
    *Moss v. Green.
    April, 1839,
    Richmond.
    [34 Am. Dec. 731.]
    Conditional Sale — When Not a Mortgage — Case at Bar. —A. being in want of money, B. his friend applies to C. to lend it, which the latter refuses, but says he will advance the money upon condition that A. will let him have a particular slave at a fair value. A conversation ensues as to the value of the slave, and $600 is fixed on as a fair price. Whereupon C. agrees that if A. will convey the slave to him, he will advance the money that is wanted, and if it is returned at Christmas with interest, he will release the slave, and if it is not returned by" that time, he will make it $600, and keep the slave. A. being informed of this proposition, declares himself willing to comply with it, and observes that the slave is the one he preferred to sell, and that he thinks $600 a fair price. Afterwards A. and C. go together to a scrivener, and request him to write a conditional bill of sale for the slave, which Rewrites accordingly, and it is thereupon executed by A. It expresses on its face that A. in consideration of $393 -89 cents, which is paid to him, has bargained and sold the slave to G. with the following conditions, to wit: if A. shall pay to C. the sum of $393 89 cents on or before the 25th of December following, with lawful interest from the date, then the conveyance is to be void; but if A. shall fail to return the said sum and interest on or before the 25th of December, he obliges himself, upon C.’s paying him the sum of $206'] 1 cents, (which makes up the $600) to deliver to C. the slave, and make him a complete title. A. failing to make payment on or before the 25th of December, 0. gets possession of the slave, and insists that the transaction is a conditional sale, which he can make absolute by paying the $206 11 cents; whereas A. contends it is a mortgage, which he may redeem by paying the $393 89 cents with interest. Held, the transaction is a conditional sale, and not a mortgage; dissentientibus Tucker, B. and Brooke, J.
    Same — Equity Jurisdiction — Multiplicity of Suits — Decree for Payment by Vendee. — A. failing in his bill to redeem, the question arises whether a court of equity has jurisdiction to make any decree as to the $20611 cents, which G. in his answer declared his willingness to pay. Held, under the circumstances, equity may put a stop to further litigation, and decree the payment of that sum with interest, but without costs.
    The principal question in this cause, namely, whether the transaction between the parties was a mortgage or *a conditional sale, depended chiefly upon the following writing, executed by Green and delivered to Moss, which the latter produced and filed with his answer:
    “Know all men by these presents that I John Green, for and in consideration of the sum of three hundred and ninety-three dollars and eighty-nine cents to me in hand paid, as hereafter mentioned, by James Moss, have bargained and sold unto the said Jajnes Moss three negroes, to wit, Creasy and her two children, and her future increase ; to have and to hold the said negro woman Creasy and her two children, to wit, Rliza and Buey, and her increase, to him the said James Moss, his heirs and assigns forever, with the following conditions, to wit: if the said John Green, his heirs or assigns, shall well and truly pay to the said James Moss, his heirs or assigns, the said sum of three hundred and ninety-three dollars and eighty-nine cents, paid the said Green as above, on or before the twenty-fifth day of December next, with lawful interest from the date hereof, then the above conveyance to be void and of no effect; but if the said John Green shall fail or neglect to return the said sum of three hundred and ninety-three dollars and eighty-nine cents and the interest, on or before the said twenty-fifth day of December, the said John Green obliges himself, his heirs or assigns, upon the said James Moss paying him the sum of two hundred and six dollars and eleven cents to make the sum of six hundred dollars, the consideration value of the said negroes, to deliver to the said James Moss, his heirs or assigns, the said negro woman Creasy and her two children, to wit, Eliza and Eucy, and her increase, and make him a complete title to the said negroes. In witness whereof the said John Green hath hereunto set his hand and seal this second day of November 1819.
    John Green [Seal.]”
    Witness,
    Howell Myrick.
    *On the 13th of June 1821, Green filed a bill in the superior court of chancery holden at Richmond, wherein his case was stated rather imperfectly.
    A supplemental bill, filed in January 1822, stated the case as follows : That in September 1819, the complainant, having occasion for money to aid him to pay off an execution issued against him by Eynch and Carter on a judgment rendered in Sussex superior court, and to redeem a negro girl of his named Rhoda, taken under the execution, applied (through mr. William Parham) to James Moss for the loan of money for that purpose. That Moss agreed to lend the money on the following terms, viz. that for the loan of the money, the complainant should give him a conditional bill of sale for a negro woman named Creasy, and her two children named Eliza and Eucy, redeemable by the payment of the money, with interest, at Christmas following. That Rhoda was sold by the sheriff about ten days after Sussex court, in October 1819, and was cried out to Moss as the highest bidder, at about the price of 230 dollars, or perhaps 3 or 4 dollars more. That Moss agreed positively, before and at the sale, that the complainant should have the right of redemption on the terms aforesaid. That no money was then paid, hut it was agreed to be paid by Moss at the next Sussex court, and the sheriff gave Moss a bill of sale for Rhoda, until the conditional bill of sale for Creasy &c. should be drawn. That the said execution being for a considerable sum, and the complainant not having a sufficient sum to pay it off, he borrowed of Moss the farther sum of 23 dollars 56 cents Virginia money, and about 140 dollars 39 cents North Carolina bank notes at 7 dollars discount, and at the same time executed to Moss a conditional bill of sale for the said negro woman Creasy and her two children, expressing on the face of it, as the complainant believes, that he should have the right of redeeming them on the twenty-fifth day of December *next. That the complainant was to retain possession of the slaves. That it was stipulated by Moss, that if the complainant did not pay the said borrowed money, with interest, on the 25th of December ensuing, then, if Moss should pay the complainant the sum of 206 dollars and 11 cents, the complainant should deliver up to him the said negro woman Creasy and her said two children. That on the 25th of December, the complainant had the mohey with interest ready to pay, but was very much indisposed, and did not carry and offer it to Moss, nor did Moss offer him, then or since, the said sum of 206 dollars and 11 cents, or any part of it (if that could have availed him). That on the said 25th of December, however, the said woman with her two children ran away from the complainant to Moss, and he has detained them ever since. That on the 27th of December, that is, two days after the time for redemption, Moss came to the complainant, near his dwelling-house, and complainant stated to him his indisposition on the 25th, hut that he had then, and still, the borrowed money ready to pay to him, as he wished to redeem the woman and her two children. That Moss then told the complainant, explicitly, that he would not permit him to redeem them ; that they had been, since the 25th of December, at his house, and he would keep them ; that he had got the advantage of complainant, and would keep it. But Moss made no tender or offer to pay him the said sum of 206 dollars and 11 cents.
