
    Allen Barnes vs. Gardner Holcomb.
    Where, cotemporaneously with the execution of a bill of sale of negroes, the vendee executes to the vendor an- instrument, which the latter contends to be in the nature of a mortgage, and the former of a defeasible sale of the same negroes, the inclination of the court will be to hold the transaction a mortgage, if it can be consistently done.
    Where a bill of sale absolute on its face of slaves was executed, the consideration of which was a balance due upon settlement by the vendor to the vendee, and at the same time the vendee executed to the vendor an instrument, in which he stipulated that in two years the vendor might have the privilege of redeeming the slaves, by paying the consideration named in the bill of sale; it was held, that the two instruments were to be considered as one transaction ; and that, in view of the facts of the antecedent indebtedness for which the bill of sale was given, that the sum to be paid in defea-sance of the bill of sale was the same in amount with the consideration named therein, and that two yeaTS was allowed for the redemption, and that the word redeem was used in the defeasance, and not re-purchase; an absolute purchase could hardly have been contemplated by the vendee.
    Therefore, where the vendor, before the expiration of the two years, filed his bill for redemption, and an account of hire and indebtedness, &c., and the vendee answered admitting the permission to redeem the slaves ; and various witnesses testified as to the agreement to redeem, and the chancellor accordingly treated both instruments as a mortgage, and ordered a decree accordingly ; it was held, that the decree should not be disturbed.
    On appeal from the southern' vice-chancery court, at Monticello; Hon. James M. Smiley, vice-chancellor.
    On the 14th of August, 1844, Gardner Holcomb filed his bill, in which he alleges that he purchased of William P. Lenoir and Allen Barnes, in March, 1838, a stock of goods for $6110, at twelve months’ credit, for which he gave his note. Previous to and after maturity of this note, he made large payments to them, so that on the 15th day of August, 1839, there remained due thereon $3571-73.
    
    On that day, upon application of defendants, he gave a new note for $3718-92, being $147-19 more than was actually due, and being for usurious interest. Previous to the 7th June, 1841, he had made various payments, amounting to $3627-20, on which day he and Lenoir & Barnes had another settlement, when, to his amazement, they claimed, as due to them, a balance of $1900. Not being an expert accountant, he confided the making of said settlement to one James M. Carr, in whose skill, integrity, and impartiality he then had confidence, which was, as he has since ascertained, misplaced.
    He then knew and contended there was great error in the statements producing this result; but as he could not then demonstrate in what it consisted, on request of Barnes he executed his note for $1900. That the amount then actually due from him to defendants was about $400, as shown by an account exhibited with the bill.
    That shortly after, defendants commenced a civil suit on this note for $1900, to which complainant pleaded payment and usury, which greatly exasperated defendants; who thereupon, though complainant was a citizen of the same county with them, sued out an attachment against him, which they caused to be levied on every thing he had.
    The bill proceeds to detail a series of acts, on the part of the defendants, alleged to have been oppressive in their character, and to have resulted in breaking down the spirit of the complainant, and subduing him into a willingness to do whatever Barnes, the active partner, demanded.
    Accordingly he made to Lenoir & Barnes, about 30th Dec. 1842, a bill of sale for four negroes, three men and one woman, for the expressed consideration of $1500, of which the following is a copy, being exhibit F to the bill.
    
      Exhibit F to bill.
    
      “ The State of Mississippi, Marion County.
    
    
      “ Know all men by these presents, that I, Gardner Holcomb, of the state of Mississippi and county of Marion, farmer, for and in consideration of the sum of fifteen hundred dollars to me in hand paid William T. Lenoir, sen., and Allen Barnes, merchants, partners, negotiating in trade under the firm and style of Lenoir & Barnes, of the state and county aforesaid, before the sealing and delivery of these presents, -the receipt whereof is hereby acknowledged, have bargained, sold and delivered, and by these presents do bargain, sell and deliver unto the said William T. Lenoir, sen. and Allen Barnes, merchants, partners, negotiating in trade under the name, firm and style of Lenoir & Barnes as aforesaid, for certain negroes, to . wit, one negro man by the name of Kit for ,the sum of five hundred and fifty dollars, aged about thirty-eight or forty years, one negro man by the name of Bill for the sum of five hundred and fifty dollars, aged about thirty-eight or forty years, one negro woman by the name of Margaret, for the sum of three hundred dollars, aged thirty-eight or forty years, also one negro man by the name of Step for the sum of one hundred dollars, aged about sixty years, amounting in all to the sum of fifteen hundred dollars, which said slaves I warrant to be sensible, sound in body and mind, and slaves for life, to have and to hold the said slaves above described unto the said William T. Lenoir, sen. and Allen Barnes, merchants and partners, negotiating in trade under the name, firm and style of Lenoir & Barnes, their executors, administrators and assigns forever to their own proper use, benefit and behoof forever; and I, the said Gardner Holcomb, for myself and my heirs, executors and administrators, will warrant and forever defend the said bargained and sold slaves before described unto the said William T. Lenoir, sen. and Allen Barnes, late merchants, partners, negotiating in trade under the name, firm and style of Lenoir & Barnes, their heirs, executors, administrators and assigns, from and against the claim or claims of all and every person whomsoever.
    
