#### WILIE GAITHER vs. ELIJAH TEAGUE.

The following instrument was signed, sealed and delivered. “Know all men by these presents, that I, Edward Teague, have this day bargained for a sorrel filly with W. Gaither, which filly I want to stand as security until I pay him for her. I also promise to take good care of her. Witness my hand and seal, this 5th of October, 1838.” *Held,*that, upon the faca of the paper, it was doubtful, whether it was intended as a mortgage or a conditional sale, and that it upas properly left to the jury to determine its character from the accompanying circumstances.

Appeal from the Superior Court of Law of Caldwell County, at the Spring Term, 1847, his Honor Judge Settle presiding.

*463This was trover for a filly, and the plea, not guilty. It was admitted on the trial, that the filly had formerly belonged to the plaintiff; and the controversy turned upon the question, whether he had sold her and parted from the title to one Edward Teague and ,then taken a mortgage of the filly from the said Edward, or whether he had made only a conditional sale to Teague, keeping the title in himself. To support the issue on his part, the plaintiff gave in evidence an instrument in the following words:

“Know all men by these presents, that I, Edward Teague, have this day bargained for a sorrel filly with W. Gaither ; which filly I want to stand as security until I pay him for her. I also promise to take good care of her. Witness my hand and seal, this 5th of October, 1836. Edward Teague, (Seal.)”

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The plaintiff further gave evidence, that the price agreed on for the filly was $30, and that Teague then gave him his bond therefor, and that the same still remains unpaid.

The plaintiff further to support the issue on his part, called as a witness one W. B. Nicholls, who is the subscribing witness to the said instrument and bond ; and he deposed, that they were executed, at. the same time, and before the filly was delivered by Gaither to Teague, and that Gaither required Teague to give him the said instruments, before he would let him have the filly, and that, immediately after receiving them, he delivered the filly to Teague, who then had her shod 'at Gaither’s shop and took her home. ’ The plaintiff further gave evidence, that, on the 5th of October, 1836, all the property of Edward Teague was levied on by constables on executions against him, when he got home; and that he then said, and, also, frequently afterwards, that Gaither held the property in the filly, until she should be paid for. The plaintiff further gave evidence, that the present defendant, Elijah Teague, some months after the contract, *464informed the plaintiff that he had traded with Edward Teague for the filly, and was to pay the bond to the plaintiff, and that, afterwards, the defendant had the filly and sold her as his own property.

The defendant on his part, then offered the evidence of Edward Teague, who deposed, that he bargained for the filly absolutely with the plaintiff, and gave his .bond for the price, and that she was delivered to him; that *he*had her shod at Gaither’s shop, aiid, after that was done, he requested Gaither to take a lien on her, stating to him, that there were debts against him, for which she might, otherwise, be sold ; and that Gaither replied, that he did not want it, himself, to secure the money, but that, to accommodate him, Teague, he would take the lien; and that, thereupon, the written instrument before set forth was executed and given to Gaither, who told the witness, that he might dispose of the filly, as he pleased; and that, five or six months afterwards, he did sell her to the defendant for f 40, of whieh the defendant paid him $10, and the remaining $30 he agreed to pay in discharge of the bond to the plaintiff for the price of the mare. He further deposed, that, afterwards, it was agreed between the witness, the plaintiff, and the defendant, that the defendant should pay the $30 on other debts, which the witness owed the plaintiff, and he did so.

The defendant, further to support the issue on his part, called several witnesses, who, or some of them, deposed, that the plaintiff had said, that he kept a mortgage on the filly at Teague’s request, to keep off the constables, and that the witness, Nicholls, had said, that, after, the trade was finished, Teague requested Gaither to take a lien, to keep off the officers; that the defendant delivered to the plaintiff 470 pounds of iron at 6 1-4 cents per lb. and requested it to be applied to the debt for the filly and offered to pay the residue in money ; but that the plaintiff wished to credit the payment on a note given by the two Teagues, to one Austin, that was payable in iron, *465and then belonged to the plaintiff, and that the defendant agreed thereto, saying that he did not care on which debt the credit was entered, as he had to. pay but $30 for his brother.

The plaintiff then gave -evidence, that, a short time before the iron was delivered, the defendant asked the plaintiff, if he would receive iron for the filly debt, and the plaintiff told him, he would not, as that debt was payable in money ; but that he would receive it on the Austin note, which had been given by* both the Teagues and was payable in iron *i*and that when the defendant afterwards brought the iron, he again-asked the plaintiff to apply it to the filly debt, but the plaintiff replied as before, and* thereupon the defendant applied it to the Austin debt, saying that it was immaterial, as he was bound for both debts and expected to pay them ,- and the defendant took up the Austin note.

