John R. Mason v. John M. Moody et al., 26 Miss. 184

Mr. Chief-Justice Smith delivered the opinion of the court. The material question in this case is whether a bill of sale, absolute upon its face, by which the appellant conveyed to the defendant Moody certain slaves, is to be treated as a mortgage, or held to be an absolute sale. It appears from the proofs in the cause, that Moody held the joint bond of the appellant, and the defendant, Lavender Wilkins, for $3,650. At the same time, Wilkins, who was the principal in the bond, held the note of Moody for $2,750, upon which several payments had been made, reducing the amount due upon it to $1,192.94.

Wilkins had assigned this note to a citizen of Alabama, who caused an attachment to be issued upon the note, which was levied upon the slaves, afterwards conveyed to Moody. The attachment was issued and levied in Washington county, Alabama, whither Mason and Moody went at the same time; the latter to see Wilkins, in reference to the payment of his bond, and the former to extricate his slaves from the attachment. Whilst there, it was agreed between Moody, Mason, and Wilkins, that Moody should purchase the slaves from Mason.

This was done, and the price agreed on was the balance due on Mason’s note to Wilkins, and, by the agreement of all the parties, the payment was to be made by giving credit, for the amount of the price, upon the bond of Wilkins and Mason. This was accordingly done, and Moody received from the latter the bill of sale under consideration. At the same time, however, and before separation, Moody agreed in writing, that Mason should have the privilege of repurchasing the slaves at the same price at which he had sold them. The agreement was voluntary and without consideration.

No offer to repurchase the property was ever made by Mason. The period fixed for the repurchase or redemption, had expired before the filing of the bill, and no offer is made in the bill to bring the money into court. It appears to ns evident, that, under this state of facts, the transaction should not be held to constitute a mortgage, but an unconditional sale. No precise form of words is necessary to constitute a mortgage; and, generally, all contracts for the security of money, by the conveyance of real or personal property, will, in equity, be holden as such. 7 Johns. Ch. R. 40.

A deed absolute upon its face, will be holden as a mortgage, if such appear to be the clear and certain intention of the parties. 4 Kent’s Com. 142. And such intention may be shown by an agreement in a separate instrument, contemporaneously or subsequently executed. 4 Kent’s Com. 141; Clark v. Henry, 2 Cow. R. 324; 12 S. & M. R. 306; 13 Ib. 440.

But in the case before us, even if it were conceded that the promise in writing, by the terms of which Mason was to have the privilege of repurchasing the slaves, was obligatory upon Moody, we would not be warranted in holding that the sale was conditional, or that it constituted a mortgage, as the proofs distinctly show that the transfer of the slaves was not made for the purpose of securing the payment of money, but an absolute sale in payment of a preexisting debt. Let the decree be affirmed.