Stephen Hollingsworth, Appellant, vs. Wm. Handcock and Rigdon Brown, Appellees, 7 Fla. 338

Pearson, J., delivered the opinion of the Court. This cause comes up upon appeal from a decree of the Circuit Court for Hillsborough county, sitting in Chancery.

The object of the bill is to redeem a slave called Harriet, therein alleged to have been mortgaged to the defendant Handcock, and by him sold to the defendant Brown ; while the defence set up by the answers is, that the transaction between Hollingsworth and Handcock constituted a conditional sale of the slave; that the-instrument executed by Hollingsworth was not a security for money, and therefore not in the nature of a mortgage ; and that the complainant is estopped, by reason of his acquiescence in the sale from Handcock to Brown, from asserting any claim to the property against Brown.

These are the enquiries before us. They are questions of much difficulty, generally, and not without embarrassment in this particular case.We are materially aided, however, by the opinion on file of the Court below, wherein the legal questions are very fully and carefully considered in connection with the facts of this case. On the 22d October, 1845, Hollingsworth executed his bill of sale, in the usual form, to Hancock, for the slave Harriet.

This was written on one half of a sheet of paper, and on the other leaf of the same sheet there appeared a writing in the following words,- tó-wit: “ State of Florida, Hillsborough county.

The condition of the above bill of sale is such, that if the said Stephen Hollingsworth shall, within one year from the date thereof,pay to the said William Handcock the valuation of the said negro girl, viz: four hundred dollars, with interest at eight per cent., then the foregoing bill of sale to be void and of none effect, otherwise to remain in full force and virtue.” This defeasance, however formal in its terms, was not subscribed by either of the parties to the bill of sale, yet it is contended that the circumstances developed in the testimony show that it is a true exponent of the intention of the parties, in regard to the nature of their contract.

The allegations in the bill and answer are variant and contradictory in reference to the true intent and meaning of the engagements the parties entered into with each-other, and we are left therefore to seek in the facts and circumstances of the case their true purpose and legal effects. It is very obvious that the true question for our consideration is, whether this instrument and the agreement of the parties contemplated and were in fact a conditional sale.

In that event, the title in Handcock becomes absolute at the expiration of the period limited for the re-purchase, and consequently his sale to Brown conveyed a perfect title. Such is the principle laid down by Chancellor Kent in his Commentaries, 4 vol. p. 144. This able jurist further states, same vol. p. 142, that “in Equity the character of the conveyance is determined by the clear and certain intention of the parties,” and to ascertain this intention we are not confined tó an examination of the instrument itself, but may resort to other deeds, and extrinsic circumstances existing in parol. 1 Johns. Chy.

Rep. 594; 1 Day, 133. What then was the true intention of Hollingsworth and Handcock, at the time of the transfer of the girl Harriet to the latter? Conditional sales will be supported when they are clearly the purpose of the parties. Chief Justice Marshal, in Conway’s Executor and Devisees vs.

Alexander, 7 Cranch Rep. p. 218, says: “ to deny the power of two individuals, capable of governing themselves, to make such contracts, would be to transfer to the Court of Chancery, in a considerable degree, the guardianship of adults as well as of infants.” There seems to have been no previous negotiations between the parties, nor any loan or debt due, or mortgage spoken of to secure a previous debt. The connection of the parties commenced with the bill of sale from complainant to Handcock,. which is absolute and unconditional in its terms.

Whether the form or memoranda of the defeasance written on another page of the same sheet of paper? but not executed by the parties, is to be taken as a part of the instrument itself, is not very material, since it must be taken- for whatever it is worth in connection with other circumstances, in illustrating the intention of the parties. Nor does it vary substantially, from the parol testimony in the case, as to the condition upon which the property was transferred.

In considering the effect of the testimony, it should be remembered that the parties acted in the first instance without counsel, and the witnesses have spoken in plain, untechnical language, their knowledge of the transaction. It appears to us that the testimony of Simeon L. Sparkman, who, at the request of the parties, wrote both the bill of sale and the defeasance, and subscribed the first .as a witness, is such as to show that the latter contained the intention and purpose of the parties as a condition to the former.

He says that he “ did not know at that time that it was necessary for either of the parties to sign the condition, as it was only considered a condition of the sale” Nor does it appear that any objection was made by either party to the execution of this condition ; they rather seem to have supposed it unnecessary to give validity to the instrument. It was delivered with the bill of sale by complainant to Handcock, and transferred in his presence, without objection on his paid, by Handcock to Brown, at the time of the sale of the negro girl to him.

To a cross-interrogatory, Sparkman replies: “I did not say Stephen Hollingsworth gave a mortgage” but only the instrument with the condition, as previously described. And he further states his recollection of the condition to the bill of sale to be, that in the event complainant should within twelve months pay “ the purchase price55 of the negro girl, he should “have her back” The phrase used in the written condition is to “ pay to the said William Hand-cock the valuation of the said .negro girl,” etc.

Taking} then, the whole testimony of Sparkman in connection with the instruments which he drew, and the superior opportunities which he had to know the purpose and intention of the parties in the transaction,- it can hardly be doubted that a conditional sale was intended, with the privilege to “have her back” at the '“valuation ” or “purchase price ” within twelve months. It is manifest from Sparkman’s whole testimony, that he contemplated nothing but a sale with a condition, throughout. And this view of .the matter is corroborated by other facts and circumstances.

