
    Thompson v. Chumney.
    We have held that the indorsement of the words “given” or “refused,” or the annexing of them to the charge, will sufficiently show the disposition of it, and subject it to revision for error. It would, perhaps, be the better practice if these were signed by the judge, as this seems to be contemplated by the statute, and in fact is required, where a charge or a portion thereof is refused and a portion given.
    An absolute bill of sale and a bond to reconvey upon payment of a certain sum at a given day, otherwise the bond to be void, in the absence of some proof of a loan of money or forbearance, constitute a conditional sale. (Note 79.)
    Appeal from Sail Augustine. Suit by Thompson against Chumney to recover a slave named Jack. There was no question on the pleadings. The statement of facts was as follows: Be it remembered that on the trial of this ease the plaintiff offered in evidence the following bill of sale after proving its execution :
    Received of Thomas Clmmney four hundred dollars, in full payment of the purchase-money of a certain negro slave named Jack, aged about sixteen or seventeen years, of yellow complexion, which I warrant to be sound of body and mind and a slave for life, and do hereby warrant and forever defend the right and title of said slave Jack, above described, against myself, my heirs, executors, administrators, and assigns, and against all'and every person whomsoever claiming or to claim the said slave lawfully; and I do further warrant that the said Jack will not abscond from the said Chumney, and should lie become sick or die before the second day of June next, then and in that ease I agree to pay the said .Chumney such damages as lie shall sustain by reason thereof, and not thereafter. In testimony whereof I have hereunto set my hand and seal this second day of February, A. D. 1848.
    Witness— B- J- Ti-iompson. [seal.]
    J. B. Johnson,
    F. Y. McKee.
    The plaintiff then also read to the jury the following obligation in writing: State op Texas, \ Know all men by these presents that I, Thomas County of San Augustine. J Chumney, am held and firmly bound unto Bunvell J. Thompson in the sum of eight hundred dollars, for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators firmly by these presents. Sealed with my seal, and dated this the second day of J une, A. D. 184S.
    The condition of the above bond is such, that whereas Burwell J. Thompson did, on the second day of February, A. D. 1848, sell and deliver me, the said Chumney, for the sum of four hundred dollars, a certain negro slave named Jack, aged about sixteen or seventeen years, of yellow complexion, and slave for life : now, if the said Thompson shall, on or before the second day of September next, pay to me or my order the said sum of four hundred dollars iu American gold in ten-dollar pieces, then and in that case I bind myself to reconvey the said slave Jack to said Thompson, his heirs or assigns; but in the event the said Thompson fails to pay up said sum of money punctually at said second day of September next, then the above obligation to be null and void.
    Thomas x Chumney. [seal.]
    mark.
    Witness: J. B. Johnson.
    James B. Johnson, called by plaintiff, testified that he was called upon by the parties to this suit to draw up the contract between them in regard to the slave sued for, and after hearing from said parties what they wanted him to write he drew up the said bill of sale and a bond, in substance the same as the one offered in evidenee, except that by the said bond first drawn by him the said defendant was bound to reconvey said slave to said plaintiff, provided the said plain! iff paid to said defendant the said sum of four hundred dollars named as the price of said slave in said bill of sale, oil or before the second of June, 3848; that he, witness, in drawing up the said bill of sale and said bond to re-convev, followed the instructions of said parties and expressed therein their1 intentions as nearly as ho could; that he understood from said parties that said plaintiff received from said defendant four hundred dollars; that he did not recollect that he heard the parties say anything about interest, or the services of the negro going to pay for the use of the money, or whether or not the said money was loaned, nor did either of the parties say anything about the con-' veyance of said slave being a mortgage, but the said defendant, who can neither read nor write, as he, witness, lias always understood, said to him in the presence of plaintiff, when he was about to commence drawing up said bill of sale and bond, '•'Make it strong, and make it so that the negro will be mine if Thompson does not pay me the four hundred dollars at the time specified,” or to that effect; and that the plaintiff then said. ‘’Yes, make it strong.” Said witness further said that the plaintiff has been for several j'ears embarrassed and pressed for money; that he has known him several times to borrow money; that plaintiff is a man who has a pretty large estate in slaves, &c.; that defendant is a man in quite moderate circumstances, but entirely free from debt; that he is a prudent, economical, and industrious man, and generally has some money, but that lie never knew him to loan money for interest or in any other way; that money was scarce about the time he drew said bill of sale, &e.; that said slave was worth five or six hundred dollars at the time of said sale ; that on the day said money was by said agreement to have been paid by said plaintiff, and said slave reconveyed by said defendant., the parties came to him again and, after some conversation, the said defendant, voluntarily offered to execute and did execute the said bond, which was read in evidence, to said plaintiff-, to re-convoy said slave as therein provided; that he, said witness, heard nothing-said between said parties about a loan, interest, or mortgage; that the said slave was, as witness understood, at the date of bill of sale, delivered into the possession of defendant, who has ever since kept him — witness did not see the slave delivered — that about, the. time when the bond of Chumney expired Chum-ney called upon Johnson (the witness) and demanded it to be given up to him, which Johnson refused to do, saying that he could not do so without the consent of Thompson; that the parties afterwards came to him, and a new bond was given and the old one was canceled.
    The plaintiff then proved by Burwell J. Lewis that he, witness, as the agent of said plaintiff, in the early part of the month of April, 1849, tendered to said defendant, &c.
    Other witnesses testified that the slave was delivered to Chumney at the date of the bill of sale; that Thompson was a man of large estate, much * embarrassed about the time of this transaction; that he borrowed money when he could, mortgaging negroes therefor; that he sometimes sold a negro to raise money; that defendant was a prudent, industrious man, in moderate circumstances, generally had money, and all the witnesses testified they never knew him to loan any. One witness testified that a few days previous to the trial, in a conversation occasioned by the reading' of the newspaper publication of the decision in the case of Stampea v. Johnson, Thompson said to Chumney, “Tom, you said you would take no advantage of me.” To which Chumney replied, “I say so yet.”
    There were copied into the transcript and pm-ported to be marked filed several instructions asked by the plaintiff to be given to the jury, but it did not appear what disposition was made of them.
    Verdict and judgment for the defendant. Motion for new trial overruled.
    
