Citation Numbers: 40 Tenn. 655
Judges: Wright
Filed Date: 12/15/1859
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the Court.
The complainant filed this bill, on the 10th of August, 1858, to recover of Toney the said slaves, upon paying him the $310.00 and interest. He does not question the regularity or legality of the decree, or sale under it; nor does he distinctly state that the purchase made by Toney was intended as a mortgage. The ground of recovery stated is, that previous to the filing of the bill by Toney, and while the same was pending, and before his purchase of the share of complainant, he agreed with complainant that he would purchase in said share, and that complainant might, at any time, have it back, by paying to him the purchase money and interest; that there was no time fixed for the payment; and that, because of this agreement, he did not defend the suit; that Toney has ever since recognized his right to have the
The defendant, Toney, in his answer denies, positively, any such agreement, either prior to the filing of the till, during its pendancy, or before the sale and purchase by him,; but admits that after he had made the purchase, and before he left the place of sale, complainant, his mother, and brother, who were present and were his friends, being distressed at the loss of the share by complainant, he did agree that if complainant would repay him the purchase money and interest, and any debts he might owe him, he should have the share back ; that this was merely gratuitous and done of kind feelings to the family, and in no way binding on him ; but which he was willing, and offered repeatedly, to carry out; that though no time was fixed for the payment, yet be did not expect complainant to delay it fifteen years; that having fallen in debt to him in the sum of $200.00, for a horse, complainant had ungratefully refused to pay this debt, and had, in other respects, annoyed him until he felt justified to insist, as he did, upon his absolute title to said share.
The Chancellor refused the complainant any relief. In this opinion we concur. It is not to be questioned that, at a clerk and master’s sale to pay debts, the relation oí mortgagor and mortgagee may be created by an arrangement at the time of the sale, or anterior thereto, that the creditor should become purchaser and hold the property as security for the debt. And at the same time, the right of re-purchase, instead of the mortgage, if the parties so intend, may be retained, by stipulation. But to establish either the one or the other, by parol evidence, as is attempted here, in the face of the decree and absolute purchase by Toney, it has always been held that the proof must be cogent and clear. Lane v. Dickerson, 10 Yer., 373-6; Loyd v. Currin, 3 Hum., 462-4. Here the proof, to our mind, entirely fails to make out any
The decree of the chancellor will be affirmed.