#### JOSEPH MUNNERLIN *vs.*CHARLES BIRMINGHAM.

Where one took an absdute 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 menlion 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.

The plaintiff stated in his bill, which was filed in the Spring of 1835, that on the 12th of December, 1822, he borrowed of the defendant the sum of $400; and to secure the repayment thereof, executed a bill of sale, oí the same date, for a female slave, named Tener; and, at the same time, took from the defendant, on a separate paper, the following instrument, in writing: “on condition, a't January, 1823, that Mr. Joseph Munnerliu does come forward, and tender unto me, Charles Birmingham, four hundred dollars, lawful money of the State, I will give him a negro girl, by the name of Tener, seventeen years old. If failing to comply on that day, this shall no longer stand good against me. December 12th, 1822. Charles Birmingham.” The plaintiff insisted that the bill of sale, and the above mentioned written instrument, constituted a mortgage of the slave Tener, to secure the sum borrowed; and he thereupon prayed to be permitted to redeem the slave Tener, and her three children.

The defendant, in his answer, denied that he executed the instrument of writing set forth in the bill. He said that he purchased Tener for $400, that being a full and fair price, and took a bill of sale for her. He denied that there was a mortgage, or any intention to take the slave on mortgage to secure the repayment of the $400.

The plaintiff filed a replication to the answer, and the parties proceeded to take proofs.

*359
      *Winston*for the plaintiff.

*Mendenhall*for the defendant.

Daniel, Judge,

after stating the case as above, proceeded as follows: 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 surround 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 Te-ner for the sum of $400, if tlie plaintiff tendered that sum by the month of 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. *Vide Poindexter*v. *McCannon*& *Hauser.*1 Dev. Eq. Rep. 373.

We are of ihe opinion that the bill must be dismissed.

Per Curiam. Bill dismissed.