Peacock vs. Terry.

willing to pay the balance, if any is due, he must be entitled to relief. But the complainant in this bill, does not make clearly and distinctly these averments. He does not, with sufficient distinctness, offer to pay, or avow his readiness and willingness to pay whatever of principal and lawful interest remains unpaid, if any is found unpaid. In the amendment to the bill made in 1846, he says, "Your orator farther states, that he has paid to said Lewis Peacock all that is reasonably and legally due on the aforesaid note and mortgage, and that the same ought to be delivered to be cancelled, and further states, that if said debt is not fully paid, that your orator is ready and willing, and herewith offers to pay to said Lewis Peacock whatever balance is really and legally due him." The averment is, first, that he has paid all that is reasonably and legally due on the note and mortgage. There is no such rule in Equity, as that a party shall pay what is reasonably due, before he is entitled to relief. Who is to judge of what is reasonably due? The complainant himself in the first instance. Upon that averment, it is clear that he is not entitled to relief. He farther says, that he has paid all that is reasonably and legally due. Legally leaves the matter still indefinite. What is due in the contract, at Law, is the principal only. There is a fixed rule on this subject in Equity, which is, that he must pay the principal and lawful interest, or tender it, and aver his willingness to pay it. He must come up to this rule. The other averment is obnoxious to the same exception. He has not fully paid the debt, he is ready and willing, and offers to pay whatever balance is really and legally due. Before, in our judgment, he is entitled to relief in this case, he must aver that he has paid the principal and lawful interest due on the note, and if principal and lawful interest are not paid, he is ready and willing, and offers to pay whatever balance of principal and lawful interest remains unpaid. Any requirement short of this would enable parties to evade the general rule. 1 Fonb. Eq. b. 1, ch. 1, §3, note h. 4 Bro. Ch. R. 436. 1 Johns. Ch. R. 367. 5 lb. 142, '3, '4. Story's Eq. Jurisp. §301.

says, if he

[6.] The Court was farther requested to instruct the Jury, "That the allegations and admissions in complainant's bill are

Peacock rs. Terry,

evidence against him," which he declined to do, but instead, instructed them, "That in this case the defendant had denied the allegations in the bill, and, therefore, they were no evidence for either party." The rule as to the force and effect of the allegations made by the complainant is this: facts alleged, positively, are constructive admissions in favor of the defendant, of the facts so alleged, and, therefore, need not be proven by other evidence. The plaintiff by introducing them in his bill, and making them a part of the record, precludes himself from disputing their truth, whether they be true or false. The allegations and admissions of the complainant's bill are, therefore, evidence against him. The Court does not controvert this general rule, but holds that, in this case, they are not evidence for either party, because denied by the defendant. However, it may be true that such a denial, by the defendant, would seem to neutralize the effect of the allegations and admissions, still it is true that the complainant is bound by them-he cannot dispute their truth-nor can he prove and recover but according to them-they being taken as true. He cannot prove and recover according to a case inconsistent with the case he has made upon the record, and in this light they are to be regarded by the Jury. 2 Daniel's Ch. Prac. 974. Gresley's Eq. Evid. Am. edit. 8, 9.

The Court instructed the Jury, that those parts of the bill stricken out by the amendment, were not to be regarded by them. That was proper as the case stood after the amendments. Believing, as we do, that the amendments were improperly made, the bill is to be regarded as though no amendments had been made.

Let the judgment be reversed.

No. 31.-FRANCES GALT, et al. plaintiffs in error, vs. ABEL JACKSON, defendant.

[1] A sale of property by J to G, and an obligation by G to re-convey the same property on certain conditions, where the transaction does not create the relation of debtor and creditor between the parties, is not a mortgage, and G will only be held to a compliance with the terms of his bond. [2.] A conveyance of property to prevent the lien of expected judgments from attaching is illegal, and the party so transferring his property will not be aided by a Court of Equity in reclaiming it.*

[3.] Two witnesses, or one with probable circumstances, will be required to outweigh an answer asserting a fact responsively to the bill; more especially if there be three defendants all concurring in the same statement. [4] When the Court is requested by counsel to charge on points of law which bear upon the case, it is the duty of the Court to charge on the points.

