
    Strider v. Reid’s Adm’r.
    April Term, 1845,
    Richmond.
    Conditional Sale. — An instrument construed to be a conditional sale.
    On the 1st of May 1830, William Reid executed to Robert S. Reid a deed conveying to him a negro boy Daniel, to secure to their brother Nelson Reid the sum of 150 dollars, with interest from the 7th of August 1827; and on the 9th of December 1830, he entered into an agreement with John Strider, by which it was witnessed: ‘ ‘That the said John Strider promises to pay on demand to Robert Reid, for the said William Reid, a sum of money not exceeding one hundred and ^eighty dollars ; it being the amount intended to be secured by a deed of trust, or bill of sale executed by the said William Reid to the said Robert Reid on a negro boy Daniel.
    And the said William Reid on his part, promises and agrees to leave the said negro boy Daniel in the possession of the said John Strider, until the 1st day of January 1834, at which time he is to refund to the said John Strider the sum paid to the said Robert Reid, and take the boy, or receive the balance which the boy may then be worth by fair valuation, and make a good title to said Strider for said negro boy Daniel. The said William Reid also binds himself to procure an assignment of the said deed of trust or bill of sale, by the said Robert Reid to the said John Strider, on or before the demand of the above named sum of money. Witness our hands and seals,” &c.
    The debt due to Nelson Reid was paid by Strider; and a written assignment on the back of the deed of trust, was executed by Robert Reid, but it does not appear that it was ever delivered to Strider.
    William Reid died previous to April 1835, without having attempted to redeem the boy Daniel; and George W. Hunter, having qualified as administrator on his estate, brought this suit to redeem the said slave; insisting that the paper executed by Strider and Reid, was a mortgage, and not a conditional sale.
    In the progress of the cause a commissioner was directed to state an account of the amount advanced by Strider for Reid, with interest thereon from the 1st of January 1834, and of the hires of the boy since that period, and his value at that time. This report ascertained that the amount advanced by Strider, with the interest thereon, was fully satisfied by the hires of the boy; leaving Strider debtor on account of these hires in the sum of 32 dollars 92 cents; and that the value of the boy on the 1st of April 1834, was 600 dollars. *In June 1837, the cause came on to be finally heard, when the Court being of opinion that the agreement between Strider and William Reid was a mortgage, made a decree directing the slave to be delivered to the plaintiff; and that Strider should pay to the plaintiff the sum of 32 dollars 92 cents, with interest from the 20th day of June 1837, the time to which the account of hires was brought down.
    From this decree the defendant applied to this Court for an appeal, which was allowed.
    Cooke, for the appellant.
    The contract between Strider and Reid contains all the distinguishing features of a conditional sale. First. Possession was delivered by Reid to Strider at the time of the transaction. The cases of Ross v. Nor veil, 1 Wash. 14, and Thompson v. Davenport, Id. 125, illustrate the importance of this fact in determining the nature of the contract. Second. There was no pre-existing debt from Reid to Strider. On that point the Court is referred to Comegys v. Alexander, 7 Cranch 238. Third. There is- no covenant by Reid to repay the money advanced by Strider. On that point see Comegys v. Alexander, supra; and Chapman v. Turner, 1 Call 280. In fine, it is a sale with a right to repurchase at a fixed price, (id certum est quod certum reddi potest) and at a specified time, which is the characteristic of a conditional sale. Comegys v. Alexander, supra; and Robertson v. Campbell, 2 Call 421.
    If this is a mortgage to be redeemed, it is a mortgage to be foreclosed. The rights are correlative. But it is obvious on the face of the contract, that Strider could not have sustained a bill to foreclose. He is forbidden by the terms of the contract; and he is precluded by the fact, that Reid has not covenanted to pay any money. He has reserved a rjght to pay and take back the slave, but he has not bound himself to do so. !
    *C. & G. N. Johnson, for the appel-lee.
    The general rule upon the question, whether an agreement is a mortgage or conditional sale, is, that every case must be determined upon its own circumstances. There are, however, subordinate to this general rule, some more special rules applicable to the construction of these instruments. And first, where the transaction is a loan of money, and the contract is made to secure it, there-it is a mortgage'. Second, once a mortgage always a mortgage. Third, the intention of the parties will determine the nature of the instrument. These propositions are stated by Coote on Mortgages, 18 Haw Bib. p. 9 to 13. Some of them are sustained by Conwaj v. Alexander, 7 Cranch 218; though there the Court held, that the instrument was a-conditional sale. And the Court is referred to-2 Rob. Pr. 51, where some of the cases decided in this Court are cited.
    If Reid only wanted the value of his slave, then a sale under the deed of trust to Robert Reid would have answered his purpose'; but the making this arrangement with Strider, to prevent that sale, is a strong evidence that this contract is a loan of money. The fact, too, that the hires of the boy are to go for interest; and that the sum advanced was to be returned at a specified time without interest, was held to be a strong feature of a loan in Conway v. Alexander, supra. And the fact, that before Strider advanced the money, Reid was to procure the assignment of the deed of trust, from the trustee, must have been intended to give to Strider the benefit of that security for. the, ,m,qney he (should advance.
    As the assignment of the trusCd'se’d' enabled Strider to sell the slave -for the payment of the money advanced by him to William Reid, ' a covenant by Reid to pay it was unnecessarj; and the argument founded on the absence of such a covenant in the agreement, therefore fails. Indeed it is well said by Tucker, President, in *Moss v. Green, 10 Beigh 251, that the want of a covenant to repay the money, is by no means conclusive of the nature of the contract; and he expresses his surprise that so much importance has been attached to it.
    It is said that Strider was estopped by his contract from selling. But though es-topped to sell under his agreement, there .was no restraint to this proceeding to sell under the trust; especially after the 1st January 1834. At that time, Reid might have made his election of the alternatives of the contract; or, he failing to do so, Strider might have elected to sell or to foreclose the mortgage; but neither having-exercised their right at that time, the right of election reverted to Reid, and his administrator has exercised that right by asking to redeem the slave. •
    It is said again that the rights of redemption and foreclosure are correlative, and that as Strider could not foreclose, Reid could not redeem. It is not always true that the rights to redeem and to foreclose, are correlative. Coote on Mortgages, 18 Baw Bibr. 33. But why might not Strider have foreclosed the mortgage. The difficulty is raised by assuming that the agreement is a conditional sale. If it is a conditional sale, so as to preclude Strider from a foreclosure, of course we would be precluded from redeeming. But that is to assume the whole question in dispute. If it is a mortgage, then he might foreclose, and we may redeem it.
    
