
    Hickman vs. Cantrell.
    A bill of sale was made absolute on its face and signed by the vendor, attached to that was a condition signed by the vendee, which wrsin these words: “The condition of the above obligation ⅛ such, that if the said II shall well and truly pay to said C the above mentioned sum of money, without interest, by the first day of January, 1827 then”&c: Held not tobe a mortgage upon its face,but a sale with liberty to ie-purchase. Held, ateo, that the word “pay,” introduced into the condition, did not constitute a covenant upon the part of the veudor to pay the money.
    To make a deed of conveyance a mortgage upon its face, it must show that the consideration which supports it was either a debt due or money lent at the time of its execution, or it must contain an express covenant for the payment thereof.
    It is the intention, of the parties at the time that converts an absolute deed into a mortgage, and this may be shown by parol proof.
    In the case of sales with liberty to re-purchase, the condition to re-purchase must be stiictly performed, and if not complied with equity will not íelieve; but where there is the least tincture of fraud or oppression, equity will interpose and grant relief.
    If, who had the liberty by a condition under seal, of re-purchasing property conveyed by an absolute deed, appliedho G to take an assignment of the condition, pay the money and take a conveyance of the property as security for the money: G naieed to do so; they went to C on the day appointed; G tendered ti e money and reques'ed a conveyance io himself of the property by C: C. refused to convey to G, but offered to receive the money and convey to II, which G refused: Held not to be a performance of the condition upon the part of II. Held, also, that C was no? bound to convey to any other person than II.
    In cases of sales upon condition of rc-purchase, the tender of the money must be made with all the fonr.aliiUs requhou l y I.iw.
    This bill is filed by complainant Hickman, to redeem a negro named George, which he alleges he mortgaged to the defendant Cantrell. It charges that on the 5th day of January, 1826, complainant borrowed of defendant four hundred and fifty dollars, and executed a bill of sale for said negro, absolute in its face, to which was attached a condition in these words:
    “The condition of the above obligation is such, that if said Hickman shall well and truly pay to said Cantrell the above mentioned sum of money without interest by the first day of January, 1827, then this bill of sale for said negro boy shall be void and of no effect, otherwise to be good and valid.
    “Signed, Stephen Cantrel.
    That the same was designed and intended as a mortgage to secure the four hundred and fifty dollars; that on the day appointed, he prevailed on Michael Gleaves to advance the money to the defendant, take the boy into his possession, and allow him a longer lime to redeem him; that 
      they went together to the defendant and proposed to pay him j o x x i j the four hundred and fifty dollars if he would transfer or sign his interest in the negro to Gleaves. This he refused to do, hut said he was willing to receive the money and deliver the negro to the complainant; but Gleaves would not agree to advance the money and receive a title from the complainant, and there the proposition ended. The bill prays an account and for liberty to redeem.
    The defendant in his answer expressly denies that the transaction between him and complainant is a mortgage, or full was intended as such, but that it was a purchase made for a price, with liberty to the defendant to re-purchase. He says that complainant came to him and asked him if he did not wish to buy a negro boy fourteen or fifteen years old; to which he replied, that he did, if he was pleased with the "boy’s appearance and the price. A few days afterwards complainant brought the negro to him, and asked as the consideration of the purchase four hundred and fifty dollars, which he agreed to give. That before the bill of sale was written and executed, the complainant asked him if he would permit him to re-purchase the boy at the end of the year, by paying the purchase money. To which proposition be replied, that if a contract could be entered into without being a mortgage he would, but not otherwise. That he was advised by his attorney that this might be done by a contract to purchase, with liberty to re-purcliase, of which complainant was informed. That they then, complainant and defendant, went to the attorney and directed him to draw the contract, which was done. It was signed by the complainant and the money paid by the defendant. Defendant admits, that on or about the first day of January, 1827, complainant and Gleaves came to redeem the hoy, and proposed to pay the money if he would execute a bill of sale to Gleaves, which he refused to do, because he did not wish to make himself responsible for the title to the negro, but was willing to give a bill of sale to complainant up-, on payment of the money; but Gleaves refused to take a title from the complainant, or to have any tiling more to do with the negro, unless defendant would make an absolute bill of sale to him, which he declined doing, and there the proposed -arrangement ended.
    The bill of sale and condition was executed in ‘duplicates. One copy was retained by Cantrell, the other by Hickman. Hickman assigned his interest therein to Michael Gleaves in writing, to induce him to advance the money, and as a security therefor, Gleaves gave back the paper when Cantrell refused to convey to him. James P. Clark, the attorney who drew the bill of sale proved, that four hundred and fifty dollars was a fair price for the boy at the time of the sale; that he drew the bill of sale and the condition thereto at the request of the parties; that both of the parties told him it was not to be a mortgage, but a sale with liberty to re-purchase. Michael Gleaves proved that he received an assignment from Hickman of his bill of sale and condition, and that he agreed with Hickman on the 1st day of January, 1827, to advance the four hundred and fifty dollars to Cantrell, and take the negro; that on that day he and Hickman went to Cantrell and he proposed to pay the money if Cantrell would receive it and convey to him, that Cantrell refused to convey to him as he did not wish to render himself responsible in any way for the title to the negro, but said that he would receive the money, convey the negro to Hickman, and that he might convey to him. This proposition witness refused and there ended the matter. Nomoney was actually produced and offered to Cantrell. The circuit court dismissed the bill and complainant appealed to this court.
    