      “In witness whereof I have hereunto set my hand and affixed my seal this 30th day of December, eighteen hundred and forty-two. GaRdneu Holcomb. [Seal.]
    Signed and sealed in the presence of
    Jas. M. Carr, ) püed A 16 1844t Yerby, D. C ” James Hardy Pope. )
    At the same time another writing was executed, marked exhibit G to bill as follows, viz:
    Exhibit G to bill.
    
      “ The State of Mississippi, Marion County.
    
    “Know all men by these presents, that we, William T. Lenoir, sen. and Allen Barnes, of the county and state aforesaid, late merchants and partners, negotiating in trade under the name, firm and style of Lenoir & Barnes, have this day purchased of the said Gardner Holcomb four certain negroes, to wit, Kit at the sum of five hundred and fifty dollars, Bill at the sum of five hundred and fifty dollars, Margaret at the sum of three hundred dollars, Step at the sum of one hundred dollars, making in all the sum of fifteen hundred dollars in payment of a certain debt due from the said Gardner Holcomb to the said Lenoir & Barnes, upon which an attachment has been issued, and said attachment is released tipon the condition that the said Gardner Holcomb is not at any time after the date of this instrument of writing to institute any suit against the said Lenoir & Barnes, or either of them, or any of their heirs, executors, administrators or assigns for any damages which he may have sustained by any levy made by the sheriff of Marion county on him the said Holcomb, or any of his property by virtue of said attachment ; and it is expressly understood that no exception is to be taken to the bill of sale this day given by the said Gardner Holcomb to the said Lenoir & Barnes for four certain negroes above described; and it is also understood that this settlement is to be considered as a compromise between the parties, and the said Holcomb is to be allowed the privilege of redeeming the above slaves above described on the following conditions, that is to' say, provided he the said Holcomb does pay to the said Lenoir & Barnes the sum of five hundred dollars by the tenth day of April, eighteen hundred and forty-three, we promise to deliver him Step at the sum of one hundred dollars first, secondly by his paying to the said Lenoir & Barnes the sum of one thousand dollars by the first day of October, eighteen hundred and forty-four, we promise to deliver him, the said Holcomb, the following negroes, to wit, Bill at the sum of five hundred and fifty dollars, Margaret at the sum of three hundred dollars, and Kit at the sum of five hundred and fifty dollars; and in case the amount of money specified is not paid the said Lenoir & Barnes at the time specified in this instrument, they are not to be considered bound to refund the negroes above described to the said Holcomb, but are to hold the negroes above described as the absolute property of them the said Lenoir & Barnes forever. As it appears that a mistake has been made in the last settlement between the said Holcomb and the said Lenoir & Barnes of the sum of ninety-four dollars, it is agreed that said sum of ninety-four dollars be equally divided, and that the said Holcomb pay to the said Lenoir & Barnes one half of said amount over, and the amount included in a certain promissory note made by the said Holcomb, and payable to the said Lenoir & Barnes. It is also expressly understood and agreed upon by the parties, that no exception is to be taken to this instrument of writing, but that said suit is to be compromised as before stated, and that no suit is ever to be brought by the said Holcomb, his heirs, executors, administrators and assigns against the said Lenoir & Barnes in any way or manner, shape or form respecting this case or suit by him, the said Holcomb, his heirs, executors and administrators.
    “ In testimony whereof we have hereunto set our hand and affixed our seal this 30th day of December, 1842.
    GaedneR Holcomb. [Seal.] Lenoir & Barn-es. [Seal.]
    Signed and acknowledged in presence of
    At.RTANDRT? frT?A 7TA TW.
    
      
    
    
      The bill proceeds to detail further the complainant’s history of the case, and insists that he owed Lenoir & Barnes nothing; praying that an account might be taken of their dealings and of the hire of the slaves, &c., the bill of sale cancelled, and the negroes restored.
    Barnes answered the bill; but it is not necessary to set out his answer farther than to say, that he denied the right of Holcomb to redeem, insisting that the sale was a conditional one, and that the transaction did not constitute a mortgage. He denied, also, many of the allegations of the bill. It is not necessary to notice his answer farther than it is noticed in the opinion of the court.
    The testimony of various witnesses was taken, tending to establish the allegations of the bill.
    On the hearing, the vice-chancellor adjudged the conveyance from Holcomb to Lenoir & Barnes, and the writing from them to him, a mortgage for the security of the debt.
    He ordered an account, in relation to all the transactions between the parties, which was taken before the master commissioner, Jacob S. Foute, Esq., whose report allows hire for the negroes, and shows a balance due to complainant, on the 1st of January, 1847, of $353-91.
    The chancellor thereupon decreed that the mortgage should be released, the negroes be delivered up to Holcomb, and that the defendants pay to Holcomb the amount reported due, and the costs of the suit; and from this decree the defendants appealed.
    
