Sewall v. Henry. re-sell, if the defendant applied on a given day, and that the latter did not by that agreement acquire a right of property in the thing. In the Congregational Church at Mobile v. Morris, 8 Ala. Rep. 182, this Court declined to consider a charge based upon an assumption of fact, the existence of which was negatived by the jury. The construction of the papers in the present case, is an unimportant matter, as the jury have found upon a view of all the evidence, that they do not constitute a mortgage, or a sale in praesenti, to be consummated at a future time. COLLIER, C. J.-Two writings, connected by a reference of one to the other, may be considered and construed as parts of an entire transaction, and as if they were embodied in one instrument. [18 Johns. Rep. 107; 4 Wend. Rep. 374; 5 Pick. Rep. 395; 1 J. J. Marsh. Rep. 200; Bates & Hines v. The Bank of Alabama, 2 Ala. Rep. 275; 17 Johns. Rep. 29; 2 Bibb's R. 610; 3 Fairf. R. 346; 3 Pick. Rep. 38.] In Dillingham v. Estill, 3 Dana's Rep. 21, it appears, that an action was brought by the latter against the former for the breach of a warranty of soundness contained in a bill of sale of two slaves, to which it was pleaded that the following writing, viz: "I, Benjamin Estill, release said Dillingham from any responsibility of said negroes, as witness my hand,-BENJAMIN ESTILL," was executed simultaneously with the bill of sale, and was an integral part of the contract of sale, intended to operate as a defeasance of the warranty. It was objected, that the writing pleaded could not be connected with the bill of sale by parol testimony, or by averment merely. The Court said, "it has been decided. that one writing cannot be connected with another, unless it in some way refers to it. But if that here relied on was contemporaneous with the bill of sale, it can be understood as referring to it without any parol proof. For surely, if a vendor of slaves makes a bill of sale with warranty, and at the same time, the vendee delivered to him a writing, stipulating that he shall not be responsible for "the said negroes," the latter agreement might, without any extraneous proof, be understood to refer to the former, and to mean that the vendor Sewall v. Henry. shall not be responsible on his formal warranty. It would not be inconsistent with either of the writings, or with any rule of evidence, to prove that they were given at the same time; and, indeed, as that given by the appellee, has no date, the fact of identity as to date, is far from being intrinsically improbable. Then, the fact being sufficiently averred in the plea, is admitted by the demurrer." Heywood v. Perrin, 10 Pick. Rep. 228, was an action of assumpsit on a promissory note, payable on demand, at the foot of which was a memorandum, as follows: "One half payable in 12 months, the balance in 24 months." Held, that it was competent for either party to the note to prove by parol evidence, the time when, by whom, and the circumstances under which the memorandum was made. It was thereupon proved to have been affixed to the note before it was delivered to the payee; and the Court held, that it was a part of the contract, and could not be contradicted by parol evidence. So it has been decided, that where a deed and separate agreement were construed an absolute sale, parol evidence, to show that a mortgage was intended, could not be received. [8 Conn. Rep. 177.] And where they import a mortgage, parol evidence is inadmissible to show that an absolute sale was intended. [7 Wend. Rep. 248; 5 Binn. R. 499.] It is said to be generally the province of the Court to construe instruments, where the meaning is to be collected from the writing, without the aid of extrinsic proof, yet where the meaning is to be ascertained by facts aliunde, in connection with the written language, very much must be left to the jury. In such cases it has been laid down, that the construction is usually matter of fact for the jury;" again, that "an admixture of parol with written evidence draws the whole to the jury." In Etting v. The Bank of the United States, 11 Wheat. Rep. 59, it was held, that although it may be the province of the Court to construe written instruments, yet where the effect of such instruments depends, not merely on the construction and meaning of the instrument, but upon collateral facts in pais, and extrinsic circumstances, the inferences of fact to be drawn from them, are to be left to the jury. See further, 3 Phil. Ev. C. & H.'s notes, 1420.] Sewall v. Henry. In the case at bar, the bill of sale made by the defendant to the plaintiff, and the stipulation to re-sell the slave by the latter to his vendor, if demanded on a day designated, were made on the same day, and relate to the same subject matter. This perhaps is quite sufficient to show, that both instruments evidence but a single contract. But they describe a slave of the same name and age, and express the same sum as a consideration for the sale; and in addition, it was proved, that they were written by the plaintiff, and at his request were attested by an individual, who was his principal clerk, and sole agent when he was absent from Mobile-in fact, that they were both completed at the same time, and as parts of an entire transaction. We must then consider them as if they were written on the same sheet, or expressly referred to each other. The contract may be thus briefly stated; the defendant sold to the plaintiff the slave, for two hundred and fifty dollars, which sum was paid: in consideration of such sale, the plaintiff agreed that the right of property and possession should revest in the defendant, if he would pay