      
       For the seciuel to the principal case, see Reid v. Strider, 7 Gratt. 76.
    
   ABBBN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the contract, as understood by both parties, and as appears from a true construction of the agreement between them, was a conditional sale of the slave, at a price to be fixed by a fair valuation at a future day; that the mode of ascertaining the price, was for the benefit of the seller; and in this aspect the case is free from the objection sometimes preferred, that such contracts are a de? vice resorted to for *the .purpose of obtaining property from a needy debtor at less than its fair value. In this case possession of the property was delivered to the purchaser, who was entitled to retain such possession until the time fixed for the payment of the money, without accounting for hires. That the seller reserved the right to abrogate the contract of sale, by returning the mones' advanced, without interest; and if not so abrogated, the contract of sale became executed, and Strider became liable for the balance of tbe price of the boy. The Court is therefor^ of opinion, that there was error in holding th'e', contract to be a mortgage and iiót a sale.

The Court is further of opinion, that as it appears the slave was worth 600 dollars on the 1st of April 1834, in the absence of any other proof as to his value on the 1st of January 1834, that sum should have been taken as the price of the slave on that day; and that a decree should have been given against Strider, for 420 dollars, the balance, after deducting the 180 dollars advanced, with interest on said 420 dollars from 1st January 1834 until paid.

Decree reversed with costs; and a decree according to the foregoing opinion.  