The transaction occurred at Tampa where the girl was not present, but in accordance with the legal effect of the bill of sale, she is very soon found in the possession of Handeoek. In case of a mortgage, the possession is usually retained by the mortgagor. But the complainant acquiesced in the possession of the ■vendee, and witnessed, without objection or complaint, his .sale of the girl to a third party long' after the period had .elapsed .at which he had .the privilege of getting her back by re-paying the purchase money.

He moreover sent his son to Handeoek to enquire whether he would permit him to refund the purchase money at a day subsequent to that fixed in the original agreement, .showing that he did not rely upon his right to redeem or re-purchase after that period; and Handeoek, acting upon the same conception of his rights, refused to do so after his .contemplated departure for Tallahassee. In further corroboration of this view of the subject, it ap. pears from the testimony of Thomas P.

Kennedy that Handbook paid the full value of the girl by settling some debts for which the comj>lainant was pressed, and paying the balance in cash. And it is argued with some show of reason that if a loan only had been contemploted, the complainant would have contented himself with a sum sufficient to relieve his necessities without exacting a further sum to cover the whole value of his property; and in like manner if Handeoek only contemplated a security for the money .advanced, it is suggested that he would have sought a further security to guard against the loss of that which was named.

But instead of such a course, he took no note or .other security for his money, and rested content with his bill of sale for the property. Kennedy also .states that complainant had .offered to sell or mortgage the negro girl for the sum of four hundred dollars, “ and if the money was not paid in one year it was then a T>onafide sale.” And in another place, after stating his knowledge of the sale to Handeoek and the sums advanced, he adds, “ if not paid in one year, the girl Harriet was Handcock’s property.” J. M.

Hayman, a witness examined by complainant to prove a tender of the sum advanced or paid by Handeoek for the negro girl, fixed the date of the supposed tender on the 22d December, 1851, more than five years after the original transfer of the property, and says, on the occasion of the assumed tender, Handeoek said to complainant, “ Is that according to our contract ?” which implied allegation it does not appear the complainant denied; and in his cross-examination he states that Handeoek two days previously stated in the presence of complainant the whole history of his purchase of the negro girl, with the condition that complainant should have her back within a year provided he refunded the money advanced — that no money was tendered him within the year, and that he had informed the complainant that unless the money was brought before his departure for Tallahassee, he would keep the negro — to no portion of which statement does it appear the complainant objected or excepted. .

To the acts and admissions of the complainant as thus narrated, and the great length of time which he has allowed to elapse without any assertion, of his claim, he gives no satisfactory explanation or reply. In Scott vs. Britton, 2 Yerger, 215, it was held that “ when a bill of sale is absolute on its face, it requires clear and satisfactory proof by parol to show that it was intended ,as a mortgage.” ¥e have no such proof in this case, and are therefore constrained to agree with the Court below in considering this a conditional sale, vesting, upon forfeiture of the condition, a perfect title in the purchaser.

There .are many analagous cases in the reports, the ay.-thority of which support the conclusion we have reached in this. Among them we refer to the case last quoted, and 5 Gill & John., 75; 2 Dev. & Bat., ch. 305 ; 7 Ala. Rep., 724; 5 Pike, 321; 4 B. Munroe, 496; 2 Bibb, 223; 7 Cranch, 218 ; 10 Leigh, 251. Whilst we are clear upon this point, there yet remains another to which great weight was deservedly attached by the Court below.

Handco'ek sold the girl Harriet to Brown in the year 1850, in the presence of Hollingsworth, who made no objection to the sale, and at the request of Brown and the witness, Joseph Howell, who drew the bill of sale on that occasion, stated her age. We have no difficulty in concluding that this conduct on the part of Hollingsworth, after some five years possession on the part of Handcock, presents serious difficulty in the way of his recovery. It was objected that this should have been specially pleaded as matter of estoppel in the manner prescribed in the 31st rule of Chancery practice.

But this ground of defence is fully stated and relied upon in the answer of Brown; and our statute (Thomp. Dig., 458, sec. 9,) expressly provides that the defendant may, in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter, or had_demurred to the bill.

The rule referred to, which we have adopted from the practice of the Hnited States Circuit Courts, prescribes nothing in regard to what matters of defence shall or shall not be specially pleaded, and is confined solely to the manner in which a plea or demurrer shall be filed. Brown, therefore, is entitled by the statute to the full benefit of the defence set up in his answer. This defence is well sustained by the testimony of Joseph Howell, and the principle of law involved has been well considered and settled by this Court in the case of John G. Camp vs. W. D. Moseley, et al., 2 Fla. Rep. p. 197.

This case, together ■with the authorities there cited, as well as others to which we have been referred, fully sustain the principle that “ a party who negligently and culpably stands by and allows another to contract, on the faith' of an understanding of a fact which he can contradict, cannot afterwards dispute' that fact in an action against the person whom he has assisted in deceiving,” as laid down by Lord Denman in Gregg vs. Wells, 10 Ad. & Ellis, 90. Many cases to the same effect are collected in Robertson’s Practice, 2 vol. p. 30, 31 and 255; and in 2 U. S. Eq.

Dig. p. 429 and 430; see also 2 Starkie on Ev. p. 26. The decree will therefore be affirmed with costs.