Laeber v. Langhor

Bowie, J., delivered the opinion of the Court. This appeal is take from a decree of the Circuit Court for Baltimore County, sitting as a Court of Equity, perpetuating an injunction previously granted by said Court, and giving other and further relief. The cause seems to have been set down for hearing, upon bill, answer, and evidence taken and returned under a commission ; no replication appears in the record, the answer was supported by affidavit. The allegations of' the appellee, the complainant below, substantially charge,, that on the 24th of April, 1871, he executed an instrument in the form of an absolute bill of ⁴⁸⁰ sale, for the nominal consideration of seven hundred and fifty-two dollars and ninety cents, to secure the payment of two promissory notes given hy the appellee, to the appellant, of the same date, for $652.92 ; that these notes were afterwards paid to the appellant; notwithstanding which, the appellant had seized, taken and carried away, the goods and chattels described in the hill of sale, with intent to sell them, etc. The bill prayed, that the instrument purporting to be .a bill of sale, might be declared a mortgage, and delivered up to- be cancelled ; that an account might he taken between them, and the appellant enjoined from selling and disposing of the goods before mentioned.

The answer denied all the material allegations of the bill, averred that the instrument was intended to be an absolute bill of sale, and not a security for the notes; denied the payment of the notes, and averred the appellee was indebted to- the appellant for a large amount, still due on the notes, which were given for other indebtedness of the appellee, on subsequent transactions; that the appellee failed to meet the notes at their maturity, and they were taken up hy the respondent, and the appellee renewed the same, but had failed to pay the renewed note. The appellant denied the taking of any articles from the possession of the appellee, except such as wei’e enumerated in the hill of sale. The Court below decreed that the bill of sale was a security only, for the payment of the sum of money mentioned as the consideration thereof, and not an absolute sale and transfer of the property and chattels therein mentioned ; that the money thereby secured has been fully satisfied and paid hy the appellee, and the bill of sale and record thereof are void, etc., and adjudged and decreed that the appellant shall surrender the bill of sale to be cancelled, and that the injunction previously issued, be perpetual, etc. From this decree, the defendant appealed, and insists the Court below erred in matter of fact, as well as in matter of law. ⁴⁸¹ In the first aspect of the case, he contends, that assuming the bill of sale to have been given as a security for the notes of the same date, (24th April, 1871,) amounting to $652.90, those notes were not paid but renewed, and a balance still remains unpaid. 2nd. There is no case shown by the bill, that entitles the complainant to an injunction ; no charge of irreparable damages, or insolvency.

After a careful consideration of all the evidence, we think there is no reasonable doubt that the bill of sale of the 24th of April, 1871, although purporting on its face to be made for a money consideration, and without condition, was in fact a mortgage to secure the amount of the promissory notes of the same date, given by the appellee to the appellant, for $500 at 90 days, and