inconsistent with the end of its creation. And surely there is no such limitation, express or implied, upon the power to appropriate the money of the United States, as could prevent the application of it judiciously to the purpose of facilitating the proper and expeditious transporsations of the national mails.

Can any rational and consistent man, who claims for the general government the harsh and ultra power to use ad libitum the roads of a State, without either compensation to, or consent by, the State, deny or doubt that Congress has power to appropriate money to make, or to repair, or to pay for the use of, public roads in a State, used or to be used as

post roads? We cannot believe that any such suicidal inconsistency will ever be exhibited by many national statesmen or jurists.

necessary and proper for securing such a road as the public interest demands. But if it will not do so, or when it chooses to repose on State authority, and rely on State expenditure, it must use roads as it finds them, and cannot claim privileges to which the people of the States are not themselves entitled; and if a uniform and general toll be exacted, Congress cannot complain that its authority had been resisted, or in any degree, impaired. →

to establish post roads was given for the purWe therefore conclude, first-that the power make, and repair, and keep open, and improve, pose of enabling the general government to Post roads, whenever the exercise of any such independent, national power shall be deemed proper for effectuating the satisfactory transBut the power to pay for the use of a State portations of the mails; second-that it was not given for the purpose of authorizing Conroad necessarily implies power to appropriate gress to adopt and use State roads as post money to repair, or even make, post roads. Had either of the States been alone interest-be just, and should be demanded; third-that, roads, without any compensation, if any should ed in the mails within their respective borders, the power to establish post offices and post roads would never have been given to the Congress of the United States. But, the mail being international, all power over it and over all means necessary and proper for making it most effectual, was therefore transferred to the councils of all the States united into one common government for purposes common to all. And, all power over the mail, and over post roads, has been thus surrendered to the general government, and as all the people of all

the States have an interest in the execution of

road as a post route, may be concerned, the so far as the designation and use of any State power to establish post roads cannot import more than the precedent power to establish post offices, and transport the mails-excepting only, that the one implies only a right of use, upon just and common terms, as long only as a State shall choose to continne a road as a State road, and the other may imply a right in Congress, not only to enjoy a like use, but to continue, as a post route, a road once adopted or designated or established as a post

that power in each State, there can, in our ued as a State road; fourth-that, unless road, even after it shall have been discontinopinion, be no semblance of eitheir justice or Congress shall elect to exert its right of emiauthority for a pretension by the national gov-nent domain, and buy a State road, or make ernment to a constitutional right, either to re-one, or help to make or repair it, the constituquire a State to make or repair post roads tion gives no authority to use it as a post road, with its own labor or money, without any as-without the consent of the State or owner, or sistance or retribution from the other States; without making a just compensation for the or, in every instance, to defer to the several States the discretion of having good or bad post roads, as their parsimony or liberality, poverty or caprice, may happen to prevail, and thus virtually to surrender to them individually

this important national trust.

It may be generally best for the general government to avail itself of the use of State roads in such condition as the State may be pleased to keep them, and upon such terms as they shall choose to prescribe. So, too, and more obviously and generally, it may be best for the general government to use, in the like manner, the jails and court houses of the several States. But the power, in each class of cases, to execute the national trusts, independently of State provision or State consent, is equally unquestionable; and, in case of post roads, the occasional exercise of that power would doubtless be, not only just, but greatly advantageous. Where there shall not be, in every respect, a suitable post road, it is, in our opinion, the duty of the general government to employ all the means which shall be

Lexington and Maysville turnpike should be use; and, fifth-that therefore, even if the deemed a public State road in all respects, and if Dickey, as mail contractor, has a right to transport the mail on any public road he ington and Maysville, he cannot do so, nor may prefer or choose to adopt between Lexhad Congress power to authorize him to do so, without paying for the use, if demanded, a least-what other persons are required to pay just compensation, and that is-prima facie at for a similar use of it.

After refusing, as it did, by the President's veto, to contribute any thing to the construction of the Maysville and Lexington turnpike, the general government could not, with any semblance of consistency, justice, or grace, claim the right to use and impair it, by carrying the mail upon it, in coaches, without paying to those who did make it with thier own private means, as much for the use and dilapidation of it as they have a legal right to exact and do receive, without objection, from

Gilbert C. Russell, once a Colonel in the On a subsequent visit to Louisville, in Oct., army of the United States, bought from Dr. 1830, Russell having discovered that the agJohn Floyd, of Virginia, a tract of land near gregate sum, to-wit: $4,829 822, acknowlthe city of Louisville, Kentucky for the con-edged to have been received from Southard, sideration of $12,960; and on the 22nd of was $100 more than the amount actually or May, 1826, Floyd and his wife conveyed to or nominally advanced; and, finding himself Russell the legal title to the land described as containing 216 acres-See bill, p. 5, of printed Record; Floyd's deed, p. 12, and deposition of R. Smith, p. 248.

