution, which bore date the 24th day of November, 1843, was issued upon a judgment obtained against Benjamin B. West. In the month of January, 1843, and prior to the rendition of the judgment aforesaid, West sold the slave in question to William A. Brown for $350, who also agreed that West might redeem him in either the month of September or November following, upon paying $400, which West having failed to do, Brown in November, 1843, gave West $150 more, and took a bill of sale of the slave from West and wife. At this juncture, Brown again agreed that West might redeem the slave, if he could sell him for more money, and the same day he bargained with Burford for the sale of the slave, at an advance of twenty-five dollars over Brown’s amount of purchase-money. Burford received the slave from Brown upon paying him $500, and took a bill of sale from West. Brown gave up to West his bill of sale.

The testimony of Brown proves that his purchase of the slave in February, 1843, was bona fide. He says that he purchased the slave of West in February, 1843, for which he gave him $350, and agreed to let him redeem the slave in September or November following. Brown does not say that the sale was not absolute to him, or that the agreement permitting West to redeem the slave was a part of the contract of the sale. The language will not bear such a construction that the agreement constituted a part of the contract, nor will the supposed inadequacy of the consideration aid in supporting such an opinion. Lane v. Dickerson, 10 Yerg. 373. This agreement was altogether ex gratia upon the part of Brown, for the testimony elsewhere- shows a strong disposition on his part to befriend West, who was in difficulties. Brown adds that West failed to redeem the slave at the time allowed, whereupon Brown also adds he gave West $150 more, and took a bill of sale from him and his wife. This 'sum can only also be considered in the light of a gratuity, for he had distinctly declared previously that the purchase-money was fixed at $350. But even after this gift of $150, Brown expressed his willingness that West should sell the slave again if he could find a purchaser, at a greater sum than $500, which he had already given, and this actually occurred. These circumstances only evince a liberal spirit of generosity in Brown towards West. The sale to Brown in February, 1843, was bona fide and absolute, but admit that the agreement to redeem actually existed even up to the time of the date of the judgment upon which the execution issued, the judgment became a lien only upon a mere contingency or privilege which West failed to avail himself of. There was never a period after the original sale to Brown, that the title to the slave became reinvested in West. The sale to Burford by West was but the exercise of an agency allowed him by Brown, and was not a transfer of title to West. The formalities observed respecting the return of the bill of sale, and the execution of a bill of sale by West to Burford, amount to nothing in a case of bargain, sale, and delivery of personal property.

Decree affirmed.

Mr. Justice Clayton

delivered the following dissenting opinion.

I differ from the majority of the court in this case. Brown, whose deposition is taken, thus states the .transaction : “I purchased Isaac of West in February, 1843, for which I gave him $350, and agreed to permit him to redeem said negro in either September or November following, by his paying $400. West failed to redeem at the time, and I gave him $150 more and took a bill of sale from him, at which time I gave him also the privilege of redeeming said negro, if he could sell him for more money. Before I got out of town on this last mentioned day, West sold Isaac for twenty-five dollars more than I had given him, to Burford, and I then gave him up, viz. (West) the bill of sale, when Mr. Burford, who was counting the money for West, was requested by West to hand it over to me; he did so in part, and West paid me the balance, and gave a bill of sale to said Burford.”

In answer to a direct interrogatory on the subject of this last sale, Brown said, he considered the purchase absolute, and granted to West the privilege of reselling by refunding the amount I paid him for the boy, as a matter of contract.”

Brown did not at any time have the negro in possession, but he remained with West until delivered to Burford.

In my view, the original contract, as detailed by Brown, was either a mortgage or a sale, with liberty to repurchase. If closely scrutinized in connection with the other testimony, it was probably the former, but I shall regard it as the latter, because that is the most favorable position for Burford. The contract then passed the legal title to Brown, with an equity in West to divest such title, by a given day, by compliance with certain terms. By such compliance, the title would revest in West.

The judgment of Goodman & Means was obtained before the day appointed for repayment or repurchase, and it bound this equity. It became a lien which they could have enforced, as against West and Brown both, in a court of chancery. The judgment bound the actual interest of West, whatever it might be.

Brown paid West $150 for this right of repurchase, after it was bound in his hands by the judgment. When West sold to Burford, Brown surrendered his title to West, who made a new title to Burford. Brown says expressly, he neither pretended to sell the boy to Burford, nor to assign him the bill of sale. At most, West could only pass to Burford .the interest of Brown; this was incumbered by the lien of the judgment, to the extent of the $150, which was the agreed value of the right of repurchase.

There is room to contend that the whole title was bound by the judgment, as soon as it revested in West. But I look at the substance, rather than the form, and limit the lien, as it existed in the hands of Brown. But there was a clear vesting of the legal title in West, at the moment; the lien which had attached to the equity adhered to it, and became operative upon the legal title in his hands, and subject to the execution. Bur-ford received the title in that condition. A transitory seisin for an instant, will not let in an incumbrance, to the manifest injustice of the case. 4 Kent, 38. Yet a court of equity may lay hold of this instantaneous seisin to work out the ends of justice.

In this case that end seems to me to be promoted, by holding that the lien is entitled to satisfaction pro tanto, out of the equity of West, which became annexed to the legal title in his hands after the judgment, for the purpose of his making title to Burford. And this is especially the case, as Brown never had possession of the slave nor title, but for a few hours by bill of sale. Even his preference over the judgment creditor is, in my apprehension, by no means free from doubt.  