    Moss is made defendant to both the original and the supplemental bill: and the prayer is, that complainant be permitted to redeem Creasy and her two children, on paying up the sum borrowed, with interest; that Moss may be compelled to pay a reasonable hire for Creasy from the 25th of December 1819, till he shall deliver her up to the complainant : that he be also decreed to deliver up the bill of sale for Rhoda ; and for general relief.
    *Moss answered, saying, that the allegations in the bill as to Green’s borrowing money from him are untrue : that Green applied to him for a loan of money, through one of his neighbours, but he declined the application : that afterwards a negro belonging to Green, to wit, Rhoda, being exposed to public sale, defendant purchased her at the sale, being the highest bidder, and took a bill of sale for her from the sheriff who sold her, which bill of sale defendant has in possession: that Green, through a certain William Parham, solicited defendant for a sum of money on loan, which the defendant refused, and told Parham, if Green would sell defendant a negro woman he had in possession, to wit, Creasy, and her two children, he would give up to Green all title he had to Rhoda, and pay Green the balance in cash, or on such terms as might be agreed on : and that Green acceded to the offer, and executed to defendant a bill of sale for the said negro woman and children ; which bill of sale defendant files with his answer, and prays to be made a part thereof. As to any conversations of defendant with Green respecting a loan of money to him, or any promise to permit him to redeem the said negroes, he says he never negotiated with Green in any way, except in the way alleged in this answer. He relies on the sealed instrument filed by him, as disclosing the whole transaction respecting the said sale of negroes. He paid to Green the sum of 393 dollars 89 cents, as is expressed in the said bill of sale, in part for the said negroes, and Green never did offer to pay defendant the said sum, either before the 25th of December next ensuing the execution of the said bill of sale, or on that day, or since that day,- but defendant did tender to Green the sum of 206 dollars 11 cents, the balance he was to pay, making in all the sum of 600 dollars, which was adjudged by all who saw the *negroes to be their full value, and was in reality their adequate value. He is now ready, and ever has been ready since the execution of the bill of sale, to comply on his part with the condition. He did consider and now considers the instrument in his possession, conveying the said slaves to him, as a conditional sale, to be defeasanced by complying with its terms. Green failed on his part. And defendant came peaceably into the possession of the slaves, and insists that he ought not to be disturbed in that possession. All the allegations in the original and supplemental bills, contrary to this answer, are denied.
    William Parham deposed, that in October 1819, Green came to him, and informed him that he had some property in the hands of the sheriff, which was to be sold in a few days, and he was very anxious to release it, and that he had a part of the money and wished to borrow the balance; and enquired of deponent if he knew of any person who h'ad the money, that would lend it for a short time; and farther said he would pledge a negro for the payment by Christmas following. Deponent informed Green, he had heard that Moss had some money by him ; and Green requested him, if he should see Moss, to endeavour to get the money for him, and he would give a bill of sale for 'a negro woman, to secure the payment, with interest, by the Christmas following, and if the money was not paid by that time, he should have the negro. Deponent saw Moss the next day, and mentioned the subject to him. He at first refused to have any thing tó do with Green in any way whatever ; but after some conversation with deponent on the subject he agreed to advance the money, upon condition that Green would let him have, at a fair value, a negro woman named Creasy and her two children (which woman a negro man of his had for a wife). Moss then described the negroes to deponent, and asked him what he thought they were worth ; and deponent *answered, that from the description given, he thought six hundred dollars would be a fair price for them. Moss then agreed that if Green would convey to him the said negro woman Creasy and her two children, with her future increase (she being pregnant at the time), he would advance the money wanted, and if the sum advanced was returned by the Christmas following, with interest, he would release the said negroes, and if the money was not returned by that time, he would make the sum so advanced 600 dollars, and keep the negroes. A day or two afterwards, Green applied to deponent to know if he had made an arrangement for, him to get the money. Deponent informed him of the proposition of Moss, and he said he was willing to comply with it, and observed that the negro woman was the one he preferred to sell, and that he thought 600 dollars a fair price for her and her children. Deponent then advised him to go to Moss, and request him to meet at deponent’s house the next morning, take a conveyance for the negroes, and pay the money. Green came to deponent’s house the next morning, and waited some time, and Moss did not come ; and at Green’s request, deponent wrote a letter by him to Moss on the subject,in the following words : “Sir, I have seen mr. Green, and he is willing to convey to you his negro woman Creasy and her two children, for the loan of the money that he now wants, and if he fails to return it to you with interest by Christmas, he will then deliver you the negroes upon your making the sum loaned him 600 dollars. If you will let him have the money, he has pledged his word to me that he will execute the conveyance at any time. 18th October 1819.”