      tMeigs, Rucks and Thompson, for complainant.
    The bill takes two grounds, 1. That this transaction is a mortgage. 2. But if it is not a mortgage, but a defeasible purchase, or conditional sale, then the stipulation for the re-vesting of the title, was sirictly complied with. And it states, on this last ground, that on the 1st of January, 1827, complainant went in company with Michael Gleaves, and proposed to pay him the four hundred and fifty dollars, he transferring or assigning .to Gleaves, who was to advance the money, his interest in the boy, which Cantrell refused.
    
      The answer admits this statement, and excuses his compliance with the proposition, because he knew that com-n . . plamant was embarrassed, and executions were then out against him, and he would not risk responsibility to Gleaves for the title.
    1. This is a mortgage. Longuet vs. Scawen, 1 Yez. Sen. 406. 2. But if it is a defeasible purchase, the stipulation to re-invest the title in Hickman, was strictly complied with. 1’Powell on Mort. 130: Though there is no express stipulation, that on performance of the condition, Cantrell should recovery to Hickman, such conveyance is clearly necessary, and therefore implied. Cantrell’s refusal to recovery to the assignee of Hickman, for the reasons assigned in the answer, is a mere evasion. It could not, by possibility, have made him responsible to Hickman’s creditors.
    If a covenant to repay the money is necessary there is such a covenant in the condition to this bill of sale. It is the act of both, the condition being for the benefit of Hickman, and to take effect, “if he shall pay the money on a day certain,” creates a covenant upon the part of Hickman to pay the money.
    “No particular technical words are required towards making a covenant.” These are the words of Lord Mansfield, 1 Burr. 290.
    “I oblige,” “agree,” “I bind myself to pay so much at such a day, and so much at another day.” “I am content to give to A ¿610 at Michaelmas, and ¿610 at Lady-day.” Platt on Covenants.
    If it be agreed between two, that one shall pay the other a sum of money for his lands on a particular day, these words will amount to a covenant on part of the latter to convey the lands. Platt, 30, where is cited Pordage vs. Cole, 1 Saund. 319. And see William’s note, 3, where it seems that the owner of the land did not seal the paper, and yet was held to having given an action against himself by the word “agreed.”
    This is going a great way, but as it was a case before the statute of frauds, the paper was evidence on which an imP^e(^ agreement to convey could be raised, on which the action would lie. ⅜
    ⅜ Bat m our case the bill of sale and condition ave to be ta]¿en a3 sealed by both, because it is one paper, and each shall be understood to have used words which are obligatory on him. Thus the word pay, in the condition, is the language of Hickman, because they were intended to create an obligation on him, or rather, that is their proper and only effect. King vs. King., 3 P. W. 35S: Millor vs Lees, 2 Alt. 491.
    
