An absolute convey ance upon the face of it, but subject by a verbal agreement to redemption os re-payment of money, is in Equity a mortgage, notwithstanding it be added to the verbal agreement that the conveyance shall be absolute in case of failure on the very day, or to pay with his own money, or the like ; or in case of failure to comply with any other condition added to render the right of redemption more difficult or doubtful; the answer confesses enough for •us to say it is a mortgage — but as the defendant’s counsel insists upon having the concents proved as the mortgage is lost, we will bear such proof. — Proofs were examined and established it to ’be a mortgage, and the court decreed a redemption.
Anonymous, 3 N.C. 26, 2 Hayw. 26 (1797)
Nov. 1797
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North Carolina Superior Court
3 N.C. 26, 2 Hayw. 26
Anonymous.
npHE bill stated, that the plaintiff’s testator borrowed of the -■*- defendant a sum of money, and gave an absolute bill oí sale for several negroes to the defendant, who engaged verbally to return the negroes on the re-payment of the money borrowed, with interest; the answer admitted the anvancement of the money, an'd stated the-biirof sale to be absolute, and.the negroes to have buen purchased ; and that he had promised the plaintiff’s "testator, that if within twelve months or two years.afterwards, he would repay the money, that he the defendant would re-deliver the negroes 5 but if he failed to pay principal and interest on the first day prefixed, h’e should not redeem on the second day prefixed, but by another sum in- addition lu the principal; and that if he failed at both days, the purchase was to be no longer subject to any redemption.