In Equity, in Murray Superior Court. Tried before Judge WRIGHT, March Term, 1850.

*See case immediately preceding this.[REP.]

Galt and others vs. Jacksou.

In 1845, Abel Jackson sold a negro, named Caroline, to Frances Galt for the sum of $400, and she gave to James McGehee an obligation to the effect, that if McGehee should, within one year, tender to her the same amount of $400 and the bond, that she would convey the negro, if alive, to the said McGehee, for the use and benefit of the family of the said Jackson. McGehee did not tender the money, nor claim the fulfilment of the bond, but Jackson tendered the amount, and demanded that the negro be conveyed to a third person, to whom he wished to sell her, which Mrs. Galt refused to do. Whereupon this bill was filed to compel her to convey the negro as required, if alive, and if not, to account for her value.

It appeared in evidence, that at the time Jackson sold the negro, he was in debt, and that judgments were about to be obtained against him. On the trial of the cause, defendants requested the Court to charge the Jury, that if the money paid by Frances Galt to Abel Jackson was not a loan, and did not create the relation of debtor and creditor, then the sale and bond to re-convey did not assume the character of a mortgage, but was a conditional sale, and that Mrs. Galt was only bound to comply with the express terms of her bond, and on the performance of all the conditions by the other party; and farther, that if the sale by Jackson was to defeat creditors, that Equity would not entitle him to a re-conveyance.

Which charges the Court refused to give, only saying to defendants' counsel, that if he charged at all, it would be against

them.

The Jury found for complainant; whereupon defendants excepted to the refusal of the Court to charge as requested.

BROWN, for plaintiffs in error..

No one representing defendant, the cause proceeded ex parte.

By the Court.-LUMPKIN, J. delivering the opinion.

Abel Jackson filed his bill in the Superior Court of Murray County, charging, among other things, that on the 3d day of

Galt and others vs. Jackson.

March, 1845, he was the owner of a negro girl, named Caroline; that being in want of $400, he mortgaged said slave to Edward M. Galt, as the agent of Frances Galt, and delivered the possession of the girl to Edward M. Galt, upon the receipt of the money; that said Galt, as agent of his mother, Frances Galt, executed a bond to re-convey said negro, provided James McGehee should, with the said bond, tender to the said Frances Galt $400 in cash, twelve months from the date of the covenant. In that event, the said Frances Galt was to make titles to the said James McGehee, to the girl Caroline, provided McGehee should want her for the use and special benefit of the family of Jackson, the complainant, and provided, also, the girl should then be alive. The bill farther charges, that McGehee had no personal interest in the transaction, and was not expected to advance the purchase money, but that the whole responsibility of redeeming the property devolved upon the complainant, Jackson; that the money was tendered, together with the bond, as stipulated, and a re-conveyance demanded, and that the same was refused, and that the girl was worth $550. The bill farther charges, that application was repeatedly made to James McGehee, to secure to the complainant and his family, the benefit of said agreement, which he has fraudulently refused to do, and that the negro has been retained in contravention of the express condition in said bond. The prayer of the bill is, that the negro may be redeemed upon the payment or tender of the purchase money, if in life, and if dead, that the parties may be decreed to pay the difference between the price paid and the true value, or the surplus of value, generally, to the complainant.

To this bill the defendants severally answered. Frances Galt states, that being in want of a girl, she authorized her son, Edward M. Galt, to buy one for her; that in accordance with said instructions, he purchased the girl Caroline at the sum of $400, which was considered, at the time, her full worth; that she took an absolute bill of sale to the girl, and for the better securing the title, required James McGehee, the father-in-law of the vendor, to join in the warranty; that she never considered Jackson her debtor, nor was there any other understanding conVOL IX 20