    Howell Myrick- deposed, that by virtue of an execution, he, as deputy sheriff, sold a negro girl taken from John Green, named Rhoda, and Moss became the purchaser r that some time afterwards, Green had to pay him as sheriff a farther sum of money, and Green and *Moss came together to-deponent, with a request that he would write a conditional bill of sale for a negro woman Creasy and two children, which he did: that Moss admitted that the negro girl Rhoda, purchased at the’sale, was included in the consideration money in the conditional bill of sale which deponent wrote, and so Green had purchased of Moss the said girl Rhoda. The balance of the consideration money in the conditional bill of sale, after deducting the price of Rhoda, was paid to deponent.
    David Flowers deposed, that on the 27th of December 1819, Moss and Green met in the road, when Moss said to Green, “I have come for a settlement,” and Green answered that he did not expect him so soon, for he had promised him twenty days notice ; when Moss replied that he did not, but that he had given him ten days notice.” Green’s answer was,” I am ready to settle with you now, if you will pay me for your board with me.” Moss replied that he had done enough for him; when Green rejoined, “I don’t know what it was.” Moss answered, “In getting work for you to do ; but you done then as you do now, done nothing, and it’s useless to talk any more about it. The negroes are at my house, and there I mean to keep them.” Green enquired how they came there, for he knew nothing about their going. Moss replied, “Well, they are there, and I have come to pay the money for them.” Green said, “I don’t wish you tó pay me any money, for I would rather pay you than that you should have the negroes. Suppose they were to die ?” Moss answered, “I have the advantage of you, and I mean to keep it. I have the money in my pocket, and if you will go with me to mrs. Green’s, I will pay you every cent. I have your bond, but I will not offer you that. I have got the Virginia money and specie.”
    There were two other depositions, one as to the fact of Moss’s boarding with Green some years before, and *the other mentioning' a settlement between them subsequent to the boarding.
    On the 9th of February 1826, the chancellor ■decreed that if the plaintiff should, within ■six months, pay to the defendant the sum of 393 dollars 89 cents, with interest thereon from the second of November 1819, the defendant should deliver to the plaintiff the slaves Creasy and Eliza and Lucy, and their increase, and should also deliver to the plaintiff, to be cancelled, the bill of sale of the second of November 1819. And the court further -ordered that the defendant render an account of the hires of the said slaves during his possession of them, before one of its commissioners.
    Commissioner Ritchie was of opinion that Moss was entitled to compensation for keeping the negroes from the year 1820 to the 9th of August 1826, the time of the plaintiff’s default to satisfy the claim ; after which period, the elder children becoming valuable, he thought the plaintiff should receive hire. The result according to his report was, that instead of any hires being due to the plaintiff, there was a balance due from him, for support of the negroes, of 95 dollars 9 cents, with interest on 75 dollars, part thereof, from the first of January 1830. To this report -Green excepted.
    In the mean time, Moss having refused to receive the money which the decree required ■Green to pay him, Green, on the 24th of August 1829, deposited in the office of the bank of Virginia at Petersburg a sufficient amount in specie, with his check on the office for the same, to be paid to any person legally authorized to receive it, after a final decree in the ■cause.
    On the 24th of March 1830, the cause came on to be heard on the report of the commissioner. On consideration whereof, the court, disapproving so much of the report as relates to hires, and being of opinion that a reasonable hire should be allowed for the woman Creasy, and that 20 dollars per annum would be this reasonable *hire, amounting, for the time of the defendant’s possession, to 208 dollars 33 cents, and that this hire should be deducted from the -debt with the interest thereon to the date of the deposit, which would leave a balance due to the defendant of 417 dollars 42 cents, decreed, that after deducting the plaintiff’s costs from the last mentioned sum, the defendant, on receiving a check for the balance out of the money deposited in the branch of the bank of Virginia at Petersburg, should deliver to the plaintiff the negro woman •Creasy and her children, and also the bill of sale, to be cancelled.
    Prom this decree Moss appealed.
    Shands, for the appellant,
    observed, that the nature of the contract was fully disclosed by the sealed instrument. Green, in order to redeem the slaves, was bound to pay a certain sum on a certain day, and in case of default on his part, the right accrued to Moss, by advancing a sum of money, to be put in possession of the slaves and have his title perfected. The evidence of the witness who drew the contract shews most clearly that an absolute sale was intended and an adequate price fixed. A sale being intended, a court of equity ought not, under the circumstances, to permit Green to redeem. The agreement in this case is substantially like that in Chapman’s adm’x v. Turner, 1 Call 280.
    Leigh, for the appellee,
    said, that the question whether a transaction was a conditional sale or a mortgage, was always one of no little nicety. It is to be determined upon a view of all the circumstances of the transaction, without being confined to the written evidence of it. The cases which have been decided on the subject are Thompson v. Davenport, 1 Wash. 125 ; Chapman’s adm’x v. Turner, 1 Call 280 ; Robertson v. Campbell & Wheeler, 2 Call 421 ; King v. Newman, 2 Munf. 40 ; Roberts’s adm’r v. Cocke ex’or &c., 1 Rand. 121 ; Leavell v. Robinson, 2 Leigh 161. In this case the 'K'appellee relies on the facts, 1. that the money advanced by Moss was to be returned by Green with interest ; 2. that the property was in the mean time to remain with the bargainor ; and 3. that the delivery of the slaves at Christmas by Green to Moss was made dependant on a double condition, viz. that Green should not then refund the 393 dollars 89 cents with interest, and that Moss should then pay him the 206 dollars 11 cents. Now, if Green did not pay the former sum, neither did Moss pay him the latter. To make the conditional sale complete, the two conditions were to be contemporarily complied with, namely, at Christmas. If Green sold on condition of his not paying 393 dollars 89 cents at Christmas, Moss purchased on Condition that he should pay 206 dollars 11 cents at the same time. Moss did not pay the money. What passed on the 27th of December was not even a tender of it. This last circumstance distinguishes this case from all the others that have been before this court, and seems to indicate the necessity of holding that Green should be allowed to redeem. For the doctrines in England, see Willett v. Winnell, 1 Vern. 488, and 2 Cruise’s Dig. 93, 4.
    
