Chambers v. Hise, 22 N.C. 305, 2 Dev. & Bat. Eq. 305 (1839)

June 1839 · Supreme Court of North Carolina

22 N.C. 305, 2 Dev. & Bat. Eq. 305

JOSEPH CHAMBERS vs. JACOB HISE.

An instrument, purporting to be.an absolute bill of sale for slaves, with a condition annexed that if the vendee be not “ satisfied” with the slaves, or the slaves with him, the vendor may “ redeem them at any time” by paying the amount of the purchase money, “ or a negro girl to the satisfaction of the vendee,” is not, upon its face, a iportgage of the slaves.

The plaintiff alleged, in his bill, that in the year 1830¡ he obtained of the defendant, by the way of a loan, the sum of, $300; and that, to secure the repayment of it, he mortgaged to the defendant a negro woman by the name of Jane, and her child. The bill was filed in '1836, for the purpose of redeeming the mortgage. The defendant, in his answer, denied that the transaction was, in fact, or intended by the parties to be, a loan of money, and a mortgage of the said slaves to secare the repayment of it. He said it was a sale by the plaintiff, and a purchase by him, of the slaves; and that the condition annexed to the bill of sale was inserted for his, the defendant’s benefit, as the slaves were not present at the time, and not to make the instrument a security. The instrument was in the ordinary form of an absolute bill of sale, with the following condition annexed: “ The condition of this bill of sale is such, that if the said Jacob Hise is not satisfied with the said negroes, or, if the said negroes are not satisfied with the said Hise, then the said Chambers has privilege arid authority to redeem the said negroes, at any time that he shall pay, or cause to be paid, to the said Jacob Hise, thé three hundred dollars, or a negro girl to the satisfaction of the said Hise.”

D. F. Caldtoell for the defendant.

Danikl, Judge,

after stating the case as above, proceeded as follows: We have examined the instrument of writing, said by the plaintiff to be a mortgage, and upon its face we cannot hold it to be a mortgage. We have examined all the testimony offered, and that does not make it such. The deposition of the subscribing witness states, that the parties intended nothing more than what appears on the face of the instrument. According to him, therefore, there was neither fraud or mistake in the drawing of the deed. On a view of all the other testimony, we find nothing to shew that the “tranaction was a loan of money by the defendant, anda pledge of the slaves by the plaintiff to secure the re-payment of the money. The condition appears to have been inserted only for the benefit of the defendant, if he should not be satisfied with his purchase, on seeing the slaves; or if the negro woman should be unwilling to live with him. In either of the two events, the plaintiff agreed to re-purchase the slaves at the same price, in money, or to convey another negro girl in exchange. The defendant has never complained of his purchase; and we think the plaintiff has no right to complain, as the instrument is not, in our opinion, a mortgage.

The bill must be dismissed with costs.

Per Curiam. Bill dismissed.