
    Webb and Foster vs. Patterson.
    1, Where the substance of a contract is, to secure one against liability, it will bo construed a mortgage, without regard to its form.
    2. The mortgagor must pay the necessary expenses of recovering a runaway slave, on a bill filed by him to redeem. The law is the same, whore vendor, at the time of sale, with liberty tore-purchase, conceals the fact from the vendee, that tho slave is an habitual run away.
    This bill was filed by Webb and Foster against Patterson, in the Chancery Court at Murfreesborough. At the August term, 1844, the following decree was entered:—
    
      “Be it remembered, that this cause came on to be hfeard before Chancellor Ridley, on the bills, answers, replications and proof taken in the cause. Whereupon, it appeared to the court, that on the 31 st March, 1843, the complainant, Gwynn Foster, with the consent of said Webb, executed to the defendant, Patterson, a bill of sale for the boy Tom, which he previously mortgaged to said Webb, described in the pleadings, to induce said Patterson to become his surety in two replevy bonds in cases of attachments levied on said slave as the property of said Foster, and to indemnify said Patterson from loss by reason of such liability. And that said Patterson at the same time executed .an instrument, by which he bound himself to allow said Foster to redeem said slave within six months from that date, upon his paying said Patterson, in money or his paper, three hundred dollars, the amount of a note said Patterson executed that day for said slave — and on which note there was endorsed a condition, that said Patterson was not to pay so much of said note as would indemnify him against liability as surety for said Foster in said replevy bonds. And the said Patterson having been released from his liability as surety for said Foster in said attachment bonds, and the said Foster having tendered said Patterson said note so executed, and praying to be permitted to redeem said slave. The court is of opinion; and doth so'decree, that said slave be surrendered up to said Foster and said Webb, and that the note executed by Patterson, as well as the bill of sale and defeasance, be surrendered up and cancelled-.
    ‘‘But it further appeared to the court, that the said slave Tom was of bad character and habits, and addicted to running away; that he was uncontrollable and difficult to be retained in servitude; that said Foster purchased him in irons, well knew these traits and qualities, and did not communicate them to the said Patterson,.but suppressed them, and thereby practiced a fraud upon defendant. And it further appeared, that a day or two after said Patterson took possession of said slave he ran away from the service of said Patterson; that said Patterson advertised, offered a reward, and used all due diligence to recapture him — but that he failed to do so until he had lain in jail for a considerable length of time, and that said Patterson necessarily incurred a large amount of expenses in the payment of jail fees, traveling expenses, advertising and otherwise in recapturing said slave and keeping, him in jail afterwards. The court is of opinion, and doth decree, that said Foster should refund to said Patterson the amount of expenses thus incurred before he is permitted to redeem said slave. It further appeared to the court, that after said slave was recaptured, he was detained in jail to prevent his running away. The court is of opinion, and doth decree, that said Foster is not entitled to hire for slave, either during the time he was a runaway or after his recapture while in jail. And it further appeared to the court, by the agreement and ad missions of the solicitors on both sides, that after said slave was recaptured, and while he was confined in jail for safe keeping, said slave was surrendered up to said Foster and Webb, on their agreement to pay and indemnify said Patterson for whatever expenses and costs he incurred in re-capturing said slave and keeping him in jail, if .the court should so'order. And they having entered into security to abide by, perform and pay whatever decree might be rendered in favor of said Patterson. Whereupon, the court is of opinion, and doth decree, that they pay the aforesaid fees and expenses incurred as aforesaid. But in as much as it doth not appear how much they are, it ordered, that this cause be referred to the Clerk and Master to report what is the amount of said jail fees while the negro was under arrest before Patterson regained him, and while he was confined afterwards until delivered up to Patterson. Also,' the expenses of said Patterson in advertising, in traveling after said slave, and all his other expenses necessarily incurred in re-capturing and confining said slave; that he hear any new proof that may be offered by the parties touching the matter referred to, as well as look to the proof already in the records; that he report to the present term of this court, if practicable, and if not, to the next term. Until the coming in of which report all questions not herein or heretofore adjudged are deferred.”
    