      
      ConditionaI Sales — Distinction between Mortgages and Conditional Sales. — The principal case is cited in Earp v. Boothe, 24 Graft. 375. See generally, mono-graphic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      It is tlie instrument of tlio second of November 1819, inserted in tbe commencement of this report.
    
   STANARD, J.

A careful examination of the record has resulted in the conviction that the transaction between these parties, which the appellee insists was, and the court below has adjudged to be, a loan secured by mortgage, was a conditional sale and purchase. This to me is made manifest by the terms of the bill of sale, coupled with the evidence of Parham and Myrick. The real contract, as understood by both parties and the witnesses, was a sale of the slaves at a price fairly fixed to the satisfaction of both parties ; the one intending to buy, and the other being willing to sell ; the purchaser advancing a part of the purchase money; the seller reserving the right to abrogate the contract *of sale by returning the money so advanced, with interest, at or before a particular time; and if not so abrogated, the contract to be completely executed, by the purchaser paying the residue of the purchase money, and the seller surrendering the possession of the slaves. To give the relief sought by the appellee, would be to give the active assistance of a court of equity to a party seeking to absolve himself from a fair contract. This ought not to be done.

My opinion therefore is, that the decree of the court of chancery is erroneous and ought to be reversed : and as the appellant avows his willingness to pay the balance of the purchase money; and as, from delay by reason of the pursuit of a supposed right of redemption, and the sanction of that claim by the court below, and the possession by the appellant of the slaves, there may be some difficulty in the recovery of it by a suit at law, which in strictness was the proper remedy, — therefore, to prevent the occasion of future litigation between the parties, I think it fit that a decree should be rendered in favour of the appellee for the balance of-the purchase money and interest, but without costs.

PARKER, J.

The bill was filed in this case to redeem certain slaves alleged to have been conveyed to the defendant as a security for the repayment of a loan of 393 dollars 89 cents. The answer, which is responsive to the bill, denies that the deed for the slaves was intended merely as a security for money loaned. It avers that the respondent refused to advance his money on the terms proposed by Green of pledging a slave for the repayment ; but that the proposition made and accepted was, that if Green would sell him a negro woman named Creasy (whose husband he owned) with her two children, for a price ascertained, he would advance the sum then required by Green, in part pkyment, and Green should be at liberty to return it on or before the *25th of the ensuing December, and avoid the contract; but if not, that he would pay the balance, and take the slaves in possession.

The depositions of Parham and Myrick go far to verify this statement. Green had applied to Parham to get from Moss the money he wanted, and said he would give a bill of sale for a negro woman, to secure the repayment with interest at the following Christmas, and that if the money was not paid at that time, Moss should have the negro. When Parham made this proposition known to Moss, he at first refused to have anything to do with Green, but after some conversation said, if Green would let him have Creasy and her two children, he would advance the money he wanted, upon condition that he would let him have them at a fair value. That value was then agreed on between Parham the agent of Green, and Moss, at six hundred dollars, and it was arranged that Moss should, if Green approved it, advance the sum then required by Green, and take a conveyance of the slaves, with a stipulation that if the sum so advanced was returned by Christmas with interest, Moss would release the slaves, but if the money was not then returned, he would make up the sum of 600 dollars and keep them. Par-ham informed Green of this proposition and valuation, who said he was willing to comply with it; that Creasy was the negro woman he preferred to sell, and that he thought 600 dollars a fair price for her and her children. After this, Parham took no further part in the transaction, except, as he says, to write a letter to Moss, (which it does not appear that he received,) informing him of Green’s acceptance of his terms.

