#### JAMES D. NEWSOM vs. WILLIAM ROLES.

An absolute bill of sale foi slaves, accompanied with a parole contract between the parlies that the vendor might redeem or re-purchase the slaves by re-paying the same price, is not void as against the creditors of the veudor under the act of 1820, 1 Rev. Stat. ch. 37, sec. 23, or the 13th Eliz., 1 Rev. Stat. ch. 50, sec. 1, when it is admitted that the sale "was not, and was not intended to be, a mortgage, but was lonaJlde absolute, and for a fair price.

The case of Gregory v. Perkins, 4 Dev. Rep. 50, distinguished trom this and approved.

The plaintiff, Newsom, sued out an attachment against the defendant, Roles, and had it levied upon several slaves, as the property of Roles, but which were then in the possession of one Samuel Harris; whereupon Harris filed an interplea, in which he claimed the slaves as his own. An issue was thereupon made up between the said Harris and Newsom, the plaintiff, in the attachment, to try whether the said slaves were the property of the said Harris, the inter-pleader, or of the said Roles, the defendant in the attachment; which issue was tried at Franklin, on the last circuit, -before his honor Judge Nash.

On the part of Harris, a general power of attorney, from Roles to one John L. Terrell, dated the 1st Dec., 1838, was produced and proved; and it was also proved, that the said Harris, before the suing out of the attachment, to wit, on the 2nd of April, 1839, purchased the slaves in question of the said John L. Terrell, at the price of $1,225 — paid the purchase money, and the slaves were delived 1o him by Terrell, who, at the same time, executed and.delivered to him an absolute bill of sale, of that date, for the said slaves.— The plaintiff, Newsom, thereupon, called as a witness the said John L. Terrell, who deposed that Roles, being about to go to the south western country, to attend to affairs there, of importance to him, executed the power of attorney aforesaid, in order to make the witness his general agent, during his absence; that while he was so absent, the witness found the state of Roles’s affairs here, to be such, that a sale of his property might be necessary before his return, wrote to him *180to that effect, and was, in reply, directed by him, that if he t0 se^ these negroes, as they were favorite slaves, and he, Roles, expected so to arrange his affairs in the south west as t0 enable him to save the slaves, he, witness, should reserve a right to Roles, to redeem or re-purchase them. That afterwards, Harris, who was a surety of Roles to one Alston, in a bond for $1,000, applied to the witness as Roles’s agent, to do something for his security; and proposed to take bonds for that purpose. This being declined, Harris proposed to purchase the negroes in question, and the witness agreed to sell them to Harris at the price qf $1,225; that being the value of the negroes, as stated in a memorandum of Roles, and being, in the opinion of the witness, a full and fair price for them; that the price was paid as follows, to wit, $1,000 paid to discharge the bond to Alston — by discharge of $93:18 cts. due from Roles to Harris on a bond; and by the payment to the witness of the balance, to wit, $131:82 cts.; and the negroes were delivered, and the bill of sale executed, as before stated: that in the contract of sale between the witness and Harris, it was expressly agreed that Roles should have the privilege to redeem or re-purchase the slaves, if he chose, by repaying the same sum to Harris; that witness, without such reservation, would not have felt at liberty, under his instructions, to sell, and would not have sold, the said slaves to Harris. Being cross-examined, the witness further proved, that no mortgage was intended; that it was a sale of the negroes to Harris; that as soon as it was completed, the relation of debtor and creditor, or surely, ceased between Harris and Role?; that the negroes were entirely at Harris’s risk; that Roles was under no obligation to redeem or re-take the negroes; but that the sale was an absolute one, except the privilege to Roles, at his option, merely to repurchase the slaves.

The plaintiff, Newsom, also proved the debt on which his action was brought, and it was admitted that it was a debt fairly owing from the said Roles.

r The plaintiff’s counsel, admitting that the transaction aforesaid, between the said Harris and Terrell, was, in fact, baria fide, and was not, in law, a mortgage, nor designed as *181such, nevertheless insisted that, in law, the title to the said slaves did not pass to Harris as against the creditors of Roles, and that the jury ought to find the issue against Harris on his interplea; and thereupon a verdict was taken by consent for the plaintiff, Newsom, on the said issue, subject to the opinion of the court, upon the matters above stated, as a case reserved; and judgment t'o be entered upon the said interplea (notwithstanding the said verdict) according to the opinion of the court: and the court being of opinion thereupon for the plaintiff, Newsom, a judgment was rendered for him, and the interpleader, Harris, appealed.

