Colvard v. Waugh, 56 N.C. 335, 3 Jones Eq. 335 (1857)

Aug. 1857 · Supreme Court of North Carolina

56 N.C. 335, 3 Jones Eq. 335

PEYTON COLVARD against JOHN WAUGH, Executor.

To convert an absolute conveyance into a security for money, there must be facts and circumstances dehors the deed, showing that it was so intended, and proof of the declaration of the parties alone will not be sufficient.

Where there was an indefinite time, within which the mortgagor was to redeem a slave, which was left in his possession, under a special agreement, the statute of 1830 begins to run from the time the mortgagee gets possession of the slave.

Cause removed from the Court of Equity of "Wilkes county.

The plaintiff alleges that, in 1845, being greatly in want of money, there being several executions in tbe bands of the sheriff of Wilkes county, which had been levied on a valuable slave, Wesley, he applied to the defendant’s intestate, Wm. P. Waugh, to befriend him with a loan of money, to wit, $500, and that he agreed to do so; that they were in the act of counting the money, when the sheriff informed them that he would not release the hoy Wesley, unless $600 was paid to him, for that was the amount of the executions in his hands; that thereupon a different arrangement was made, when it was agreed that Waugh should bid off the boy Wesley, and should hold him as security for the money he should have to pay for him at the sheriff’s sale ; that "Waugh, the intestate, did bid off the said slave, and took the sheriff’s bill of sale for same at $530 ; that a part of the agreement was, that the services of the boy Wesley should go for the interest of the money. The said slave went back into the possession of the said Colvard after the sale, and remained with him for about two years, when he was claimed by Waugh to work for the interest as stipulated in the agreement, and that he was then accordingly surrendered, and remained in defendant’s possession until the year 1855, when this bill was filed; that plaintiff was not able to redeem the said boy before that time. The prayer is to have the transaction declared a mortgage, and that plaintiff may have an account of the services, and that he may be relieved from the usurious contract to give the services of Wesley for the interest of the money.

The defendant answered, denying the trust; and by way of explaining the fact that the slave went back into the plaintiff’s possession, he set forth a written contract of hire, whereby it was agreed that the boy Wesley should remain with the plaintiff at a given hire.

There was replication to the answer, and proofs taken, and the canse being set down for hearing, was sent to this Court.

Boyden, Jones and Neal, for the plaintiff.

Mitchell, for the defendant.

Nash, C. J".

The hill is filed to convert a deed, absolute on its face, into a mortgage, upon the ground that it was intended by the parties to be a security for money loaned. The plaintiff alleges that several executions were in the hands of the sheriff against him, and levied by him on a negro hoy named Wesley; that on the day of sale he applied to Wm. P, Waugh, the testator of the defendant, to lend him the amount needed, to wit, $500, which he agreed to do, and while he was in the act of counting out the money, the sheriff informed the parties that the money to he raised amounted to six hundred dollars, when the counting was stopped, and a new arrangement entered into, whereby it was agreed that the sale should proceed, the testator should purchase the negro, take the bill of sale to himself, and hold the slave as security for the money advanced ; all of which was done. The answer filed by the defendant, "Waugh, the executor, does not admit the alleged fact of the agreement of the parties to treat the deed as a security for the money advanced, but insists that his testator always held and claimed the boy as his absolute property. The deed from the sheriff to W. P. Waugh is absolute upon its face. To convert such 'a deed into a security for money lent, it must be shown by facts and eireumslances dehors the deed, that such was the fact, and those facts and circumstances must be such as, to the apprehension of men versed in business, and judicial minds, are incompatible with the idea of an absolute purchase, and leave no fair doubt that a security only was intended. But parol evidence by itself that, at the time of its execution, it was agreed it should be a mortgage, will not answer. Blackwell v. Overby, 6 Ire. Eq. 38. The only fact, or the material fact relied on here by the plaintiff, is that he remained two years in possession of the slave Wesley. This, however, is explained by the answer. It alleges that it was agreed subsequently to the sale, that Wesley should remain in his possession for two years at a stipulated price per annum, for which he gave his notes.

The allegation in the bill, then, that the bill of sale was taken as security for the.money alleged to be lent, is not sustained by such testimony as authorises this Court to declare such to have been the fact; more particularly as the bill states a change in the first agreement, and the sale of the negro under the second.

If, however, the proofs were such as to authorise the Court to make such a declaration, there is another objection fatal to the plaintiff’s claim. He has come too late to ask the aid of the Court. The contract was made in 1845, and the bill was filed in_1855 — ten years after. The delay of two years is explained by the agreed possession of the plaintiff for two years. In 1847, Wm. P. Waugli took possession, making the delayed time eight years. This delay was unreasonable. If the plaintiff could lie by that length of time, he might lie by any length of time at his pleasure, according to the maxim in equity, once a mortgage always a mortgage, a maxim which in its operation as applied to female slaves, has often been attended with disastrous consequences to mortgagees. To correct the grievance, an act was passed by the Legislature at its session in 1830, limiting the time to two years, within which equities of redemptions may be enforced. See Rev. Stat. ch. G5. By the 19th section, it is provided that, “when a mortgagee remains in possession of personal property for the space of two years after the time of performance specified in the agreement, or when the mortgagee shall omit, for that space of time, after the forfeiture of the mortgage, to file his bill to redeem such mortgage, he shall be forever barred of all claim in equity to such property.? The first case arising under this act was Bailey v. Carter, 7 Ire. Eq. 282, where it was enforced. This was followed by Kea v. Council, 2 Jones’ Eq. Rep. 315. In this case, the plaintiff’s right to redeem, arose as soon as the mortgagee took possession of the negro in 1817, there being no particular time set when the money was to be repaid. The plaintiff comes too late to ask the aid of this Court.

Per Curiam, Bill dismissed.