      J. 8. Yerger and Win. E. Jlnderson, for defendants,
    1. It is the intention of the parties at the time, that con» verts a deed absolute upon its face into a mortgage. The evidence of this intention may be derived from the deed itself, or from parol proof of the dealings and transactions of the parties. If we look to the proof without the deed and condition, it will clearly appear that these parties designed a sale with liberty to repurchase and not a mortgage. If we look to the deed and condition annexed thereto, it will he seen, that an absolute sale, with liberty to repurchase, was intended, and not a mortgage. 2 Yerg. Rep. 6, 215: 4 Kent’s Co. 136, 142: 1 Call Rep. 250, 255, 2S0: 4 Hen. and-Mun. 101, 112: 7 Cranch. Rep. 237, 241: 2 Pet. Cónd. R. 479: 1 Powell on Mort. 13S, (a) 172, 126 (a), 121 (a): 2 Call. R. 354: Hicks ⅜ Hicks vs. Jforris, 5 Gill & John, Rep. 75: 4 Mun. 40: 2 Ball & B. 274.
    In this case all the requisites of an absoluto sale to be void on a condition are to be found. 1. A full and fair price. 2. A delivery of the negro to Cantrell. 3. The want of a covenant from Hickman to repay the money.' 4. The negro was at Cantrell’s risk. 5. A deed absolute on its face. 6 No reservation of interest. 2 Yerg. Rep. 6, 215: 5 Gill & John. 75.
    The time that has elapsed since the sale and refusal by Cantrell to return the negro to Hickman, is a circumstance to show that the sale was absolute.
    2. A mortgage is a conveyance of property to secure a debt, or money loaned, with a condition if the money is paid by a given day, the conveyance shall be void. A gaee recites the indebtedness of the mortgagor, or that he lias a ° . ii borrowed money, and contains a covenant to pay back, upon which an action may be brought, if the property is lost or destroyed.
    A conditional sale is a conveyance or sale of property foi a consideration agreed upon between the parties, with a condition, that if the vendor pay back the sum given for the property, or some other specified sum, by a given day, that then the same shall be void, or the property be re-conveyed. In the first, the whole transaction is to secure the vendee, in the latter, the condition is for the benefit 'of the vendor. 3 Hay. Rep. 181.
    To make a mortgage the deed must show on its face, that there was a previous debt, or money borrowed, and contain an express covenant to repay the money, o, if it does not, the fact must be proved by parol, or in some other way, and that the debt is still due. 4 Kent’s Com. 445: 7 Cranch⅜ 218, 237.
    In this case the conveyance is absolute and signed by Hickman, then comes the condition above recited. The condition does not recite any previous indebtedness, nor does it recite that Cantrell had loaned the money. The condition refers to what? An absolute sale; and being attached to it, must in law be made to read as if the defeasance or condition were distinct. In this case, the deed itself is the recital that would be made in a distinct paper thus: “Whereas Thomas Hickman has sold to me a negro, boy George, fifteen years old, for the sum of four hundred and fifty dollars, and conveyed him to me by a hill of sale. Now if the said Hickman shall pay me said sum of four hundred and fifty dollars, on the 1st day of January, 1827, said deed shall be void, or I will reconvey.” This is the substance of the transaction: 1st. A sale is made. 2nd. A deed adsolute on its face is made. 3rd. A condition referring to that sale allows Hickman the privilege of paying back the price, and getting back the negro, which being done the deed is void. The condition is put there, for die benefit of Hickman and not Cantrell.
    