The bill of sale was written and attested by Howell Myrick. He proves, that he was requested by Moss and Green to write a conditional bill of sale for Creasy and her two children; that Moss had previously bought, at a sheriff’s sale made by My-rick, a negro woman belonging *to Green, named Rhoda; and it was agreed, on the occasion referred to, that the price paid for Rhoda was to be a part of the consideration money for Creasy and her children, and that the balance of the consideration money in the conditional bill of sale mentioned should be paid, as it was in fact paid, to Myrick. The bill of sale expresses the consideration to be 393 dollars 89 cents, and is in the common form of such instruments, but reserving liberty to Green to repay the said sum of 393 dollars 89 cents, with interest, on the 25th of the ensuing December, in which event the sale was to be void. If, however, Green neglected or refused to do so, then he bound himself, upon Moss’s paying him the additional sum of 206 dollars 11 cents (to make up the price agreed on of 600 dollars) to deliver Creasy and her children to Moss, and to make him a complete title therefor. No time is fixed for this additional payment, but it must necessarily have been after the 25th of December, because, until that day expired, it could not be known whether Green would pay the 393 dollars 89 cents or not.

Green failed to pay or tender the money at the time stipulated, but on the 27th of December, merely said to Moss he was ready to settle with him, if he would pay him for his board ; which it seems had been due, if due at all, some eight or nine years before. Moss got possession of the slaves, and on the same 27th of December, offered to pay the additional 206 dollars 11 cents ; which Green refused, and in 1821 brought this suit.

Upon this state of facts, the question propounded to the court is whether this transaction between Green and Moss was a mere mortgage, or a conditional sale ? If it was in its inception a mortgage, I agree that the court will not permit it to be converted into an absolute purchase, for the default in the payment of the mortgage money at the appointed time. The rule is, once a mort-gage always a mortgage, to which the right of redemption is inseparably incident, and cannot be restrained by any clause or agreement whatever made at the time of the loan. Willett v. Winnell, 1 Vern. 488, (which, by the very terms of the statement, was admitted to be a borrowing of money and a mortgage to secure it). But if the intention of the parties is to do something more than provide a security for money loaned or advanced, and to make a conditional sale if a further sum is advanced or the first sum is not repaid, there is certainly no rule of law which authorizes a court to control that intention. Thus in the case of Newcomb v. Bonham, 1 Vern. 8, 214, 232, where A. made an absolute conveyance for a sum of money paid, and by another deed of equal date the lands were made redeemable at any time during' the life of the grantor, the final decision of the court of chancery, affirmed in the house of lords, was that the estate was absolute in the grantee after the death of the grantor; there being proof that such was the intent of the parties, and their understanding at the time. So in the case of Chapman’s adm’x v. Turner, 1 Call 280, an instrument in the following words was held to be a conditional sale, irredeemable after the day fixed for the payment of the money loaned : “I this day received of mr. Jno. Turner thesum of £30. and put a negro woman named Hannah in his hands as security, and if the said £30. is not paid at of before next July Hanover court, the said Turner is to have the said negro for the said ,£30.” (Signed) “ Richard Chapman.” The words “ and put a negro &c. in his hands as security ” were considered to have effect by construing the sale as defeasible till July Hanover court, (during which time the negro would be only a security,) and afterwards absolute : whereas the other words of the agreement, “ and if the said £30. is not paid at &c. Turner is to have the said negro for the said ,£30.” would have no effect, (judge Roane said,) without decreeing • *the sale absolute after default in nonpayment. It was also said in that case, that no loan was contemplated between the parties, as Turner had refused to lend, wishing to invest his money in property. That case is stronger against the construction placed on it by the court than the one at bar, because the .£30. was not proved to have been the value of the negro, agreed on between Turner and Chapman, or to have been a fair value ; although, as judge Roane said, it did not fall short of the general estimate of the witnesses “in any excessive degree.” Here, it is proved that the 600 dollars was the full value of the slaves, and that Green was willing to sell them at that price, subject to his right to return the portion of the money paid, within a stipulated time. In the other circumstances, the cases are alike. The sale was defeasible until Christmas, and until that period the slaves would be considered as a security; but if, after that, it is not deemed to be absolute, we shall have to reject the subsequent words of the agreement, and plainly violate the intention of the parties. In this case, too, Moss refused to lend money and take a bare security. His object was to buy the wife of a slave he owned, but to give time to Green to return the money advanced. That object was well known to Green, who consented to sell on the terms proposed. Thus the cases are similar in every circumstance relied on by the judges in Chapman’s adm’x v. Turner, to sustain their opinions that the transaction in that case was a conditional sale ; and there are, in the case at bar, facts proved which tend to strengthen such a conclusion. Besides the fact, already alluded to, of the value of the slaves being arranged and settled with an express reference to a sale, the parties applied to Myrick to write a conditional bill of sale, eo nomine; and it must be intended that they understood ■ : . the difference between such an instrument and a mere security for money lenl.

