Opinion
01-07-1812
Turner v. Turner
This was a suit in Chancery, on behalf of James Turner, against Bartholomew Turner, in the County Court of Goochland.
The object of the bill was an action of profits, and conveyance of the title, of a tract of land, for which a deed had been made by a certain William Sampson and Betsey his wife, to the defendant. The plaintiff alleged, that he was equitably entitled to the land, by purchase of the said Sampson; that, having borrowed the sum of fifty pounds of the defendant, he caused the said deed to be made, as a mortgage to secure its re-payment; that the defendant was put into possession, and by the use and occupation of the land had more than satisfied his claim of the money, with interest. The defendant contended that the bargain between the plaintiff and him, was originally an absolute sale of the land, and that the said sum of fifty pounds was paid in part of the purchase money; but he admitted that, afterwards, the plaintiff pressed him to give him time to repay the same with interest, and to take back the land; to which he assented, and gave time till Christmas, 1798, and no longer. He therefore insisted that the last arrangement made the contract, not a mortgage, but a conditional sale. [*]
By consent of the parties, all matters in difference between them, relative to the suit, were referred to certain arbitrators, whose award was to be made the decree of the Court. An award was returned, declaring their opinion to be " that the endorsement on the deed in question shall operate as a mortgage; " which endorsement was in the following words; " memorandum, it is agreed between the within-named Bartholomew Turner, and James Turner, (who in this case represents the within-named William Sampson,) that if he, the said James Turner, his heirs or assigns, shall pay, or cause to be paid, to the said Bartholomew Turner, his heirs, & c. the sum of fifty pounds current money, as within mentioned, with legal interest thereon from the date of 19th March last, and to be returned on or before the 25th day of December next ensuing the date of this indenture, then this indenture is to be considered by the parties, and 'tis hereby agreed by the said Bartholomew Turner, to be null and void to all intents and purposes. 'Tis understood by the parties, that the above fifty pounds, with interest as aforesaid, is to be paid by the said James Turner to the said Bartholomew Turner, on or before the 25th day of December, 1798, or this conveyance is to be considered good and valid." The arbitrators awarded " that on the said James Turner's paying the said Bartholomew Turner fifty pounds, with interest from the 19th March, 1798, the land shall revert to the said James Turner."
The award, moreover, set forth that, " on further examination of the open accounts between the parties, there appeared to be a balance of 11. 4s. 9d. in favour of the said James Turner."
The county Court decreed, that, upon the plaintiffs paying the said sum of fifty pounds, with interest until payment, the said Bartholomew convey to him the land by deed with warranty against himself and those claiming under him; (but appointed no time for such payment; ) and that the plaintiff recover costs; which decree being affirmed by the Superior Court of Chancery, the defendant appealed to this Court.
OPINION
Friday, January 10th, the following opinion and decree were pronounced.
" It is the opinion of the court, that the decree of the Chancellor, affirming that of the County Court, is erroneous; the latter decree being erroneous in this, that a time should have been limited within which, if the appellee paid the money, he should have been entitled to a conveyance from the appellant; and in default of such payment, be foreclosed of all equity of redemption, and a sale directed of the mortgaged premises; --as also in this, that although the appellant was entitled to his costs in that Court, costs are decreed against him."
" The said decrees are therefore reversed with costs, and the cause remanded to be proceeded in according to the principles of this decree."
[*]Note. As to the difference between a mortgage and a conditional sale, see King v. NewmanMunf. 40. --Note in Original Edition.