      Ready, for complainants.
    
      Burton, for defendant.
   GREEN, J.

delivered the opinion of the court.

This is a bill to redeem a negro man slave, that Webb & Foster sold to the defendant Patterson, by bill of sale absolute on its face. At the same time, Patterson executed a defeasance in the following words:

“■Whereas, Benjamin Webb, Trustee, by George Foster, has this day sold me a man slave, named Tom, for the sum of three hundred dollars, and executed to me a bill of sale for said slave, and the said sale is made upon this condition, to wit, that I am to allow the said Webb, at any time within six months from this date, to redeem said slave upon his paying me the aforesaid sum of three hundred dollars, either in money or in my- paper, witness my hand and seal, March 31st, 1843.
John Patterson, seal.”

On the same day, as consideration for said slaye, Patterson executed his bill single for three hundred dollars, payable to Webb, one day after date, with a memorandum, stating the following condition:

“This note is subject to the following condition, to wit, I am bound as the security for George Foster, for the replevy of a negro boy named Tom, which has been levied on by virtue of an attachment in favor of Alfred Forgitt against said Foster, and l am not to pay so much of this note as will cover and indemnify me against said liability, until I am released therefrom. Said attachment is returnable to the Circuit Court of Rutherford county. John Patteeson.”

The defendant Patterson was released from any liability on account of his suretyship for the replevy of the slave, in the attachment case, and the bill alleges a tender of the three hundred dollars, in an offer to surrender Patterson’s note for that sum within six months; it is also stated, that said sum, is much below the value of the slave.

During the six months after the contract, the negro ran away, and was not in the power of Patterson to be delivered, but he has since been reclaimed and delivered. The slave while runaway, had got to Kentucky, where he had been taken up and kept in jail as a runaway slave, for nearly a year;, and the expenses for keeping him, amounting to a considerable sum.

The only question now’ is, whether Webb & Foster are bound to account for the expenses thus paid by Patterson. The complainants insist, that the nature of the contract is a sale absolute'; with liberty to repurchase within six months, and that while these expenses were incurred, the negro was the absolute property of the defendant who must, therefore, be liable for the expenses incurred on account of his own slave.

,The defendant insists, that the contract was a mortgage; that the slave remained the property of the complainants, and that in this view of the case, he ought to be allowed for the expenses incurred in reclaiming the slave. He also insists that the complainants are liable for these expenses, because they knew the negro to be addicted to running away, the said Foster having bought him in irons, as a runaw'ay slave in Alabama; all which facts were concealed from the defendant, who was thereby de-ftaudedin said contract. We think it is manifest, from the instruments of writing executed by the parties, that the substance of the contract in this case, was a security against the liability the defendant had incurred as surety for Foster in the replevy bond.

In the first place, the sum agreed to be given for the negro, was according to the statement of the bill, much below his real value. The defendant executed his note for three hundred dollars only. A negro man slave, is usually worth double that sum; and this inadequacy of price, is a strong circumstance to show that the contract was only intended as a security to indemnify Patterson. The language of the defeasance, and the recitals of the memorandum attached to Patterson’s note for the three hundred dollars, all show that the whole arrangement was intended only as an indemnity to Patterson.

Now, if the substance of the contract was, a security for the liability Patterson had incurred for Foster, it will be construed a mortgage, whatever may be its form. And that this was the case, we have no doubt.

But upon the other ground assumed by the defendant, we think the complainants ought to pay these expenses. The evidence shows that the negro was an habitual runaway, of bad character, and hard to manage; and that Foster bought him when he was in irons confined as a runaway, and well knew his character. These facts were concealed from Patterson and he was induced to take as his security a slave that the complainants •knew, would probably runaway from him, and who actually did runaway the day after he got him.

This was a fraud upon Patterson, and although for the suppression of truth in relation to the moral character of a slave, a court of equity would not rescind a contract; yet in a case like this, where the parties are to account with each other, it is a legitimate ground for controlling their liabilities. Upon both grounds therefore, we think the complainants must account.

Affirm the decree.  