      J. M. Ardrey, for appellant.
    
      Henderson and Jones, for appellee.
   Hemphill, Cii. J.

The question in this case is whether tiie transaction between the parties was a conditional sale or mortgage. The bill of sale on its face is absolute. But a bond was given by the purchaser to reconvey on the payment of the purchase-money. Tiie instruments, taken together, constitute a conditional bill of sale, but tiie appellant contends that it was intended by the parties as a mortgage and as a security for tiie payment of money loaned. Parol evidence was introduced to show the real purpose and intention of the parties in tiie transaction. Tiie jury found for the defendant, and a motion for a new trial, on the ground that tiie verdict was contrary to tiie charge of the judge and to law and evidence, was overruled. It is assigned for error—

1st. That the court refused the charges or instructions asked by the plaintiff’s counsel to be given by tiie court to the jury.

2d. That the court erred in refusing to grant "a new trial to the plaintiff for the causes set out in the motion.

The first ground of error has alone been argued by the counsel for the appellant, and the points raised by the instructions asked have been, argued with a commendable degree of zeal and ability. But tiie difficulty to be encountered by the appellant, and it is insuperable, is, that the record furnishes positively no evidence that tiie instructions asked were refused, or in fact what or whether any disposition was made of them by tiie court.

There are five charges which the appellant in his brief contends that tiie judge erroneously refused to give, but none of these charges are marked in writing as being refused. We have held that the indorsement of tin* words “given ” or “refused,” or tiie annexing of them to the charge, will sufficiently show the disposition of the instruction, and subject the charge to revision for error. (Crook & Adriance v. McGrael, 3 Tex. R., 491.) It would perhaps be the betfe^practice if these were signed by tiie judge, as this seems to be contemplated by art. 754, Dig., and in fact is required where a charge or a portion thereof is refused and a portion given. But let this be as it may. there is no-evidence upon tiie record of either assent or refusal, or of any disposition of the charges by the court, and they must consequently be stricken from the record altogether.