It was, therefore, insisted by the counsel for the defendant, that the instrument, taken from Edward Teague by the plaintiff, was a mortgage, and that it was void, for want of registration, as against the defendant, a purchaser; and also, that if, in law, the contract were held to be a conditional sale, the condition had been performed by the payment of the iron ; and, also, that the plaintiff had abandoned his title, by consenting to the sale to the defendantand the counsel moved the Court so to instruct the jury. The counsel for the defendant moved the Court also to direct the jury, that, if they believed the testimony of Edward Teague, they should find for the defendant-

The Court charged the jury, that the instrument could not be held to be a mortgage upon its face merely; but that, if they should believe, that the plaintiff transferred the property in the filly to Edward Teague, and that they afterwards came to an agreement to secure the plaintiff in the price and for that purpose made this instrument, then they ought to regard it in the light of: a mortgage *466and it would be void as against the defendant. The Court further instructed the jury, if they believed the plaintiff abandoned or relinquished his title, by consenting to the sale to the defendant, or allowing Edward Teague to dispose of the filly as he pleased; or, if they believed that the plaintiff and Edward Teague, at the time of the contract, intended to deceive or defraud Edward Teague’s creditors, or purchasers from him; or if they believed the evidence of Edward Teague; or, if they believed the plaintiff had received payment for the price of the filly in iron or otherwise, that then they ought, to find for thedefendaut.

Prom a verdict and judgment for the plaintiff, the defendant appealed.

*Gaither,*for the plaintiff.

*Guión,*for the defendant.

Ruffin, C. J.

The presiding Judge gave every instruction the defendant’s counsel asked for, (and even went beyond the prayer in some respects,) excepting only in not holding, that the instrument, given in evidence by the plaintiff, was a mortgage. Under the circumstances of the case, this Court is of opinion, that his Honor was right in so holding, and in leaving it to the jury to determine its character, as they might find the facts, whether it was given at 1he instance of the plaintiff or Teague, or before or after the sale had been completed by a contract and delivery. Upon its face the instrument is equivocal. It is not, indeed, a paper, given by the seller to the buyer, and purporting in itself to be a sale on certain conditions ; as the'defendant’s counsel says it ought naturally to have been, if that was the nature of the contract. But, although the paper comes from the other side, and might, therefore, raise a presumption, that the title had before vested in Teague, and that the purpose was to give a security from him for the price, yet that consequence does *467not necessarily follow, either from the terms of the in. strument, or the reasons on which it may have been given. It has no terms of conveyance from Teague, as the existing owner, to the creditor, as a mortgage ought. It only says, that Teague had “bargained” for a sorrell filly with Gaither, which may mean an executory, as well as an executed, contract of purchase; and, in common parlance, the word is most commonly and properly used in the former sense. Then, there follows the covenant, that Teague will take good care of the filly, which is most unusual and inappropriate in a mortgage, properly speaking. And when it is asked, why the paper is taken from Teague, instead of being given by the vendor, the answer at once suggests itself, that, from the nature of the article, the title would apparently vest in the vendee by the contract or delivery, and, therefore, that no instrument, made by the vendor only and delivered^ to the vendee, would be available to the former to shew the terms of the contract; but that, in brder to shew that, it was necessary that the instrument should be given by Teague, saying that the title did not then vest in him, notwithstanding his bargain and possession, but remained with Gaither, until he should be paid the purchase money. According to the terms of the instrument and the nature of the property, therefore, it seems to'the Court, that, though dubious, it should be held, that it was intended, rather as evidence of a conditional sale, than to constitute a mortgage. Under those circumstances, it aids very materially in ascertaining its character, when the period at which it was given and the declared purpose of giving it are known. If it were true, that it was given, after an absolute sale and delivery by the plaintiff to Teague, and at the suggestion of the latter, as stated by him, it could be nothing elsfe but a mortgage or a security in the nature of one ; and the equivocal language would have a meaning impressed on it, which could not be mistaken. But, upon that point, the testimony of that person and *468that of the subscribing witness were irreconcileably at issue; and the Court left their credit to the-jury, and they found that Teague’s account was not true and-that of the other was. That renders it as plain on the other side, that the instrument was not intended as a mortgage, because it was given by Teague before any property in the filly vested or could have vested in him, and, consequently, that it was not a conveyance from him, but a declaration, simply, of the terms,, on which his purchase was to become absolute.

Per Curiam, Judgment affirmed.