* Another case in this court, confirmatory of this view of the case before us, is that of Roberts’s adm’r v. Cocke ex’or &c., 1 Rand. 121. It was a loan of money, — a pledge for its repayment by a given day, with interest, — and a stipulation that if not repaid at the day, Roberts should have the negro. It appearing that the £100. mentioned in the bill of sale was probably the agreed price of the negro, as evidenced by the subsequent acts of the parties, no redemption was permitted. To the same effect is the case of Leavell v. Robinson, 2 Leigh 161.

In the case of Robertson v. Campbell & Wheeler, 2 Call 421, judge Pendleton observed that it was often a nice and difficult question to draw the line between mortgages and conditional sales. ‘ ‘ The great desideratum, ’’ says he, “ which this court has made the ground of their decision, is whether the purpose of the parties was to treat of a purchase, the value of the commodity contemplated, and the price fixed ; or whether the object was a loan of money, and a security or pledge for the repayment intended.”

Tried by these criteria, or by the authorities I have cited, I think the transaction between Moss and Green amounted to a conditional sale. The object of the security was not merely to compel repayment, but a sale and purchase was evidently intended, subject to the right of the vendor to defeat it.

That the agreement was executory does not render it the less binding : nor does the fact that the possession was for a time retained by Green, (which, by the way, was the reason why interest was to be allowed if the money advanced was returned,) change the nature of the transaction ; for when Moss asked or obtained possession of the slaves, he was bound to pay the additional sum; while Green was not bound to return any part of the 393 dollars 89 cents if he did not choose to do so, and although the slaves had died subsequent to '*the 25th December, he would still have been entitled to the additional sum, arid the loss would have fallen on Moss.

I am therefore of opinion to reverse the decree, and enter one for the balance only of the purchase money, with interest.

CABELL, J., concurred.

BROOKE, J.

After what has already been said of the details of this case, I shall say very little. It has been often said, that it is frequently very difficult to distinguish a conditional sale from a mortgage; and I add, that conditional sales ought not to be countenanced by a court of equity, as I think they are too frequently the vehicle of extortion. In the case before us, when the treaty for the loan of money was begun through Par-ham, the property of Green the borrower was under execution, and he might in some sense be said to be the slave of the lender. It is true, that before the loan was consummated, his property had been sold and Moss had become the purchaser ; but it does not appear that he was then less embarrassed, and Moss was well apprized of his embarrassment, and appears to have had a great desire to possess the slaves in question, so much so that when he got possession of them against the consent of Green, he determined to keep them, instead of resorting to the proper tribunal for a decision on his contract. The first part of that contract was certainly nothing more than amortgage ; but. to bar any right of redemption, the latter part of it, which by itself might be construed a conditional sale, was afterwards inserted — no doubt with the consent of Green; but that is of no consequence in a court of equity, which will not permit that which is a mortgage to be made irredeemable, even with the consent of parties ; its maxim being once a mortgage always a mortgage. *1 shall not again cite all the cases that have been cited by the bar and bench. The first case in this court is Chapman’s adm’x v. Turner, 1 Call 280 ; and I shall compare it with the case before us. In that case, the slave was delivered to Turner the lender of the money, at the same time that the money was received, and the money was to be repaid without interest; circumstances characteristic of a sale, and not óf a mortgage. In the case before us, the slaves were retained by Green as his property, and the money was to be repaid with interest; both of which are circumstances characteristic of a mortgage. I think these cases are totally unlike. The first was decided by this court to be a case of conditional sale ; and able judges have been heard to say, that even that case ought to have been differently decided ; such is the unwillingness of courts of equity to sustain forfeitures or to limit the right of redemption, when it sees that the first object of the victim was to borrow money, and not to sell property. If the latter was the object in this case, what good reason can be given for Green’s retaining the property, and agreeing to pay interest on the money ? If the intention was to sell on condition, (a condition not likely to be performed, if we are to judge by the state of Green’s affairs,) why was the slave not delivered, as is usual in the sale of a slave ? why was interest to be paid on the money borrowed ? On these grounds, I think the decree of the superior court was correct in deciding that the contract was a mortgage, and not a conditional sale.

TUCKER, P.

I should be much concerned at a difference with part of my brethren on this occasion, If it were not that the line of discrimination between mortgages and conditional sales is confessedly indistinct, and that each case must in a great measure depend upon its own particular circumstances. In this case I *am very clearly of opinion that the transaction between the parties was a mortgage, and not a conditional sale.

