Mount v. Harris

9 Miss. 185

• Court: Mississippi Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

Per Curiam.

By the bill it appears that on the 17th of March, 1840, Moses Gallaway, one of the respondents, sold to Thomas Cook, another of the respondents, a negro woman, for which Cook was to pay, on the 1st of January following, nine hundred dollars. The bill of sale contains on its face the condition, that in case Cook failed to pay at the time specified, then the negro woman was to be returned to Gallaway; and the note given for the purchase money, contains the same stipulation. On the 19th of March, Gallaway transferred his entire interest in the contract to the complainant, Harris; by which assignment, Harris was substituted to all the rights of Gallaway. Some time in the summer of that year, Cook left the State, after declaring to Gallaway that he would not be able to make the payment, and would return the slave. After Cook’s departure, the slave and the bill of sale were delivered to the complainant. The respondents sued out attachments against Cook as an absconding debtor, which were levied on the slave then in possession of the complainant, as the property of Cook, to enjoin proceedings on which the bill was filed. The answer of Gallaway admits every allegation contained in the bill, and asserts that the sale was only conditional. The disposition of Cook, also, fully sustains the allegations. He also proves that he told Gallaway that he could not comply with the contract, and would deliver up the negro; and when Gallaway came for her, he obtained permission to retain her on hire for a few weeks, in consequence of the sickness of his wife. On this state of facts, the chancellor decreed for the complainant, and the respondents appealed.

It is contended that the contract between Gallaway and Cook, amounted to an absolute and unconditional sale, and that the negro was consequently liable to the attachments as Cook’s property. Such, however, does not seem to have been the intention of the parties, and that intention must regulate the construction of the contract. The bill of sale is in these words; “I, Moses Gallaway of the first part, do trade to Thomas Cook of the second, a negro girl named Matilda, for which said Cook gives his note for nine hundred dollars, due 1st January, 1841, which said Cook is to pay him, the said Gallaway, or return him, the. said Gallaway, the above mentioned negro girl, Matilda.” The note is also in the alternative that Cook was to pay the money or return the negro girl. From these instruments, it seems that Gallaway did not intend to part with his right to the negro girl, until the money should be paid; and there is no legal principle which converts the contract into an absolute one, unless there be some evidence that such was the intention of the parties. Personal property may as well be the subject of a conditional sale as real property; and although possession may be prima facie evidence of ownership, yet it is subject to be rebutted. The case of Howes v. Ball, cited in the argument, is distinguishable from this. That was an absolute sale of the coach, but the vendor was to hold a claim on it until the bills were delivered in payment. The claim was, at most, nothing more than a mere lien ; the right of property had vested by the sale. Here the rights of property did not pass except on the performance of a condition. The vendor retained more than a lien; .he did not part with the right. Although this case is similar in some of its features to that of Hussey et al. v. Thornton, referred to by counsel, there is also at least one material difference. It was there held that such a sale would be regarded as absolute as to creditors who had given credit whilst the property was in possession of the vendee. Here, it does not appear that any such credit was given, and the limited duration of Cook’s possession renders it probable that no such credit was given.

But there is an additional circumstance in this case, which must be decisive of the question, even if there was any doubt about the nature of the contract. It is competent for parties to rescind a contract; and such rescission will cut out liens subsequently acquired on claims against the vendee. The testimony fully warrants the conclusion that the contract was rescinded. To say the least of it, Gallaway had retained a lien for the purchase money; Cook acknowledged that he would not he able to pay it, and proposed to return the negro—which return was in effect made when he obtained permission to retain her for a short time on hire. And the rescission was absolutely completed, by the delivery of the negro and the title paper to the complainant, before the levy of the attachments. We cannot doubt, therefore, hut what the decree of the chancellor was correct; and it must, consequently, be affirmed.