him a sum of money equal to what is expressed in the bill of sale, upon an appointed day. It cannot be inferred from the terms employed in the writing, which may perhaps with propriety be called a defeasance, that the plaintiff would, on the day designated, stipulate with the defendant for a sale of the slave. The parties intended, at the time the bill of sale was executed, to provide for a resale to the defendant, and leave nothing open for a future agreement. Every thing that was necessary to consummate it, was doubtless supposed to be done, with the exception of the tender of the money, by the defendant, at the appointed day, and the delivery of the slave. This being the obvious intention, as indicated by the writings, without the aid of extrinsic proof, it must be upheld. But if the words employed, when literally interpreted, warranted a different conclusion, it would be proper to sacrifice the letter, in order to subserve the intention. [Bates & Hines v. The Bank of Ala., 2 Ala. Rep. 275; Whitsett v. Womack, use, &c. 8 Ala. Rep. The cases of conditional sales, or defeasable purchases, are distinguishable from mortgages. They are to be taken Sewall v. Henry. strictly as independent dealings between strangers; and the time limited for the re-purchase must be precisely observed, or the vendor's right to reclaim his property will be lost. [4 Kent's Com. 4 ed. 144; 1 Russ. & M. Rep. 506.] Where it is doubtful whether the parties intended a mortgage, or a conditional sale, Courts of Equity incline to consider the transaction a mortgage, because it is more benign in its operation. "The difference between them is, that the former is a security for a debt; and the latter is a purchase for a price paid, or to be paid, to become absolute on a particular event; or a purchase accompanied by an agreement to re-sell upon particular terms. It is the latter kind that runs so nearly into a mortgage." Again: "But there is no rule of law, that a sale shall not be made conditionally. In each case, the only difficulty is to ascertain the character of the transaction.' The usual badges of a mortgage are a previous debt, or a present advance of money upon loan; for which some evidence is taken, obliging the borrower personally to the absolute payment. [1 Dev. Eq. Rep. 373.] But if the debt be extinguished by the agreement of the parties, or the money advanced is not by way of loan, and the vendor has the privilege of refunding, if he pleases, by a given time, and thereby entitle himself to a re-conveyance, it is a conditional sale. [2 Ball & B. Rep. 274; 7 Cranch's Rep. 237; 1 Paige's R. 56; 2 Edwards' Rep. 138; 14 Pick. Rep..467; 2 Sumn. R. 534.] In the case cited from 7 Cranch, Chief Justice Marshall said, "To deny the power of two individuals capable of act-. ing for themselves, to make a contract for the purchase or sale of lands, defeasible by the payment of money at a future day, or, in other words, to make a sale with a reservation to the vendor of the right to repurchase the same land at a fixed price, and at a specified time, would be to transfer to the Court of Chancery, in a considerable degree, the guardianship of adults, as well as infants. Such contracts are certainly not prohibited by the letter or policy of the law." Further, "The want of a covenant to repay the money, is not complete evidence that a conditional sale was intended, but is a circumstance of no inconsiderable importance. If the vendee must be restrained to his principal and interest, Sewall v. Henry. that principal and interest ought to be secure. It is therefore a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy really exist, its not being reserved in terms will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument," which are a formal stipulation to re-sell. See, also, 8 Conn. Rep. 143; 9 Yerg. Rep. 172; Hilliard on Sales, 18, 19. In Eiland, adm'r, v. Radford, 7 Ala. Rep. 724, the intestate of the plaintiff made an absolute bill of sale of a slave, to the defendant; afterwards the latter executed a defeasance, by which he stipulated to deliver to the vendor the same slave, provided he repaid him, on a day therein designated, a sum equal to that expressed in the bill of sale. We were of opinion that the two writings imported a conditional sale; that although it was sometimes difficult to distinguish such contracts from mortgages, yet there are certain tests which may be successfully applied in doubtful cases. Among which the following were enumerated, viz: Did the relation of debtor and creditor subsist before the alledged sale? Did the transaction commence by a proposition to lend or borrow money? Was there a great disparity between the value of the property, and the price agreed to be given for it? the vendor continue bound for the debt? If either of these facts exist, it was supposed that they indicated the transaction to be a mortgage, unless the effect was paralyzed by some other opposing feature in the case. Did The citations we have made, very clearly show, that there is no difference in point of law, between a sale for a price paid, or to be paid, which is to become absolute on a particular event, and a purchase accompanied by an agreement to resell upon certain agreed terms. In both cases, the sale is to be regarded as conditional, and if the condition which is to defeat it, is promptly performed, in the one case the title will not vest in the vendee, and in the other it will be divested. If the condition be performed, or an offer made to perform it, at the time stipulated, not only jus ad rem, but jus in re will vest in the party who the contract provides shall become the proprietor of the thing. |