contract; and the defeazance having suspended the right of the vendee, to take possession of them, until the death of the vendor, the statute of limitation did not begin to run until the death of the vendor. Effect of sale by the 4. DORSEY V. GASSAWAY. June T. 1809. 2 Har. & Johns. Held by the court, Chase, Ch. J., that if a mortgage of slaves mortgagor. was subsisting, and the mortgagor, claiming the absolute ownership of them, sold them for a full consideration, although as to the mortgagee the sale would transfer only the equitable interest, yet as between the vendor and vendee, the operation of the contract would be to pass the absolute ownership in the slaves to the vendee, and, notwithstanding the after discharge of the vendee, under the insolvent law, and his purchase of the slaves from the mortgagee, his subsequent acts, in perfecting his title to the slaves, will enure in law to confirm, and not to defeat his contract. * A sale by gor passes chattels to 5. DORSEY V. GASSAWAY. June T. 1809. 2 Har. & John's. Rep. 402. Per Cur. Chase, Ch. J. If a mortgage of slaves was subthe mortga- sisting, and the mortgagor claiming the absolute ownership of the title to them, sold them for a full consideration, although as to the mortthe vendee gage, the sale would transfer only the equitable interest, yet as as between between the vendor and vendee, the operation of the contract the parties. would be to pass the absolute ownership in the slaves to the vendee. A mortgagor is the owner against the world, and only subject to the lien of the mortgagee. And if the thing mortgaged be land he is supposed to be seized before foreclosure. 6. HUGHES V. GRAVES et al. Spring T. 1822. 1 Little's Rep. 317. female the execu are as to the de Palmer mortgaged two slaves to Hughes, Fanny and Esther. The chilPalmer afterwards sold Fanny to Walker, and he also sold Esther dren of a to Graves. The mortgage debt not being paid, Hughes filed slave mortgaged, a bill against Palmer, Walker, and Graves. Walker, in his born after answer, admitted that he purchased Fanny; but averred it was tion of the without notice of the mortgage. The court pronounced a decree mortgage, directing the sale of Fanny. Hughes filed a supplemental bill, much liable stating the proceedings on the former bill, and averting, that mand ofthe Esther, when purchased by Graves, was of little or no value, and mortgagee soon after died; and that Fanny, subsequent to the execution of herself. the mortgage, had two children, which were claimed by, and in the possesession of Walker, and prays that they may be delivered up to satisfy the balance of the mortgage debt. But the court decreed that Graves, the purchaser of Esther, should pay the balance of the mortgage debt. Per Cur. There can be no doubt but the slave Fanny was liable to the mortgage. Walker having been a purchaser without notice, in fact, of the mortgage, is an immaterial circumstance. For the mortgage having been duly recorded, the law will presume notice. Besides, the legal title was by the mortgage vested in Hughes, and the want of notice only protects a purchaser against a latent equity, and not against the legal title. Nor can there be any doubt but that the children of Fanny, born after the execution of the mortgage, are as much liable as Fanny herself; for it is a settled rule, that the offspring belongs to the owner of the mother, partus sequitur ventrem being a maxim of the civil law. 7. TURNBULL v. MIDDLETON et al. Dec. T. 1831. Walker's as the slave gagor of slaves not hire, on liable for forfeiture Per Cur. Black, J. Black, J. The court are unanimously of opinion, The mortthat where slaves are mortgaged for the payment of a debt, the mortgagor, or other person having the slaves in possession, is liable for hire after the forfeiture of the condition of the mortgage, by the nonpayment of the money on the day due; that the off-dition of spring of such slaves, born after such forfeiture, are not subject to gage. lien under the mortgage. of the con the mort The right of redemption. That, in this case, the mortgagee having released the other slave, in the mortgage mentioned, for a much less sum than their real value, and being more than sufficient to have fully satisfied the debts, and having retained only $700, is evidence of combination between mortgagor, and mortgagee to prejudice the rights of an innocent purchaser of one of the slaves mortgaged; and would be so great a hardship on this innocent purchaser, for valuable consideration, that the court will not enforce the mortgage lien. 8. DABNEY AND OTHERS, EXECUTORS AND LEGATEES OF SADLER V. Tucker, J. The bill states, that Green, being indebted to Sadler, on the 7th of March, 1778, executed a deed to him for six negroes, to secure the payment of the debt, and that Sadler executed at the same time a defeazance, whereby he agreed that, on payment of £126, 11s., (the debt before mentioned,) in three years, the right of Sadler to the slaves should cease. That Green was to keep possession of the slaves, paying interest on his debt, for which Green at different times gave his notes, under the name of hire for the slaves. That Green being absent from his home for a short time on business, in December, 1789, Sadler took out an attachment on his estate, which was levied on these negroes. Judgment in the attachment suit was obtained against Green, and the slaves sold under an execution issued upon that judgment; and that they were all purchased by Sadler for £159. The object of the bill is to set aside the sale and redeem the negroes. The defendants admit that Green was indebted to Sadler at the