Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-16

~ oFFIcIAL.
OpiuiOns OF the Supreme Csurt Of the
state OF Tennessee, az Jackson, april
Term, 1882
Ford Murphy.
On the 2Sd of December, 1913, Ford made bill
of sale absOiate upon its face to Murphy. of two
slaves Ann and Betsy at the price of $3.50 co. And
on the 18th day of March, 1919 he also made to him
another bill of SALE absolute upon its face for three
slaves, Matilda and her two children, Serina and
Martha, at the recited consideration of S775
/ This bill filed on the 18th day OF Nav. 1856
alleging that these bills of sale, though absolute on
their face, only intended as mortgages and to
have them so declared.
The bill is not sworn IN and falls under that
class where no oath was necessary or proper.
The answer denies. positively and internationally
that these bills of sale were intended as MORTGAGES
and AYERS they are, what they eurport to be- abso-
lutte sales, save that Matilda and her two children
were, in fact, an exchange for a woman Martha and
her son Tom, and the sum of $50 given 20 boot
Proof has been taken on both sides: and the
Chancellor, after hearing argument upon the case
and advising upon itfor twelve months pronounced
a decree dismissing the compliments bill he i, the
opinion of the Chancellor, being entitled to no relief
We have examined TINS record with care to see if
could find any ground upon which to reverse
this decree, and have been unable to find any,
The rule laid down, Lane vs. Dickersun. 10 Yer
1873, and well settled in repeated decisions is that
convert absolute bills of sale into mortgages by
a pITOl agreement the proof of the Agreement =, n 4
be clear decisive and without doubt or otherwise
no would be safe in his title either to rea, or
personal estate.
1t is impossible for us to say that tie proof in the
record is of this character.
In the before mentioned case of Lane vs. Dicler-
the bill was dismissed yctwhen that case is ex
amined and compared with this. it will, we think
be found much stronger case in favor OF the exis-
tence of mortgage than this.
We should have been better satisfied if Stephen
Wood and Polk, the desiaRJ citaeSSeS these bills
of sale had been examined Their account OF these
transactions might have proved more reliable than
the loose and unsatisfactory statement of the recol-
lection of what witnesses heard the parties say, to
be found in this record.
1t is true HUI, another attesting Witness is eX-
amined; but he seems to know nothing of any value
IN the case.
The only witness upon whose evidence mortgage
can be claimed is, John W. Bowers but if his testi-
mony were positive and free from confusion it is
not, it cOudnot without corroboraton overturn the
strong denials of the answer. But his testimony
must be referred to March, 1919, when Matilda and
children exchanged for Martha and Tom, and
not to the sale of Ann and Betsey in December,
1913; and complainant himself told Charles Agmens,
that the mortgage he claimed was made when ne
conveyed Matilda and children, and he refers to the
witnesses. BUTT is exceedingly difficult to
how mortgage can be pFedicated on this last trans
action as it is shown IN this record it being mere
exchange of slaves 1t is true Martha and Tom were
conveyed by defendant direct to Smith and charges
and boot received in exchange by complainant; but
have been unable to discover ill this any desire
to cover up a loan.
Defendant took possession of these slaves except
Betsey, and her possession with complainant, for
about two years is sufficiently accounted for,
painants wife being defendants neice, ard lending
his little girl for nurse. As to the price of the
slaves the proof is in conflict and not very full
satisfactory; but iradequacy appears. 1t is
shown that the defendant did not wish to buy these
slaves but desired that others should DO so.
The expressions proved by compliments witness
none of whom pretended to have been present at
these sales of defendants declarations, that com
piainants should have the slaves back upon paying
their price, and that he might redeem them, &c,
though they evince a friendly feeling towards com
plainant, amount to nothing IN the establishment OF
q mortgage. 10 Yer, 374.
We think then, that even upon compliments
proof, we should only be cropping our way too much
in the dark hold that either of these transactions
were intended as mortgages.
But his proof is materially weakened by the evil
dence of defendant. Harriet Compton present
at the exchange of Matilda and children, and from
her evidence it would seem mortgage was intend
ed and so also from the evidence of Pitser Miller,
Elizabeth Griggs and others.
1t is probable that in the earlier stages of these
transactions the defendant did intend to let the
painant have these slaves back; but he has delayed
so long and the slaves have increased in value and
numbers until defendants purpose has undergone
change. Such purpose, unless mortgage were
originally agreed between these parties can be of
no service to complainant even if shown enequivO-
cally to have existed Upon the whole we think
complainant has failed to establish any mortgage,
and we affirm the ChancellOrs decree
WRIGHT.
Test: NJ. D. WEIGH Clerk