Oldham v. Halley

• Citation: 25 Ky. 113
• Parties: Oldham v. Halley, and vice versa.
• Decision Date: 27 June 1829
• Court: Kentucky Court of Appeals

25 Ky. 113

Oldham v. Halley, and vice versa.

Court of Appeals of Kentucky.

June 27, 1829

Conditional Sale. Prayer for General Relief. Interlocutory Decrees. Replevin or Credit, Proper Under Decree of Sale of Mortgaged Property.

CROSS WRITS OF ERROR TO THE MADISON CIRCUIT; GEORGE SHANNON, JUDGE.

Breck for Oldham.

Turner for Halley.

OPINION

UNDERWOOD JUDGE.

These are cross writs of error, prose cuted to reverse a decree of the circuit court. The following are the facts and points exhibited by the record: Oldham filed his bill in chancery against Halley, to compel a specific execution of the following interest. " Know all men by these presents, that I John Halley, of Madison county, and state of Kentucky, for, and in consideration of two hundred and fifty-five dollars, to me in hand, paid, have bargained and sold unto Richard Oldham, a certain parcel of land, containing seventy-five acres, adjoining the lands deeded to said Oldham, on the waters of Stony run, on the north and west sides. But it is to be understood, if the said Halley, shall pay back to the said Oldham, two hundred and fifty-five dollars, with interest, within twelve months from the date hereof, the land is to remain the property of the said Halley, otherwise, the said Halley is to make the said Oldham, a general warranty deed. Dated 7th March, 1821. Signed, John Halley. Seal."

The foregoing contract was attested by two witnesses, one of whom, on the 15th of June, 1821, proved its execution, before the clerk of the Madison county court, and the other, on the 6th of August, 1821, fully proved it, and therefore, it was admitted to record in said clerk's office, who, in his certificate, styles it a mortgage. The subpoena issued January 7, 1824, returnable to the February term, next ensuing, and is returned executed on the 6th of February. On the 18th day of June following, the bill was taken for confessed, and a decree rendered, requiring Halley to convey the land to Oldham, at the September term of the court, on the petition of Halley, the decree at June, was set aside, and his answer admitted. At the February term. 1827, a decree, interlocutory, was pronounced, requiring Halley to pay Oldham, $255, with interest from the date of the contract, together with the costs of the suit, or " with good and sufficient security to replevy the same for two years in the clerk's office," on or before the 1st day of the ensuing June term. In case he failed to do either, the decree proceeded to provide for the sale of the land, or so much as might be necessary to pay the sum decreed, " for ready money." At the June term, 1827, it appearing, that Halley had failed to comply with the interlocutory decree, the court ordered the commissioner to proceed with the sale, as required by the interlocutory decree. Halley assigns errors in both decrees, to-wit, that of June, 1824, and that of February, 1827, and Oldham in his assignment, insists that the court erred, in not decreeing a conveyance, in permitting the decree to be set aside, and in failing to decree a balance to him, in case the land when sold, should not pay the amount of this debt and interest.

The first question for consideration, and that upon which all others, in a great degree, depend, is the true nature of the contract, already set out. Is it a mortgage, or is it a sale upon condition? The solution of this question, when it occurs, depends upon the circumstances of each case, and the sound discretion of the court. Such is the rule laid down in Prather v. Norflat, I. Marshall, 178. As to the circumstances of this case, interest is recovered on the money, Oldham has the instrument proved and recorded as a mortgage, and he speaks of it as such, according to the proof. These are strong circumstances in favor of the construction, that it was merely intended to be a security. But then the clause, stipulating to make a general warranty deed, if the money is not paid, seems to be incompatible with any thing but a sale. As to the facts which should regulate discretion, Halley charges in his answer, to which he requires a response from the complainant, that the instrument when executed, was intended by the parties to secure the amount therein stated, and not as a sale. The complainant replies to this by saying, " that he can convey no better idea of the contract, and his intention, and Halley's, than the writing itself conveys. This response is not satisfactory. To our minds, there is an equivocation in it. It is sticking to the letter of the contract. The object of Halley, was to test his conscience, and to require him to say, whether the land was not given as a security, for the money advanced, and whether he, Halley, did not execute the contract, with that intent, and whether Oldham himself intended any more at that time. Oldham must have known from the conversation, and all the facts connected with the arrangement, what was intended and meant, and he could have answered directly, without referring to the ambiguous face of the instrument. His failing to do so, is evasive. Oldham in his answer says, the money due him was " good par money, gold and silver, and not paper money." The proof is,...