time he executed the bill of sale, which they insist was an absolute conveyance and transfer of the property both at law and in equity. They then proceed to state, by way of defensive allegation, that Green, before suing out the attachment, had absolutely absconded, and was on board a vessel with the negroes, and other effects, six miles from his home, when he was overtaken by the deputy sheriff, in a calm, who levied the attachment on the slaves. This fact is proved by the testimony of two witnesses; one of whom (the deputy sheriff) says, that Green, after some conversation, observed, that if there had not been an unlucky calm, he should have been far enough out of reach; and thinks he said he should have been in Carolina. That the bill of sale given by Green for the negroes, was intended only as a security for his debt to Sadler, and not as an absolute conveyance, or even a conditional sale, is, I think, obvious, not only from the papers themselves, but from the admission in the answers, that there was a previous debt due from Green to Sadler, which distinguishes it from the case of Chapman v. Turner, 1 Call's Rep. 280.; and brings it within those of Ross v. Norvell, 1 Wash. Rep. 14.; and Robertson v. Campbell and Wheeler, 2 Call's Rep. 424. I consider the original transaction between the parties, therefore, merely as a mortgage; and I hold, that if a creditor by bond, or other legal right which he is enabled to prosecute with effect at law, obtains from his debtor a mortgage by way of security for the same, and then prosecutes a suit at common law, and having obtained judgment for his debt, levies the execution upon the mortgaged property, which is sold by the sheriff, and purchased by the creditor, the debtor's right to redeem is not extinguished by this proceeding at law, but his equity of redemption continues as fully and completely as before the execution was levied, or the judgment obtained. And this upon principle; for the creditor having accepted of the security for his debt, is bound by every condition that a court of equity might impose upon him; nor can he by his own act absolve himself from any such equitable obligation. The case of Lord Cranstown v Johnson, 3 Ves. jun. 170., is a much stronger case than the one I have put; and shows that a creditor purchasing property, sold under execution to pay his own debt, may, under circumstances, be considered as holding the same only as security for his debt, and the charges he has been put to. But there are several features in this transaction which give to this ⚫ particular case a very different complexion. Green is proved to have absconded fraudulently with his family and property, among which were, or a considerable part of these slaves, and had actually embarked on board a vessel, and proceeded some distance on his way to another state, or some other quarter of this state, where he could conceal himself and his property from the very creditor to whom he had pledged it as a security. One of the soundest maxims of equity is, 'that he who hath committed iniquity, shall not have equity.' Francis' Max. 2.; that is, as explained by Fonblanque, b. 1. c. 2. s. 13, note (p,) where such person is, as in the present case, plaintiff. Willingham v. Joyce, 3 Ves. jun. 168., is not so strong a case as this; for here the present plaintiff did all in his power to defraud his creditor. The latter was driven to seek redress at law. Whether the proceedings in the cause were regular or erroneous, cannot be inquired into in a collaterate way. The judgment must On a sale by the mortgagee be taken to be right, the sale lawful, and the purchase by the creditor the same as the purchase by any other person. The fraud of Green has utterly deprived him of the aid of a court of equity, which ought never to interpose to deprive a fair creditor, as Sadler was, of a legal advantage, gained in a due course of law, in consequence of a most flagrant attempt on the part of the debtor to defraud him. The staleness of the claim, postponed till after Sadler's death, and barred at law by the act of limitations, furnishes additional reasons in support of this opinion. The other judges concurred in this opinion. 9. FIELD V. BEELER et al. Spring T. 1813. 3 Bibb's Rep. 18. Held by the Court, Boyle, Ch. J., that upon a bill to redeem a slave pledged to secure the payment of money, it is sufficient to make the executor of the mortgagee a party, and it is unnecessary to make the heirs parties. 10. MOORE'S EXECUTOR V. WILLIAM AYLETT'S EXECUTORS, AND PHILIP AYLETT. ginia Rep. 29. In this case the court of appeals decided that if it be agreed between a mortgagor and mortgagee, that, in case the debt be he must ac- not paid, the mortgagee may sell the property; and in consequence the surplus thereof, he sells without proof of fraud, he is accountable to the count for mortgagor for the surplus of the sum for which he sells above the . amount of the debt, with interest on such surplus until payment; but not for profits, unless he appears to have received them previous to the sale, nor for the value of the property at any subsequent time. The pos session of forfeiture 11. HEAD V. HOBBS et al. April T. 1829. April T. 1829. 1 J. J. Marshall's Held by the court, Robertson, Ch. J., that possession of a mortthe mortgagor, even after forfeiture, is not per se evidence of fraud; when gagor after the mortgage or conditional sale is good in the beginning, it will is not fraud continue good in law, notwithstanding the possession of the mortgagor or the vendor. See Hamilton v. Russel, 1 Cranch's Rep. 309.; M'Gowan v. Hay, 5 Little's Rep. 243. per se. |