      Swift and Walsh, for appellant,
    Made an elaborate argument, and cited 4 Kent, 144; Slee v. Manhattan Company, 1 Paige, C. R. 56; Goodman v. Grierson, 2 B. & B. 274; Conway v. Alexander, 7 Cranch, 237; Robinson v. Cropsey, 2 Edwards, Y. C. Rep. 138; Flagg v. Mann, 14 Pick. 467; Holmes v. Grant, 8 Paige, 243; 2 Sumn. R. 534; Davis v. Thomas, 1 Russ. & Myl. 506; Fleming v. Sitton, 1 Dev. & Bat. Eq. 621; Robertson v. Campbell, 2 Call, 421; King v. Newman, 2 Munf. 40; Prince v. Bearden, 1 A. K. Marsh. 170; Oldham v. Hally, 2 J. J. Marsh. 114; Thompson v. Dav~ enport, 1 Wash. 125; Zane v. Zane, 6 Munf. 406; Mill v. Lee, 6 Monroe, 97; Moore v. Fitzwater, 2 Rand. 442; Taylor v. Patrick, 1 Bibb, 168; Fishery May, 2 lb. 448; Kennedy v. Davis, 2 lb. 343; Union Bank v. Geary, 5 Peters, 114; 2 Paige, 478 ; Butler v. Triplett, 1 Dana, 154; Walker v. Tipton, 3 lb. 5; Payne v. Bennett, 2 Watts, 427; Bennett v. Payne, 5 lb. 259; O’Keson v. Barclay, 2 Pennsyl. 531; Hoge v. Hoge, 1 Watts, 216, 217 ; Holcomb v. Blimp son, 8 Term. 141; 1 Story, Eq. Com. § 130, 131; Lyon v. Richmond, 2 Johns. Ch. R. 60; Hunt v. Rousmanier’s Adm’rs, 5 Cond. R. 401.
    
      C. R. Clifton, for appellee,
    Reviewed the testimony, and cited 4 Kent’s Com. (3d ed.) 142, 143, and authorities cited; 1 Dev. Eq. Cases, 373.
   Mr. Justice Thachek

delivered the opinion of the court.

The record in this case being quite voluminous and apparently intricate, has received, on that account, none the less our careful perusal .and consideration.

The main facts, in brief terms, are these. Lenoir & Barnes sold Holeomb a stock of goods, and took his promissory note in payment. At a subsequent period, after running accounts had existed between the parties, a new note was made by Holcomb for the balance then supposed to be due. After the maturity of this second note, there existed a dispute as to the amount then really due upon this note, but Lenoir & Barnes took legal steps to collect the amount of the note. Pending this proceeding, a compromise was acceded to, and by the intervention of a friend of both parties, an account was had and a balance was stated against Holcqmb. This result, however, was charged to have been brought about against Holcomb by undue and fraudulent influences. Nevertheless, Holcomb, in pursuance of the compromise, executed a bill of sale of certain slaves to Lenoir & Barnes, and they, simultaneously with the bill of sale, executed an instrument, which, on the part of Holcomb, is insisted is a mortgage, and on the other part is claimed to be but a defeasible purchase. The bill is filed by Holcomb to revise the whole transactions, to procure allowance for sundry payments and accounts, to obtain credit for the hire of the slaves while in the possession of Lenoir & Barnes, and for their redemption. The final decree was made for the complainant in the vice-chancery court, in accordance with his bill.

The case, we think, was very deliberately and elaborately examined in the court below, and so far as the evidence as to the payments, &c. and the value of the hire of the slaves, &c. is concerned, we can find no good ground for interference; certainly not such a preponderance against the equity of the conclusions, as would warrant the expense and delay of a revisal of such extensive and long standing accounts. This, our conclusion upon this point, could only be shown by a course of reasoning upon facts, which would be nearly co-extensive with the length of the record itself.

The point to which we have deemed it chiefly necessary to direct our attention and examination, is the character to be assigned to the instrument executed by Lenoir & Barnes to Holcomb, and constituting the exhibit “F ” in his bill, whether the same be a mortgage or a defeasible purchase and conditional sale.