disabled by misfortune from then repaying the money he had received, demanded of Southard $100 so as to make the sum nominally received equal to that for which he conveyed the land. Southard, after much diplomacy, finally paid him $100, and took from him on the 6th of October, 1830, a writing acknowledging the payment, for the purpose avowed by Russell, and, "in full for all demands."

testator, had owned one of the claims assigned to Russell, and drew the defeasance, as he avers in his answer; Wordan Pope, a lawyer, having, at the instance of James Southard, drawn the absolute deed, and probably the defeasance also, which was copied by D. R. Southard.

As it was not then convenient for Russell to reside on the land thus bought, he placed on it J. W. Wing, as his agent and manager. On revisiting Louisville in September, 1827, from his residence in Alabama, Russell ascertained that Wing had incurred debts which could James Southard took possession of the land not then be paid otherwise than by borrowing immediately after the date of the written memoney or selling the farm :--and his desire to morials of the contract, and retained the posraise, in one mode or the other, a fund suffi-session until his death in the year 1840, when, cient for paying those debts, being made known by his will, his interest passed to his brother, he was offered $10,000 for his land in real es- Daniel R. Southard, who was present at the state in Huntsville, Alabama-See the deposi- execution of the conveyance by Russell to his tion of C. Talbot, p. 186. But, unwilling to accede to that offer for a purchase, Russell, thus unexpectly pressed for money far from home, made an arrangement with James Southard, of Louisville, whereby he obtained from Southard an advance of $2,000, (the sum he needed,) and also took an equitable assignment of two claims of doubtful value then in On the 23d of September, 1847, Russell, as litigation--one on Dr. Johnson for $1,270 94, a citizen of the State of Alabama, filed a bill and the other on S. M. Brown for $1,558 87; in chancery against D. R. Southard and others, each of which Southard carefully assigned to as citizens of Kentucky, in the circuit court of him without recourse, and exacted from him the United States for Kentucky, alledging, an acknowledgment of the receipt of $4,929 among other things, that the contract between 81, in "coin" of the United States. Russell's J. Southard and himself was not a sale, but interpretation of this arrangement was, that only a mortgage for securing the repayment it was a loan to be secured by a mortgage on of a loan; that the advance of the considerathe land he had purchased from Floyd; which tion recited in the written memorials was a he considered as effectuated by a conveyance signed by him on the 24th of September, 1827, purporting to be absolute on its face--See p. 14-15, and by a separate defeasance signed both by Russell and Southard, of the same date-See p. 172.

By a writing simultaneously executed by Russell, he covenanted to procure his wife's relinquishment of dower within four months from that date; and covenanted that, in the event of a failure to do so, he would pay to Southard $,3,000, "as liquidated damages for that failure"-See p. 14.

loan; that the defeasance showed by its terms, that the absolute conveyance was intended to operate only as a mortgage; that D. R. Southard had fraudulently procured and still with. held from him the document of defeasance; that his (Russell's) embarrassments had preSouthard had, ever since they had frauduvented a redemption; that both J. & D. R. lently obtained the receipt and the possession of the defeasance, persisted in the false and fraudulent pretence that the contract was a conditional sale and not a mortgage, &c. &c., and, after propounding to the defendant, Southard, various interrogatories, concluding

with a prayer for a decree for redemption ou inserted in the conveyance, we insist that, on equitable terms. the face of these documents alone, the law On the 7th of February, 1848, Southard filed construes them as constituting a memorial of a long and elaborate answer, in which he de-a contract of a loan by Southard, and of mortnied that the contract was, as alleged, a mortgage by Russell. gage to secure a loan, insisting that it was an I. When an absolute conveyance is coupled absolute sale, and averred that the defeasance with a defeasance, the law inclines to conwas not "contempleted" by the original con- strue the contract as a mortgage, rather than a tract, was not executed until some days after conditional sale or a defeasable purchase-the date of the conveyance, and was altogeth- this is the dictum of every treatise on the er gratuitous! and that his testator had, on equitable doctrine of mortgages-Sparsimthe 6th of October, 1830, for the consideration see also Bloodgood vs. Zigly 2 Caine's cases of the sum of $100 then paid to Russell, fi--124 Longuet vs. Scaven 1. viz sr. 406-Newnally concluded all controversy concerning comb vs. Bonham 1st. Vernon 7-Manlove, the original contract; and lastly, pleaded the lapse of time.