Tiie question of tiie error in relation to the refusal of these charges being thus disposed of, the only remaining question is whether the verdict was contrary to tiie evidence.

The evidence, i£ it did not preponderate in favor of the defendant, was at least conflicting. It is the province of the jury iu cases of conflict to decide upon the weight of tlie evidence, and tlieir finding is conclusive.

There being no error iu the judgment, ordered that the same be affirmed.

Judgment affirmed.

WhEeler, J.,

dissenting. Tlie only difference between the present case and the common case of a mortgage is, that the deed and defeasance, instead of being' in one, are in separate instruments, and this is a difference in form only. The bond given in evidence is but a substitute for one of like import executed at tlie time of tlie conveyance, and is to be treated as the same in effect. Having been executed at the same time, being constituent parts of the execution of the same agreement, the deed and defeasance are regarded in law as one and the same instrument, and that instrument possesses every ingredient requisite to constitute it a mortgage.

“A formal conveyance,” (said Gibson, Chief Justice, in Kunkle v. Wolfersberger, 6 Watts’ R., 130,) “may certainly be shown to be a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means. In the one case tlie proof raises an equity consistent with the writing, and in tlie other would contradict it, which seems to be tlie principle of Woods v. Calwell, 3 Watts, 188.”

The case of Woods v. Calwell, here referred to, is so precisely in point .to the present as to render proper an especial notice. The principle decided is thus extracted in the synopsis of the case by the reporter: “L executed and delivered to W a deed iu fee-simple for a lot of ground, in consideration of a certain sum of money, and at the same time W executed and delivered to L a covenant that he would reconvey tlie same to him upon the payment of the same amount of money within one year: Held, That these papers constitute a mortgage, and are to be so construed, although it appear by parol that the parties did not so intend it.”

The very learned judge who delivered the opinion of the court that decided this case, said : “The deed of conveyance and the bond, as was very properly stated by tlie judge in the court below, are to be considered as only one instrument, for they are constituent parts of the execution of the same agreement, executed at the same time, as appears by a declaration to this effect contained in the bond.” “If the bond, or deed of defeasance, as it may be called, instead of having been put into the form of a distinct and separate instrument from the deod'bf conveyance, had been introduced into tlie latter in tlie form of a clause of defeasance, as is usually done iu writing mortgages, I apprehend that no one would have hesitated a moment to pronounce it a mortgage. Indeed, it seems lo me, from the whole current of authorities on this subject, it could not have been considered otherwise, either in law or equity. Tlie conveyance and liond, then, being deemed hut constituent parts of one and the same instrument, must be regarded precisely in the same point of view and of tlie same, (-fleet as if they liad been joined together iu the same writing and Had formed but one deed.'” (9 Watts, 196, 177.)

These references will suffice to show the grounds of my dissent from the judgment of tlie court. My opinion as to what constitutes a mortgage and as to tlie law applicable to tins subject has been so fully expressed on former occasions iu this court, and especially iu the case of Stevens v. Sherrod, decided at our last session at Tyler, (6 Tex. R., 294,) that I deem a further discussion of the subject in this place unnecessary.

From the parol testimony in the case I cannot entertain a doubt that tlie real contract iu this case, though a sale in form, was in fact a loan of money, with the understanding that the services of the negro should be received iu satisfaction of interest on the money loaned — a character of mortgage very common in this country — and (hat two instruments instead of one were resorted to as a contrivance to disguise tlie real character of the traus-action. And I take it to ke an elementary aiid unquestionable principle that in the language of the Supreme Court of Pennsylvania, “A sale in form but which in fact and substance may be avoided by the payment of money within a given time is and will be held to be a mortgage,” and that “no manage* ment or contrivance of the lender, no form of expression in the instruments— not even dating the defeasance several days after the deed, not even the lender uniformly stating that he will not have a mortgage — will avail” to change the character of the instrument, (6 Watts’ R., 407;) that, as said by Chief Justice •43-ibson, in a case before cited, (6 Watts’ R., 131,) “It is too late to say that what was intended as a loan may become a conditional sale by the accidental form of the transaction,” and indeed, that “these are elementary matters not open to discussion.”

Note 79. — Fowler v. Sfconum, 11 T., 478.  