Badger, for the interpleader,

Harris, contended that the Judge was misled by general expressions, in the case oí Gregory v. Perkins, 4 Dev. Rep. 50, and argued to shew that there was an essential difference between mortgages and conditional sales, Poindexter v. McCannon, 1 Dev. Eq. Rep. 373.

W. H. Haywood and Battle, for the plaintiff,

Newsom, relied upon the case of Gregory v. Perkins, and contented that the right to re-purchase the slaves was a valuable right in Roles, to the benefit of which his creditors" ought to be entitled; and that, as it was not inserted in the deed, so that it might be registered with it, the deed was void as against the creditors of Roles. They also referred to, and commented upon, the cases of Poindexter v. McCannon, ubi supra, and Munnerlin v. Birmingham, 2 Dev. &, Bat. Eq. Rep. 358.

Ruffin, Chief Justice.

There is no reason, we think, for impeaching the conveyance to Harris. He paid the full value of the slaves, not as a loan, but as the price upon a purchase, and took a deed and immediate possession. It is true, ther'e was a verbal agreement or understanding, that Roles, upon his return, might “ redeem or re-purchase.” But it does not follow, that before his return, a creditor might attach and sell the negroes. The plaintiff’s counsel admitted at the trial, that the transaction was bona fide, and was not a mortgage, nor intended to be so. It appears to us,-that those admissions are decisive against this action. Had there been *182reality a mortgage, with a parole proviso for redemption, ProPerty speaking, then, as that would have been in evasion oí the act of 1820, 1 Rey. Stat. ch. 37, sec 23, the deed Would have b.een void. Gregory v. Perkins, 4 Dev. 50.—But, as contradistinguished from a mortgage, this transaction has every feature of a sale and conveyance, accompanied by a parole agreement for a re-sale at the same full price, at the election of the first owner. Poindexter v. McCannon, 1 Dev. Eq. 373. Indeed, that follows from the admission, that a mortgage was not intended. The counsel for the plaintiff insists, however, that if the transaction be in its nature’a contract for the re-sale of the negroes, it is fraudulent and void as to the creditors, because , there is, as he says, a valuable interest in the debtor, not reserved openly in the deed, but resting in confidence between the parties. For these positions, the case of Gregory v. Perkins, is the authority.— But that case has in view, throughout, only those conveyances, which, whatever be their form, are intended by the parties’ as securities: upon which, if the instrument set forth the true and whole agreement, the property, in the view of a Court of Equity, is deemed to be all along in the apparent vendor, though liable as a security, for a sum of money to the apparent vendee. In other words, that case treats of such' transactions as seem to the world to be real sales; but are, as between the parties, secretly mortgages, or in the nature of mortgages. But, the present is a transaction of a different kind. There might possibly have been a dispute — though a very slight one^ — whether this were intended as a security or not. But when it is once ascertained that it was not so intended, and that it is fair and honest in its present form, it follows that neither the act of 1820, nor of 13 Eliz., 1 Rev. Stat. ch. 50, sec. 1, can touch it. The omission of any provision for a re-sale, in writing, does in no manner prejudice the creditor; for if it had been inserted, it would not have vested in Roles a property in the slaves, which the creditor could reach either at law or in equity. It is to be recollected, that if it had been put into the deed, it would not have made it a mortgage; for that was not intended; and, consequently, we must say, it should not have that *183effect. It was not, therefore, a conditional sale; but was a sale with a fair stipulation to re-sell. That differs not at all from an ordinary contract to sell. Both constitute executory personal centraets, and are merely choses in action. The party alone can enforce the contract, and not his creditors; and even the party can claim the benefit of it only by a strict observance of the time, and every thing else to be done on his part — as to which, nothing appears in this case.

The judgment must, therefore, be reversed; and, under the agreement of the parties appearing in the record, there must, notwithstanding the verdict, be judgment in favour of Harris upon his interplea.

Per Curiam. Judgment reversed.