Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-20

condition lhsn they were; hat they seemed 70 hes
it8te, aud upon talking ire matter again, they
directed him 10 prepare the deed for bem-msking
an absolute sale, and fhat he accordiLgIv draw An
absolute deed This sll Oseurred Al ths same time
aud in the ofhce und presen Of the witness; and
on that day, or lay OF two Ihereafer The deed
was exe;uted-Wiihoal afythiEg more being said
so far as is shown ,his record
10 The year 1857, Mr. Wbilworth had various con,
versstioDs with lhs parties there seemed 10 be an
undersi sndiag 10 tie early part IF thar year Ihst
| Complainant wished ~ -sdesm the properly and
thar with that vieS he defendant was 10 prepare
statement Of the due, esleulatiUg IA inter
est at 10 per cent per anauul with sunua res.s or
ts subm!. the papers TO the winners % make up the
, account for then; aad they b0sh agreed that be
should do 80, sbd lhat they woul1 abide ty or set
| tie by his calculation
That accordingly the defendant did furnish a
rough siateToen Out Of which, together with such
! information ILe complainant furnished. the Wit
/ ness made statement in writing between them,
shos ng balance due defendant, lst OF January,
! 1857, Of SI2,0l4.26-
In this satsme1t iaterest was charged az the rate
of 10 per cent from the first Of January 1855 with
taxes, repairs aud insurance. aud complain ant was
/ credited by ihe rents.
This statement was made about the Ist Of May,
and the defendant agreed II complainant wonll pay
u2 By the LIST of July, 1886, he should have the
property back; aad complsiGsnt agreed TO Try and
do 50 and IaNe the property; and haslly asked de-
fendlDt TO take notes in payment, upon other par
tes a. disc sunt of 10 per cent, give further
time TO raise tho money, Shica defendant refused 10
Co.
Mr.. Whi'wJrth also proves hat be had repeated
conversations with cvmp iuant daring the progress
Of the ealcTistiS8, aad IhaI IN the beginning be
underGtood him. be toOS the ground that dsieEdant
not Legacy bound TO les him have the properly;
bat that he always thought he would, aud II dad
not, ne EOU DO Tigh.; but thai finally, as The
lst Of July preached, he became more earnest \
And Insisted ne oOund to let him redeem.
BlrUs, the Sheriff Of Davidson county, proves that
during the early part OF ths yesr 1852. aud before
be had repeated conversations with clmplaiuaut
and defendant together, and separs'ely. At one
lime Whel they both present IN the Circuit
Court Clerks Cice By appointments for toe purpose
Of paying the witness soGse money on Fl Fa. vs..
Woods, the subject Of Ihs sale OF tAe lot TO defend
aut was spoken Of, when complainant wss asked by
person present if he had sOd the Let. II said
yes. fer while. The defendant immediately re-
marked thai he was just going to help the boy out
Of troubles aud II he could not do something for
himself.
The defendant, afterwards, told Barns that he
wanted TO help, aud was helping complainant; that
he vas an industrious fellow but made bad trades
and the impression made on the Witness mind was
that tbs deed was to secure the defendant for the
money advanced complainant, and that be TO
receive the rents Of tae lot until he paid aud
then the property was 10 return 10 the CONF l4naat.
At the time Of the dead the lot taxed at -.
10000, GHd was then Of the value Sl4,O0O 90. Il
is Of the value Of near 10000 o.
Such are, in substance, the fads as they appear
in thisresord.
With these facts before US, we cannot hesitate to
pronounce the deed Of the 2jsh Of March, q mort>
gage There is not the least eTideDcs, except the /
mere form Of the deed itself, % support q sale
None MAS talked Of by the parties. anu nothing Of /
the kind. when lock to the extrems eVide4 ce,
seems to have been c1EtCm7 7lsted. Oa the contrary
the relation Of debtor aud creditor, and mOrtgager
aud mOrtgGgee already existed between these par
ties and the application, on he part Of the com
piainsut, was Tor q further Iona CT money, not TO
sell his lot.
He did not wish to sell, uordid The defendant wish
to buy. And it seems to paiR, that he sams re-
lation Of debtor and creditor was-eoutinued
Here, if a sale were inteadel, the consideration /
is grossly inadequate.
The absence OF a note or bond by the grant6r, to 4
repay the money has been held 10 furaish 10 clnclu
sive test, whether the conveyance was a mortgage
or a sale.
Nor 10 We attach much importance to the fasl,
that, at One time in 1884, complainant mel 70 be
under Inc belief, that the defendant hot legally
bouod to allow him 10 redeem; whether he said iris
because he supposed the form Of the deed ca, ude1
him. or because, If such were the fac, ke had al
lowed The tire Of dsmTt:on fixed beiaesn him
and def ndant 10 expire, we cAnuot well see
But certainly, If ne had The right to relsem a.
we think he had, his ignorance Of it affset
the right Itself.
We also think, that considering the previous re
latOps between these pariie', growing out Of The
loans and Of rust aud the nscss-
sitous condition of complainant. it might very ssad
ly be shown, under the suth6ririts, that if the
deed Of the 25th of March intendei as a pur-
chase of the equity Of redemption, it could be
allowed TO stand.
The doctrine, as applicable TO this case. is fully
examined ard decided in Russ II S9utsard sI al
II. HeEard's Rep s. c. L. s. l39.
Decree affirmed WRIGHF
A correct copy, ?. CLARK. Clerk