From the fact that this instrument was executed cotempora-neously with the bill of sale of the same property from Holcomb to Lenoir & Barnes, our inclination wilf be, if it can be consistently done, to hold the instrument to be a mortgage. For it was said by Lord Hardwicke, in Longuet v. Scawen, 1 Vesey, Sen. 405, that it was well known that the court leaned extremely against contracts of this kind, where the liberty of repurchasing is made at the same time concomitant with the grant, being part of the' same transaction; the court endeavoring to bring them to be cases of redemption.”

The form of the instrument itself is the first thing always to be looked to, in order to test the distinction. Its language, in an essential part, is as follows : That the said Holcomb is to be allowed the privilege of redeeming the above slaves,” &c. And in the case of Longuet v. Scawen, above quoted, the lord chancellor remarks, that “ there is indeed a distinction in the nature of the transaction, between a power of redeeming and of re-purchasing, obtained by usage, which governs the sense of the words.”

The bill of sale and the instrument under consideration, being executed at the same time and in regard to the same transaction, must be considered as one thing. The transaction shows that there was a precedent debt due by Holcomb to Lenoir & Barnes. The amount of the consideration money in the bill of sale is fifteen hundred dollars, and the amount to be paid in defeasance of that bill of sale was likewise fifteen hundred dollars. It is well settled that the giving of an absolute deed, on account of a pre-existing debt, with a concurrent agreement in writing or by parol, for a redemption, at any future time upon payment of the debt, is a mortgage. Conway's Ex’rs v. Alexander, 7 Cranch, 238; Holmes v. Grant, 8 Paige, C. R. 250. Bearing in mind this fact and this legal principle, and also that the instrument was made in December, 1842, and that by it a redemption of all the slaves could be made in less than two years from that date, it can hardly be conceived that an absolute purchase could have been contemplated by Lenoir & Barnes. The amount to be refunded was the same allowed in the purchase. It would seem, therefore, that the transaction merely contemplated a security which imports always a mortgage. A debt cannot be viewed as extinguished when a provision for its payment at a future time is made. In this connection we may add, that the instrument shows that a final settlement of the pre-existing debt was mot in all particulars had. It narrates, that, “ as it.appears that a mistake has been made in the last settlement between the said Holcomb and the said Lenoir & Barnes of the sum of ninety-four dollars, it is agreed that said sum of ninety-four dollars shall be equally divided, and that the said Holcomb pay to the said Lenoir & Barnes one half of said amount over and above the amount included in a certain promissory note, made by the said Holcomb, and payable to-the said Lenoir & Barnes.”

The answer of the defendants in the bill and the evidence of witnesses shows, that there was a conversation, treaty, and negotiation to the effect that Holcomb should be permitted to redeem the slaves. The answer admits that Holcomb “bargained and sold the negroes in exhibit ‘ G ’ mentioned, to respondents, but being desirous to redeem the same, he persuaded these respondents to consent to the agreement filed by complainant as exhibit ‘F.’ ” The witness, Carr, who acted, as it seems, for both parties, states that “ after the bill of sale was written, complainant and respondents entered into a conditional agree-, ment that complainant should have the privilege of redeeming and taking back said negroes, by paying to respondents, at certain different periods, certain sums of money,” &c. Again he says, that “ complainant’s objection to the first bill of sale was, that witness had incorporated in the body thereof interest in favor of Lenoir & Barnes, and Barnes stated that the labor of the negroes would be worth the interest; if Holcomb redeemed them he did not want any interest.” Cooper, another witness, testifies that “ Holcomb was to have the power of redeeming the negroes.”

It may be remarked, as entitled to some weight, that the term re-purchase” is not used in the instrument by the defendants nor the witnesses. It is true that Lord Hardwicke, on one occasion, (Lawley v. Hooper, 3 Atkins, 280,) said that there is very little difference in reality between the meaning of the word redemption and re-purchase ; but he was then speaking of those words as' being used by witnesses, and he adds that the in-dorsement on the back of the deed uses the words re-purchase and redemption promiscuously, which plainly shows that it was considered by all parties as a power to redeem.” We have also stated above his more deliberate opinion as to the meaning of these words.

Lastly, it is laid down in Poindexter v. McCannon, 1 Dev. Eq. Cas. 373, and quoted by Chancellor Kent in his Commentaries, vol. 4, p. 144, n. that “ if it be doubtful whether the parties intended a mortgage, or a conditional sale, courts of equity incline to consider the transaction a mortgage, as more benign in its operation.” This principle fortifies strongly the one with which we commenced the examination of the instrument. “

The case in a few words is this : “ A person supposes himself to be largely in debt, and, to relieve himself from its immediate consequences, he makes a sale of his property to his creditor to the value of the amount of that debt, reserving to himself the power of redeeming that property. Here is a reciprocity of remedies between the parties. The grantees are secured in their claim by the property, and the grantor may be restored to his property by the payment of the debt. The debt is therefore not in reality extinguished. The transaction must be considered as a mortgage.

Decree affirmed.  