Where one took an absolute bill of sale for a slave, for whom he paid a full price, and at the same time gave to the seller, on a separate paper, an instrument promising that if the latter would, on some day in the ensuing month, "tender" to him the same price, he would "give" him the same slave, adding, "If failing to comply on that day, this shall no longer stand good against me"; and it did not appear that there was any mention then made of a mortgage, or that a loan was ever talked of, or contemplated, between the parties, or that the vendor set up any claim to the slave, either as mortgagor or in any other way, until ten years afterwards: It was held, that the transaction was never regarded by the parties as a mortgage, but only as an agreement for a resale, of which the vendor had lost the benefit by not complying with its terms.
DANIEL, J., after stating the case:
The proof is satisfactory to us that the defendant did execute the instrument of writing mentioned in the bill. But taking the bill of sale and the said instrument together, and all the circumstances which surrounded the case, and we are of the opinion that they do not constitute a mortgage. It seems to us that the instrument executed by the defendant is but an agreement for a resale of the slave Tener for $400, if the plaintiff tendered that sum by January, 1823. There is nothing mentioned of a mortgage or money borrowed in either the bill of sale or the paper-writing. There is no proof that the girl was worth more than the money advanced by the defendant. There is no covenant in the instruments, or out of them, for the repayment of the money to the defendant in case of the death of the slave, or any repayment; and there is no evidence that a loan was ever talked of or contemplated between the parties. The slave was immediately delivered to the defendant on the advancement of the money. And it was a long time (upwards of twelve years) which had elapsed without any mention by the plaintiff, until about two years before he filed his bill, that he had any claim to the slave, as mortgagor or in any other way. We are induced to think, from the whole case, that the plaintiff never considered the transaction a mortgage, but only as an agreement for a resale, which he had lost the benefit of by not complying with the terms of it in time. Poindexter v. McCannon, 16 N.C. 373.
We are of the opinion that the bill must be
PER CURIAM. Dismissed.
Approved: McLaurin v. Wright, 37 N.C. 97.
(360)