      There is no authority to be found in the books that show J the word “pay” is to be considered an admission that there was a previous absolute debt. A
    . This construction is fortified by the fact, that the condition is signed by Cantrell, not by Hickman. Hickman says, when he speaks in the contract that be has sold and conveyed a negro to Cantrell, and not that he owes Cantrell one cent. This is the language of his deed. Cantrell says, when he speaks, “if Hickman will pay me by the 1st of January, 1827, the sum, &c.” What sum? not the sum loaned by, or due to Cantrell, but the price of the negro This is the covenant of Cantrell, not of Hickman. Hickman neither covenants expressly to pay, nor does he admit any indebtedness, on the contrary, he expressly says by his deed, that he has sold. Cantrell, it is true, agrees, “if Hickman shall pay, &c. There is no covenant express or implied upon the part of Hickman to pay. The condition is a mere privilege to Hickman, which it is optionary with him to perform, or forfeit as he may choose; and no action will lie against him in favor of Cantrell upon not complying with it, it not being obligatory. 2 Bac. Ab. 64: Yelverton’s Rep. 206: 3 Com. Dig. (Covenant A. 3,) at top 252: 10 John. Rep. 57: 1 Paine’s Rep. 422: Cro. Jac. 281: Platt on Cov. 37: 3 Law Lib. 17: 1 John. Ch. R. 282, 37fi; 4 Kent’s Co. 445.
    In the case of Burnet vs. Holt, 2 Yer. Rep., and Britton -vs. Scott, 2 Yerg. Rep. and in 2 Call’s Rep. 254, 257, and 7 Crach R. 218, the words, “if he shall.pay,” were used as well as here. In these cases the courts decided, that there was no promise to repay the money, and none could be raised from the words used. That it was amere condition, of which the vendor could avail himself or not, as he might see fit.
    3. If the negro had died in the mean time, Cantrell could not have sued Hickman for the money, because Hickman had not agreed that he would pay the money; but only desired and obtained the privilege to repurchase the property. He could well have answered, I sold to you.
    If Hickman had tendered the money on the day specified, and it had been refused by Cantrell, he. could not have compelled Cantrell to reconvey, because of the want of mutuality . J , m the contract. Cantrell could not say to him, you shall take the negro. The rule of chancery is, that if there be a want of mutuality in the contract, that is if both parties could not compel a specific performance, or if the contract be hard or unreasonable, or if it grow out of a condition thereto, which is merely optionary with the complainant to perform or not, as he may choose and which he could not be compelled to perform, equity will not interpose to perform it. 1 Mad. Ch. 422, 423: 1 Sch. & Lep. 13, 20: 3 Ball & B. 349; New. on Con. 152, 153: 2 Yern. 415: 11 Vez. 592'i 1 John. Ch. R. 282, 329, 370: 1 Fon. Eq. (ed. of 1831,) 49: Jeremy’s Eq. 444.
    This rule is as applicable to mortgages as to contracts, and to constitute this relation of mortgagor and mortgagee their remedies should be in all respects mutual. The one should have a right to redeem, and the other to forclose, or sue for his money. For where an estate has been absolutely conveyed, there could be no no equity in leaving it to be held at' the risk of one party; or allowing the other, whenever he thought proper, to treat it as a mortgage, and come for redemption, when the other party had no remedy for his money, which he could not sue for without a covenant to repay. Hicks Sf Hicks vs. JVorris, 5 Gill & Johnson, 75: 2 Ball & B. 274.
    4. It is objected that the evidence introduced in this case cannot be considered, and was improperly admitted upon the ■ trial of the cause. It seems to me quite clear that the evidence ought to have been admitted to show the nature of the transaction, for it .was one entire act; and what it was intended by the parties to be understood. The inquiry in this class of cases always is, whether .the transaction amounts to a mortgage or not; and whether the contract is a mere security for money due or to be repaid; or whether the sale was absolute, with a condition to repurchase. It matters not what the form of the conveyance is, it may be s.hpwn what the real object of the parties was. Bolto.n vsl Jbcryi 2 Root’s'Rep.: 4 Hay. 93: 7 Cranch’s R. 218: Hicks vs. Hicks §• Norris, 5 Gill & John.'75; .4 Kent’s Com. 142.
    The evidence is not sought to be introduced to culd to the agreement, but to exp'ain an agreement which may be considered somewhat ambiguous at least. Soscoe on Ev. 9: S Stark. Ev. 1048, 1050.
    6. Cantrell might well refuse to convey to Gleaves. He was bound by his covenant only to recovery to Hickman. If there had been a defect of title to the negro, the very sale itself would have been a warranty of title, as in all cases of personal property this is the rule. He wonld, therefore, have been assuming a more responsible situation, in conveying to Gleaves than to' Hickman. Gleaves conld have sued for a defect of title, upon the warranty implied by law; Hickman could not as be would be estopped by 'liis deed to Cantrell, and could only get what be bad sold.
    6. The tender itself was not good. No money was produced, nor its production waived, neither was the tender made by the right person. 6 Wendell Hep. 22: 11 Eng. Cóm. L. B. 449.
   Turley, J.

