The case, as stated in the pleadings, and established by the proofs, appears to be this: In 1844, Lewis Wilson bequeathed certain slaves to his wife for her life, and ordered that at her death, they should be sold by his executors, and the money equally divided between three of his children, of *Page 350 whom the plaintiff was one. Mrs. Wilson died in the latter part of the year 1851, at the age of seventy years, and her health had been feeble for three or four years before. Early in the year, 1852, the executors sold the negroes, then consisting of three in number for a little over over $1200, and taking into consideration the age and infirmities of the tenant for life, one-third of the remainder in the slaves, or their proceeds was worth two hundred and fifty dollars in October, 1850. The original defendant was a constable in 1850, and had executions against the property of the plaintiff, amounting to $35, which he was unable at that time to raise; and it was agreed by them that Weston should pay the debts, and Wilson should repay the amount within six months, and that the plaintiff should convey or assign his interest in the three negroes to Weston as a security for the money to be advanced, according to the allegations in the bill, or, as stated in the answer, by way of conditional sale, under which the title or right should be absolute in Weston if the plaintiff should not repay the money within the time limited. Weston then prepared a deed which purports to be a conveyance from Wilson to Weston, of the three slaves by name, in possession, with general warranty, in consideration of $35, with a proviso "that said Wilson shall have the privilege of redeeming the above named slaves, by paying to the said Weston, the said sum of $35, on or before the expiration of six months from this 19th of October, 1850." On the day of the sale, by the executors, the plaintiff tendered to Weston the sum of $35, and the interest thereon from October 19, 1850, and the latter refused to receive it, because it had not been paid within the six months, and claimed one-third part of the proceeds of the slaves as the assignee of the interest of the plaintiff. On the same day, Weston paid to the creditors, in the executions against Wilson, their debts, and in February, 1852, he had the deed proved and registered, and it appears to have been executed by the plaintiff by making his mark.
The bill was filed in March, 1852, and prays that the deed of October, 1850, may be declared to be a security, only for *Page 351 the sums due on the executions, and that on payment thereof, the defendant may be compelled to reconvey, or assign to the plaintiff. There may be in some cases much difficulty in distinguishing between a mortgage and a conditional sale; but there are very decisive evidences of the true character of this transaction. The deed of itself imports primafacie a security, and not a sale — by "the proviso for the privilege of redeeming" the negroes, which between these parties is equivalent to a technical condition on which an equity of redemption, proper, would arise as denoting the intent of the parties. The inference from these terms is fortified strongly by the circumstances. It is impossible to believe, that the bargain was for the interest expressed in the deed. It purports to be a conveyance, out and out, of the three slaves specifically, without taking any notice of the existing life-estate of the mother, or the interest of the other two children in the fund after her death. No money was advanced by Weston, but he only agreed with Wilson orally, that he would satisfy the executions, which, however, he never did until after the life-estate fell in. The plaintiff was illiterate, and needy, and in the power of the other party, and the disparity between the alleged price, and the value of the true interest of the plaintiff, was very great, while that between the price and the value of the negroes, as conveyed, was enormous. The agreement could not have been for a sale of any kind, but only as a security; and the plaintiff is entitled to a declaration to that effect, and a decree accordingly.
As the original defendant denied the plaintiff's right to redeem altogether, the plaintiff is entitled to his costs up to the hearing. In taking the account, those costs must be set against the debt and interest; and, should there remain a balance *Page 352 of costs, the present defendant must pay it out of the assets of his intestate.
PER CURIAM, Decree accordingly.