On the final hearing, the circuit court dismissed the bill; and Russell has appealed to this court for a revision and reversal of the de

cree.

For reversing the decree, the counsel for the appellant will endeavor to maintain the following propositions :

1st. That the contract, as made and exhibited, was a mortgage;

2d. That Russell has not, by any act he has done, parted with his equity of redemption; and

3d. That his title to relief is not barred by time.

And, for establishing these positions in their numerical order, the appellant's counsel respectfully submit, to the consideration of the court, the following programme of argument as their Brief:

1. The considerations conducing to show a mortgage are of two distinct classes:-1st. Intrinsic. 2d. Extrinsic.

1st. Intrinsic Evidence.

vs. Bale & Bruton 2nd. Ib. 83. Chapman's ad'r vs. Turne 1 call 244. Robertson vs. Campbell 2nd. Ib. 953. Ross vs. Norvell 1. Washington 14-King vs. Newman 2. Munf'd 40. Thompson vs. Davenport 1. Washington 125. Robert's ad'r vs. Cox 1. Rand-121. Pennington vs. Hanby et al 4 Munf'd 140. Wilson vs. Carven 4. Haywood 93.-Haltier vs. Elinaud 2 Dess-571. Wharf vs. Howell 5. Binney 499. Dey vs. Duncomb 2. Johnson's chy R. 189. Blaney vs. Bearce vs. Grant R. 132. Harrison vs. Trustees of Philip's Academy 12 Mass. R. 457. Erskine vs. Townsend 2 Io 475. Taylor vs. Weld 5 Ib 100. Carey vs. Rawson 8 lb 159 Brown vs. Bement 8th. Johnson R. 150. Patterson vs. Clark 15. Ib. 205. Skinner vs. Miller 5. Litt R. 86Heytle vs. Logan 1. A. K. Marshall p. 629. Edrington vs. Harper 3. I I. M. 354-Morris vs. Nixon 1. Howard-Livingston vs. Story 9th and 11 Peters.

Some of these cases expressly, and most of them virtually decide that a writing or writings, importing an absolute sale with a power of defeasance-nothing else appearing-imply The defeasance was not, as pretended by a mortgage-whatever may be the form or D. R. Southard, purely voluntary; 1st. Be- terms of the contract; and that, in all such cause, if, as its date and recitals import, it cases, the burthen of proof aliunde devolves was executed simultaneously with the con- on the party claiming a conditional or defeasveyance, they are integral and essential consti-able purchase. Coote, in this treatise on morttuents of one entire contract; 2d. If the de-gages, 16th Vol. Law Lib. p. 13, considering feasance was not formally executed until a the authorities as to the recognition and valididay or days after the execution of the convey- tyof defeasable purchases confused and doubtance, it was, nevertheless, prepared and sign-ful, notices the case of Floyer vs. Livingston ed in fulfilment of the understanding of the 1. Pr. Wms. 268-and that of Miller vs. Lees parties in making their original contract, and 2. Atkins 494, sometimes cited in support of a refusal to execute it would have been a reck-such contracts, and not only shows that Ld. less fraud, against the meditated effect of Hardwicke confined such constructive sale to which there might have been relief; Maxwell a rent charge, and repudiated it as to the fee vs. Montacute, Prechy 526-Walker vs. Walk-in the land itself, but intimated that these two er, 2. Atkins 99.

This appears clearly from the deposition of Dr. Johnson, (see his answer p. 210 question 3rd) which is fortified by the bungling and incredible answer of D. R. Southard-and is made indisputable by the strong and almost conclusive improbability that such a man as J. Southard would voluntarily have given such a defeasance, after an absolute purchase in good faith, of such a tract of land, for a price so glaringly inadequate.

Then starting, as we think we have a right to do, with the postulate, that the conveyance and the defeasance are parts of one indivisible contract, just as if the defeasance had been

cases were decided on lapse of time and other peculiar circumstances, and not on the simple fact of an absolute conveyance and an accompanying defeasance.

If the general principle of construction, for establishing which most of the foregoing cases are cited, should be overruled or disregarded -as Deeds cannot be contradicted or explained by oral testimony, without proof of fraud, mistake, or illegality, rapacious money lenders might, and often would, impose on necessitous borrowers defeasable purchases from which they could never extricate their property by proof or by a precise compliance with the prescribed terms. The principle, for which

we contend, seems to us therefore to be as just other party, as a mortgage. In this case such and reasonable, as it is authoritative. efforts appear on the face of the papers. Look The fact that there is in this case no express at the superfluous repetitions, and redundant promise by Russell to pay the $4,929 81% to adjectives-such as "absolutely conveyed"Southard, is not sufficient per se to overrule "this agreement shall be at an end and null and the prima facie implication of a mortgage. Avoid"-" this agreement of resale, is condi contract, we admit, cannot be a mortgage, as tional and without a valuable consideration!" to one of the parties and not as to the other."and entirely dependent &c.,"-" and this There must be mutuality in the right of one agreement is to be valid and obligatory only, to redeem, and of the other to foreclose and upon the said James Southard, upon the puncmake his debt. tual payment, &c."