delivered the opinion of the court.

Two questions arise for consideration in this case.

1. Is the transaction between complainant and defendant a morgage or a purchase, with liberty to repurchase.

By the common law, all estates which were created defea-sible by the payment of money on a particular day by the vendors, were held to be estates upon condition, and if the day appointed for the payment were suffered to elapse without its being made, the estate became absolute, because in estimation of the law, the estate was the thing contracted for, and the money collateral thereto. This principal was necessarily applied, as well .to cases where the estate was merely designed as security for a debt duo, as when the intention was to sell upon a condition of repurchase. This doctrine was so rigorous, and in its operation so frequently productive of the most intolerable injustice, that the courts of chancery, at an early period, experienced the necessity of adopting a different rule of construction, and therefore said, that in all cases when a pre-existing debt, or a loan made at the time of the purchase was the consideration of the deed of convey-anee, they would consider the debt as the thing contracted for, and the estate as collateral thereto; by which, the right to-redeem, although the day of payment had elapsed, was secured to the vendor. Rut this rule of construction was only applied to cases where the estate was really intended as'security for the payment of money, and not to those, when there was no precedent debt and no loan of money, but an honest design to purchase the property with a condition of repurchase: they were left as at common law. Was this bill of sale intended as a security for the payment of a debt due, or for money lent at the time of its execution? This question must be answered either by the bill of sale or by the proof. The bill of sale contains no recital of the existence of a precedent debt or a loan of money as the consideration, but four hundred and fifty dollars in hand paid, the receipt of which is acknowledged fit is in the usual form, and passes the absolute interest in the slave, and is signed by the complainant. The condition thereto provides, that if the complainant shall pay to the defendant the said sum of four hundred and. fifty dollars mentioned in the bill of sale, by the 1st day of January, 1827, it shall be void. This condition is signed by the defendant, thereby clearly intimating that it was his contra: land not that of the complainant. It is not pretended, that in the bill of sale signed by the complainant there is any evidence of a pre-existing debt or loan at the time of the sale. Is it to be found in the condition signed by the defendants? Chancellor Kent says in the 4th volume of Commentaries, page 142, “in equity, the character cf the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument showing that the parties intended the conveyance should operate as security for the re-payment of the money, will make it such, and give to the mortgagor a right of redemption.” What is there in this condition that shows that the parties so intended it? Is it the word pay? Surely not; for this is just as applicable to a condition of a repurchase, as to a mortgage. There is no acknowledgment of an existing debt or Joan; nothing from which either of them can be inferred, and no covenant for repayment of the purchase money; and although a want of a covenant to repay the purchase money is not com-1 . . , , J evidence that a conditional sale was intended, yet chief ^ v justice Marshall, in the case of Conway’s Executor vs. Alexander, 7th Cranch, 237, “says, “it is a circumstance of no inconsiderable importance But it is contended that the word “pay,” amounts to a covenant, and that an action would lie upon it. This argument admits the necessity of the existence of a debt to constitute this transaction a mortgage, and that the mortgagee should have a remedy against the mortgagor; therefore, the existence of the debt is certainly not to be collected from the bill of sale or the condition; and the law is expressly laid down in 4th Kent’s Com. 445, to be, that a covenant for the payment of the money inserted in the mortgage must be express, for that no action will lie on the proviso or condition of the mortgage; and such is the opinion of the supreme court of the United States in the case before referred to, of Conway’s Executors vs. Alexander. But it is further contended, that is not necessary in order to make this a mortgage, that there should be either in the bill of sale or the condition a covenant of repayment; for which, the case of Lawley vs. Hooper, 3 Atkins, 278, is cited. This is unquestionably true, for it has long since been decided that a deed, absolute upon its face may be declared to be a mortgage upon parol proof, showing that such was the intention of the parties. It certainly is not contended, that this decision supports the position that a conveyance may be declared to be a mortgage, when there is no remedy for the debt against the debtor, that would indeed be to contradict all the authorities on this point. The case from Atkins, then, only proves that though it cannot be gathered from the face of the instrument that it is a mortgage, yet parol proof may be heard to show that it was intended as such.