In considering this question, I am of opinion that it is unnecessary to recur to the parol testimony for an explanation of the intention. Not that I deny the admissibility of parol testimony to shew that, by the act of the scrivener, that which was intended as a mortgage has been turned into a conditional sale, or that which was designed as a real though defeasible sale has been converted into a mortgage, against the true meaning of the contracting parties. But where there is no pretence that the agreement is not truly drawn, and where, on the contrary, the party insists on the agreement as drawn, and protests against any change of it by parol evidence, I do not admit that the party so insisting can be permitted to resort to such evidence, for the purpose of proving that the transaction was not what upon its face it purports to be. Such is the case here. The defendant in his answer says, that “he relies on the sealed instrument as disclosing the whole transaction respecting the said sale of the negroes, and is still willing to be bound by it on his part.” Although, therefore, in many cases parol evidence has been freely admitted to prove an absolute sale in form to be a mortgage in fact, and in some has been admitted for the much more .questionable purpose of explaining away a mortgage into a conditional sale (Chapman’s adm’x v. Turner, 1 Call 280,) yet such evidence cannot be admissible here. The supposed purchaser does not pretend that the true character of the instrument had been perverted by the fraud, mistake or ignorance ' of the scrivener, but relies upon it as “ disclosing the whole transaction, ” and strongly indicates his protest against an attempt to affect its character by an appeal to loose conversations.

How then is the case upon the face of the written document ? ItannouncesthatGreen, for the consideration of 393 dollars 89 cents to him in hand paid by *Moss, bargained and sold the slaves to Moss, to hold to him and his heirs forever, upon the condition that if Green repaid the money with interest at Christmas, the conveyance should be void. If the deed had stopped there, it is not perceived that there could be any doubt that it was a mortgage ; a construction confirmed by the fact that the slaves were retained in the possession of the mortgagor, and that the money was to be repaid with interest.

The deed, however, proceeds with a further provision, that if Green fails to pay the 393 dollars 89 cents at Christmas, he obliges himself, upon Moss’s paying him the further sum of 206 dollars 11 cents, (to make the sum of 600 dollars, the consideration value of the said negroes,) to deliver the negroes to Moss, and make him a complete title for them. Does this clause convert what was before a mortgage into a conditional sale ? I think not. It is well settled that no restraints will be permitted on the equity of redemption, since, if permitted, they would be perpetually extorted from the necessities of the borrower. And hence a court of equity allows validity to no agreement, made at the time of the mortgage, that in case the money be not repaid, and a further sum be advanced, the conveyance shall be absolute. Thus in the case of Willett v. Winnell, 1 Vern. 488, A. mortgaged lands for securing the payment of £200. to B. with the usual provisions to be void upon payment at the day ; and it was agreed that if the £200. was not duly paid, then B. was to pay A. a further sum of £7?>. in full for the purchase of the premises. The transaction was held to be a mortgage, and the heir of A. was permitted to redeem upon repayment of the two sums of ,¿'200. and ,¿'78. the last of which had been paid by the creditor to the administrator of A. This case seems to me to be full to the point, and it has never in any subsequent case been questioned, but on the contrary is referred to by the best ^elementary writers and abridgments, as establishing the principle that no agreement made at the date of the mortgage, for the purchase of the property on failure of payment, shall be held to operate an extinguishment of the equity of redemption. 5 Bac. Abr. 6 ; 1 Eq. Ca. Abr. 313, pl. 14.

It is objected indeed that here there is no covenant for repayment of the money, and lord Hardwicke and other judges, it is said, have always considered the want of it as a circumstance of some weight. But all admit that it is not conclusive. This is very strikingly evinced in Lawley v. Hooper, 3 Atk. 278, 280, where lord Hardwicke himself says : “ It is objected that this is not to be considered as a mortgage, because there is no covenant in the deed to repay the money; but that objection is not well founded, for it is not necessary.” See also Conway’s ex’ors v. Alexander, 7 Cranch 218; Mellor v. Lees, 2 Atk. 494 ; Goodman v. Grierson, 2 Ball & Beatty 278. It seems indeed wonderful that a covenant should be considered so important ; for without it. the mortgagee has full remedy for his debt, even if the mortgaged subject were to be destroyed. For, as was justly said in King v. King, 3 P. Wms. 358, every mortgage, although there be no covenant nor bond to pay the money, implies a loan, and every loan a debt ; as in the case of the mortgage of a ship at sea — though she was taken, and thus lost to the parties, the executor of the mortgagor was decreed to pay the debt secured by the mortgage. So as to welsh mortgages, which never contain a covenant for repayment. Howel v. Price, 1 P. Wms. 291. So in Ross v. Norvell, 1 Wash. 14, there was no covenant for repayment. So in Robertson v. Campbell & Wheeler, 2 Call 421, there was no such covenant. So in King v. Newman, 2 Munf. 40. And so indeed must it be, of necessity, in every case of an absolute sale in form, though, as we well know, many of them have, upon evidence of the trust, been converted into mortgages. *In opposition to this very equivocal fact of the want of a covenant for repayment, we have in this ■ case some of the strong-est indications of a mortgage. The first of these is, that the debt and interest upon it are both to be repaid; and as a stipulation for repayment without interest has been considered as evidence that money advanced is purchase money, and not a loan, (1 Call 280,) so the converse seems equally true, that the insisting upon interest is evidence of a loan, and not a purchase. Secondly, the slaves were left in the possession of Green the original owner; which, as judge Pendleton remarks in Ross v. Norvell, is contrary to the ordinary effect of a sale. On the other hand, it is with equal truth said by the chief justice, that such retention of possession is of the very nature of a mortgage. This fact, therefore, furnishes the most unequivocal negation of the transaction having been a sale. Considering as a sale, indeed, it would have been void, (for want of delivery of possession,) as to creditors and purchasers. It would be held, as to them, fraudxilent per se ; but if it be a mortgage, it is valid and unassailable. Now, where one construction of a transaction makes it fraudulent, and another makes it legal, the court should surely incline towards the latter.