But it is not necessary to the existence of a What motive prompted all this superfluity mortgage that the reciprocal rights of the par- and tautology? It was neither necessary nor ties shall be coextensive or that they should useful, for any other purpose than to disguise run quatuor pedibus. It is sufficient that each or distort the real contract, as intended and party may enforce the contract as a mortgage. understood by Russell. It is like inserting This the mortgagee may do, although there is in a contract the declaration-" this is bona neither an express, nor a collateral undertak-fide, no fraud, is intended;" and which is, itself ing by the mortgagor to pay the debt to se- a significant badge of fraud, indicating that cure which the mortgage was made.

the party was thinking of fraud, and trying to This is shewn by many of the cases already conceal it; and, in this case, Southard's were cited-see also Wilcox's heirs vs. Morris 1. thinking of a mortgage and trying to elude it. Murphy 117-Conway's Ex's vs. Alexander 7. The provision, in the defeasance, for the reCranch 218-Hart vs. Burton 7. J. J. Marshall linquishment of Dower, should not have any 322-also Howell vs. Rice 1 Pr. Wim's 290-effect on the construction of the contract. King vs. King 3, Ib. 361-Powell on mort- Such relinquishment was as proper in the case gages p. 16-where in a note Mr. Coventry of mortgage, as in that of a sale-and had been says-a Bond and Covenant are said to be of amply secured by the covenant already noticed no use if the estate be ample." with its liquidated damages.

Considering, as the court will, the convey- Then stripped of all artifice and studied ance and defeasance as one entire document, drapery, what is the contract, properly conthe contract should be interpreted precisely sidered in its own nakedness? Is it not an as it would have been had both documents entire agreement to convey land, on the adbeen incorporated in the usual style, begin- vance of a certain sum, and to re-convey the ning with an absolute conveyance and con- same land on the return of that sum with accluding with a condition which might entitle cruing interest within a prescribed time? the conveyor to a re-conveyance. And, thus And, according to reason, as well as the citaconsidered, the entire memorial of the contract tions already made, is not such an agreement imports that Southard had advanced to Rus- prima facie to be deemed a mortgage for secursell a consideration estimated at $4,929 81% ing the repayment of the money advanced? --for which the latter had conveyed to the If the land, as is the fact, was worth more former a certain tract of land-the parties in- than the money, there was no motive for taktending thereby that the one might use the ing a bond or express promise to pay it-and money, and the other enjoy the land for four such an undertaking, was doubtless, not exmonths, and that, on payment of the money acted by Southard, because it was unneces with interest, within that time, the land should sary, and if made, would have been a strong be re-conveyed. Is not this, in its constructive badge of a mortgage. The omission of it may effect, a mortgage? Notwithstanding the elab- be evidence of a fraudulent design, but cannot orate effort of the Southards, and their Law-operate as decisive proof of a bona fide sale, yers to give it the semblance of an absolute instead of a mortgage. This is proved by sale, and a conditional repurchase, does it not, many of the cases herein before cited. in its substance import that the land was It is difficult to make such an entire conconveyed to secure the payment of the consid-tract for a conveyance and a conditional reeration advanced? conveyance, as will or ought to be construed Does it not amount, after all the ingenious a sale, and not a security, (see especially elaboration of disguises, to a loan on one side and a collateral security on the other?

Longuet vs. Scaven, Supra.) And, when there is nothing else but an absolute conveyIt is settled by many of the foregoing au- ance in form, on the advance of money, and a thorities that, whatever may be the form or covenant to reconvey on no other condition the words of a conveyance, it will be construed than the payment of the same sum with ina mortgage if designed or given as a security, terest, we doubt whether there is any adjudgor for the purpose of coercing or securing a ed case, now entitled to respectful considerapayment. The form is not essential-the tion, in which it has been decided that the intent is the vital spirit which fixes the cha- contract was not intended as a security. Such racter of the thing. Calling a contract we consider the modern and more rational a conditional sale does not make it so. doctrine-as most of the foregoing authorities Extraordinary efforts to give it that complex- conduce to shew-and as Coote intimates, ion are even evidence tending, and sometimes when he says:-(20th L. Lib'y p. 17)-" the strongly, to shew that it was intended, by the circumstance of an agreement to reconvey,