AWARD of an execution is a judicial and not a ministerial act: Battle v. Bering, 7 Yerg. 531; Daley v. Perry, 9 Id. 444; Schaller v. Wickersham, 7 Coldw. 379; all citing principal case.

LIEN OF EXECUTION commenced at common law at teste of writ: Green v. Johnson, 11 Am. Dec. 763; Jones v. Jones, 18 Id. 327. Commences at delivery of writ to officer, and takes precedence of subsequent transfers: Beals v. Guernsey, 5 Id. 348; Haggerty v. Wilber, 8 Id. 321; Cresson v. Stout, Id. 373; Jones v. Jones, 18 Id. 327, note 343. In North Carolina an execution is binding from its teste: Green v. Johnson, 11 Id. 763; see Palmer v. Clarke, 21 Id. 340.

MCNAIRY V. BELL.

[1 YERGER, 502.]

TENDER-PLEA OF.-To a declaration upon a note payable in good current bank notes, such as will be received in deposit in two banks named, and such as will pass at par at the time of payment, a plea of tender of such bank notes as would be received in the two banks named, which fails to aver that the notes were of par value, is bad on demurrer.

STIPULATION, IN A NOTE ON TIME, that if the amount thereof is not paid at maturity, it shall bear interest from date, is not usurious, nor against sound policy.

NOTE PAYABLE AT A PARTICULAR PLACE need not be presented for payment at that place in order to hold the maker liable.

READINESS OF THE MAKER of a note to pay at the time and place provided therein, and a continuance to be ready, is a matter of plea in a suit on the note, and if the money is brought into court, it will bar the recovery of interest and costs.

COVENANT brought by Bell, as assignee, etc., against McNairy upon an obligation executed by McNairy and others, in which they promised four years thereafter to pay John G. Meaux or order, at Nashville, five thousand one hundred and fifty dollars, in good current bank notes, such as will be received in deposit in the Nashville Bank or the Bank of Kentucky, and such as will pass at par at the time of payment; if not paid when due, the same to draw interest from the date." Defendant pleaded that on the day the note fell due, he paid part of it in money, and the balance, specifying it, he tendered in bank notes, such as would be received in deposit in either of said banks. Nothing was said about the bank notes being of par value. Plaintiff's declaration did not aver demand of payment at Nashville. Demurrer was interposed to said plea, and joinder. The demurrer was sustained, and judgment given for plaintiff. T. Washington, for the plaintiff in error.

F. B. Fogg, for the defendant.

By Court, CATRON, J. We are of opinion that the plea of tender is bad, because it does not aver that the bank notes tendered were of par value; this is the undoubted meaning of the covenant.

2. The contract that the note if not paid when due should bear interest from the date, was lawful, neither tainted with usury, nor in violation of sound policy: 15 Mass. 177; 1 Bibb,

242.

3. There was no necessity for presentment at the time the note fell due, although it was made at Nashville: 8 Mass. 480; 10 Wheat. 175; 17 Johns. 248. So this court has several times decided. If the defendant was in fact ready to pay at the day and place, and continued ready, this was matter for a plea with the money brought into court, when the plaintiff would be adjudged to receive the money, pay the costs, and would not have been entitled to interest by way of damages; to this the tender is a bar, not to the debt: 1 Ld. Raym. 254; 17 Johns. 253. The judgment must be affirmed.

Judgment affirmed.

NOTE PAYABLE AT A PARTICULAR PLACE need not, in Tennessee, be presented for payment at that place, to hold the maker: Mulherrin v. Hannum, 2 Yerg. 81; Blair v. Bank of Tennessee, 11 Humph. 88, citing principal case.

TENDER.-In Brown v. Gilmore, 22 Am. Dec. 223, and the note thereto, 224, this subject is considered, and the authorities in this series cited.

NOTE PAYABLE AT A PARTICULAR PLACE, payment of, need not be demanded at such place: Eastman v. Fifield, 14 Am. Dec. 371; Weed v. Van Houten, 17 Id. 468; but see Sullivan v. Mitchell, 6 Id. 546; and Mellon v. Croghan, 15 Id. 163, where an opposite conclusion was reached.

BENNET v. HOLT.

[2 YERGER, 6.]

VENDEE OF LAND SOLD SUBJECT to a condition of repurchase, is entitled to the rents and profits accruing between the sale and repurchase. INTENTION OF THE PARTIES GOVERNS, in determining whether a transaction constitutes a mortgage, or a sale with a right to repurchase, and such intent is to be ascertained from the circumstances of each case. CONDITIONAL SALE-INDICATIONS OF.-Where the price agreed upon and paid is about the value of the land conveyed, and the vendor is not bound to repay the money received, and possession is delivered to the vendee, the transaction is a sale and not a mortgage, and if liable to be defeated by the payment of a certain sum on a certain day, it is a condi. tional sale.

ASSUMPSIT for the use and occupation of certain lands. Ver

dict and judgment for plaintiff. On the trial it appeared that Bennet, by a deed, conveyed the land in question to Holt, in fee simple, for which Holt paid him five hundred dollars in money, and a like amount in notes. At the same time Holt executed a covenant in which he agreed to reconvey the land, upon receiving from Bennet five hundred dollars, his notes, and five dollars per acre for each acre of the land cleared by him. On August 24, 1816, Bennet had complied with the conditions of the covenant, the deed and covenant were canceled, and possession delivered up to him by Holt, after which time the latter carried off the crop growing on the land. Holt offered to prove that at the time he signed the covenant, it was understood and agreed that he should be at liberty to carry off the crop, but the court rejected such evidence. He also offered to prove, by admissions made by Bennet after the execution of the deed, that he was to have the crop. This evidence was also rejected. The court charged the jury that the transaction in this case was a mortgage and not a purchase by Holt, with liberty to Bennet to repurchase, and that the mortgagor had a right to the rents and profits, and was entitled to possession until forfeiture; and that after the cancellation of the deeds, and repayment of the money and notes by Bennet, he had a right to recover the rents which accrued before the redemption of the mortgage.