From these considerations it is seen, that to make a deed of conveyance a mortgage upon its face, it must show that the consideration which supports it, was either a debt due or money lent at the time of its execution, or that it must contain an express covenant for the repayment thereof; this bill of sale and its condition shows neither of these things, therefore it is not a mortgage upon its face. Then the next inquify is, does the parol proof show it to have been a conveyance made to secure the payment of money? Most certainly not, hut directly the contrary. The testimony of James P. Clark shows, that there was no debt due, nó loan of money; that the defendant expressly refused to have any condition for a repurchase if this was to make it a mortgage; that the complainant was informed of this objection; that the agreement was, that there should be a condition of repurchase, and that he was instructed so to prepare the contract by the parlies, and that he did so. There is no other testimony on this point, and of course there is no parol proof by which the sale can be converted into a mortgage. We are therefore of opinion, that this was a sale upon condition of repurchase.

The court is aware that sales of this character are watched with a jealous eye, because they may be used as a means of avoiding the statute of usury, and recognize the doctrine of Lord Chancellor Hardwicke, as established in the case of Lawley vs. Hooper, that whenever there is the least tincture of fraud or oppression these bargains will be relieved against. But in this case every thing appears fair and honest: an adequate price was paid for the negro, and no undue advantages sought or claimed by the vendee.

The second point in this case is, does the proof show that the complainant complied with the condition of repurchase, by the payment or tender 0/ payment, of the purchase money within the time prescribed? It is admitted in the answer, and is proved by a witness, that before the time of condition had expired, complainant procured Gleaves to go with him to the defendant, for the purpose of repaying the .money, and that they offered to do so, if he would make a bill of sale of the negroes» to Gleaves, which he refused to do, but expressed a willingness to receive his money, and reconvey to complainant, which was not acceeded to; so there was.no money paid, neither the proof or admission of defendant shows that there was an actual tender even upon condition of a conveyance to Gleaves. We are of opinion, that the defendant was not bound by the condition of the bill of sale to reconvey to any person except the complainant, and that he might well refuse to convey to another, as in every sale of a chattel, there is an implied warranty of title, upon which defendant might possibly have been made liable. We are further of opinion, that in cases of sales upon condition of repurchase, the tender must be made with all the formalities required by law; at the right time, the right place, and to the right person, for inasmuch as the money is collateral to the property, and the' vendee hath no promise either express or implied for its payment, if he refuse to receive it upon a tender properly made, the condition is complied with and he has no remedy for its recovery. See Littleton, § 335, and Har. and Coke’s comments thereon. For these reasons we are of opinion,, that the decree of the circuit court be affirmed.

Decree affirmed.  