It may be remarked, however, that in no view of this transaction is it a sale. At most it is but a contract to sell upon certain events and on certain terms, at a future day ; both parties having, I think, the locus paenitentias. It is to my mind very clear that Moss at least was not bound to take the slaves. The obligation is on the part of Green alone. He signs the instrument ; Moss does not. The words are his, not Moss’s. They oblige him, if he does not repay the sum advanced, to convey the slaves to Moss upon his paying him 206 dollars 11 cents more. This would not have amounted to an obligation on the part of Moss to take the slaves, even though he had been party to the deed, and had ^sealed and executed it. For the words would leave an option with him to pay the additional sum or not, at his pleasure. 2 Bac. Abr. Cov’t A. p. 64 ; Drummond’s adm’rs v. Richards, 2 Munf. 337 ; Suffield v. Baskervill, 2 Mod. 36. And certain it is that if the negroes had died, he would not have completed the purchase unless he was obliged. It would be more reasonable to consider this a mortgage, in which the parties would stand on equal terms, than to hold it a conditional sale, in which Green would be absolutely bound if he could not raise the money, and Moss would be bound or not, at his pleasure ; for the rule is that both parties should be bound, or neither. If the instrument were not under seal, this would be undoubted. Cooke v. Oxley, 3 Term Rep. 653. Whether it is equally true in the case of a sealed instrument, may perhaps be questionable; but if not, yet there is a gross inequality in the contract, considered as a sale, which should lead us to reject that interpretation of it: for if the slaves had died, Moss would have insisted on the return of the money as a loan ; as they lived, he insists upon the transaction as a purchaser. Green, though looked upon as a vendor, is compelled to take the hazards of a mortgagor, without his rights. He is the insurer of the lives of the slaves, though they are the property of Moss if he does not pay the money in the short period of six or eight weeks, in such a construction of the contract I cannot concur.

It is said, indeed, that Moss absolutely refused to lend his money, and would agree to nothing but a purchase. It is very clear that Green’s object, at least, was to borrow. He did not wish to part with the slaves, as appears from the provision for redemption. And as to Moss’s refusing' a loan, it is but a common contrivance for extortion and the extinction of the equity of redemption. But in these cases, as in cases of usury, these covers for fraudulent designs are little respected *by courts of equity. In Hawley v. Hooper, 3 Atk. 278, the case was thus. Hawley, an indiscreet youngman, having an annuity for life of ^200. per annum, and having no means of delivering himself from jail except by disposing of the whole or some part of it, sold to one Davenant, by indenture, ^150. per annum for ^1050. Irr the deed there was a proviso, that if Hawley at any time should desire to purchase back the part of the annuity assigned, and would give Davenant six months notice, and at the expiration of the notice repay the ^1050. then Davenant would reassign. This was decided to be a mortgage ; lord Hardwiclre saying, “I think there is strong foundation to consider this a loan of money, and I really believe in my conscience that ninety-nine in a hundred of these bargains are nothing but loans, turned into this shape to avoid the statutes of usury” — or, I will add, to extinguish a power of redemption. So in this case, though Moss disavowed a willingness to lend, what was the transaction in effect but a loan, if Green had repaid the money, with interest (for which the deed provided) ? or if, the slaves having died, Moss had refused to pay the 206 -dollars 11 cents, and sued for the money which he had advanced ?

With these views, and without adverting to the parol evidence, (as the appellant has avowed that the deed discloses the real character of the transaction, and does not seek to impeach it on the ground of fraud, ignorance or mistake,) I am very clearly of opinion that the decree is right upon the merits, and that the appellee was entitled to redeem. I have, however, examined the evidence very carefully, and am satisfied that it ought to make no difference in the result. The distinctions between conditional sales and mortgages are so nice, that I am but little inclined to look to the opinions or to the loose language of witnesses to decide the question. In the case before cited, lord Hardwicke observes, “The ^proviso uses the word repurchase; but there is very little difference in reality between the meaning of the words repurchase and redemption. One of the witnesses uses the word redemption; an& I take the word purchase, used in all the other depositions, to be only a cant word, meaning a sale or a mortgage ; and the indorsement shews they were used promiscuously.” Where to common understandings the shades of difference between terms are- so slight, it is hazarding too much to trust to the testimony of individuals not versed in such nice discriminations, instead of resting upon the written and unquestioned evidence of the contract of the parties.

There are some other questions of detail, and perhaps some irregularities and errors in the manner in which the court has carried out its principles, which I shall not examine, as the direction to be given to the case by the opinions of my brethren will render it unnecessary.

Decree reversed with costs. And this court proceeding &c. it is further decreed and ordered that the appellant do pay unto the appellee the sum of 206 dollars 11 cents, with interest at the rate of six per centum per annum from the 25th of December 1819 till payment. _  