By Court, HAYWOOD, J. This cause has been very ably and elaborately argued, and the decision would have been far more difficult but for the pains taken at the bar in the production of authorities, the examination of their principles, and the methodized and lucid presentation of every part of the subject which required consideration. If every case were investigated with the same accuracy, embarrassment would be greatly dimiuished, and the chance for the intervention of mistake would be much circumscribed.

The action is founded on the assumption that the conveyance made by Bennet to Holt was a mortgage, and that the profits of the land conveyed belonged to the mortgagor and must be accounted for to him. This consequence will not follow if that conveyance be a conditional sale, to be defeated by payment of five hundred dollars and interest at a certain prefixed day. The legal consequence of its being the one or the other of these instruments is not disputed; but the difficulty is to determine into which class this conveyance falls. If the intent was to lend money and to secure the payment thereof, then it is a mortgage; and whether it was so or not is generally discover

able from certain symptoms. Is there a striking disparity in value between the property conveyed and the money advanced? It is then probably intended as a security. Is there no price fixed? It is then probably not a sale, but a security only; for had a sale been contemplated, the price would have been agreed on. Is there a covenant for repaying the money? If so, it is most probably a mortgage; for repayment is incompatible with a sale, and an absolute receipt of money for it. Does possession remain with the maker of the conveyance? This circumstance repels the idea of a sale; for the vendee, il case of a sale, would take possession. But if the price be settled, and there be not any great disparity between the money advanced and the thing conveyed, if the receiver of the money be not bound to repay it, and there is no covenant to that effect, and if possession is delivered to the vendee, then it is a sale, and, being liable to be defeated by paying a certain sum on a certain day, it is a conditional sale. In the latter case the property passes to the vendee, and remains in him until defeated by the payment; and until such payment made, he enjoys all the advantages of an owner, and is entitled to the usufruct. If he were a mortgagee, he would not be owner; he would only have a pledge or security for a debt-he would not be entitled to the profits proceeding from the use of the thing pledged; he could only make it subserve the purpose of raising his principal and interest; no part of the surplus would belong to him, but to the mortgagor.

Let us try, by the aid of these signs, to distinguish the species of conveyance to which the one before us is to be referred. Here is no obligation in Bennet to repay the money on the day appointed. He can not be sued for it, but is to advance it at his own will and pleasure. The price is fixed-five hundred dollars paid down and five hundred dollars in notes. He may compel the payment of these notes (if not delivered), if he chooses not to defeat the sale; they form a part of the purchase money never to be returned, unless he desires a reconveyance at or before the stipulated time mentioned in the covenant. Can this be a loan of money to Bennet? Has this the feature of a mortgage? Immediately upon the execution of the deed the vendee takes possession without any objection on the part of Bennet. He is to clear and improve the land, as owners do in general, for which he is never to be paid by Bennet, but in the event of his defeating the sale at the day specified, and then he is to be indemnified, and not otherwise. Why in

demnify him only in the event specified? Because in all others the work is done for himself, upon his own estate, and not for the benefit of Bennet. This, then, is a conditional sale, defeasible by the performance of a certain condition on a certain day, which, if not then performed, expires, and leaves the sale unconditional and absolute. The profits belong to the vendee as owner in the mean time, and never can be reclaimed by the vendor. This goes to the subversion of the plaintiff's right, and renders it unnecessary to inquire whether the remedy he has pursued be a proper one or not. But it is said that on the day stipulated, Bennet having paid the money, the vendee reconveyed, and this, it is said, carried the crop then growing as well as the land. If this be so (which it is unnecessary now to decide), and the defendant took the crop, trespass is the proper remedy. The present action is, however, founded upon the supposition that the crop belonged to the defendant. He is charged only for the use of the land which produced the crop; the removal of the crop by the defendant is not complained of. The judgment must be reversed.

Judgment reversed.

VENDEE of land sold subject to a condition of repurchase is entitled to the rents and profits accruing between the sale and repurchase: Myrick v. Boyd, 3 Hayw. 179.

In the note to Chase's case, 17 Am. Dec. 300, the question as to when a deed absolute in form, with an agreement to reconvey, constitutes a mortgage, and when a conditional sale, is discussed and considered at length. In Thompson v. Patton, 15 Id. 47, the admissibility of parol evidence to show that an absolute deed or bill of sale is intended as a mortgage is considered, and the authorities in this series and elsewhere cited.

STATE V. NORVELL.

12 YERGER, 24.]

PLEA OF ACQUITTAL OR CONVICTION upon a good indictment, although n judgment was ever rendered thereon, is a good plea in bar to a second indictment for the same offense.

CONVICTION OF A PERSON FOR MANSLAUGHTER, who was indicted for murder, will be a good plea in bar to a subsequent indictment for the same offense, notwithstanding the judgment on such conviction was erroneously arrested on the defendant's motion.

VERDICT HAVING been Found against the DefeNDANT in a criminal case, and the judgment thereon having been erroneously arrested on the defendant's motion, the judgment of arrest may be reversed on error, and judgment of conviction rendered.

THE facts are stated in the opinion.