
    Whitmore vs. Parks and Jackson.
    1. A mortgage is regarded in equity, only as a security for the payment of a debt, and the mortgagee is not entitled to have mortgaged slaves delivered to him specifically; nor is he entitled to have a decree for an account of hire. The court should ascertain the debt, and direct a foreclosure of the mortgage, and a sale of the slaves for the satisfaction of the debt.
    
      2. Where a mortgagee is in possession of slaves mortgaged, he ig liable to account to mortgagor for the hire of such slaves.
    3. Whitmore & Trotter were partners in trade, and on the dissolution they divided the effects,and agreed each to pay one-half of their joint liabilities: To secure Whitmore against the payment of more than his half of the said liabilities, Trotter executed and delivered to him a -deed of mortgage on certain slaves: Held, th at there was nothing in the relation of these parties, nor in their joint liability for the partnership debts, which rendered this mortgage fraudulent anclinvalicl against the creditors of Trotter.
    4. An execution creditor is not bound to refund to the purchaser at execution sale, the money which he has received from such purchaser, if the title to the property pur- . chased should fail.
    This bill was filed in the chancery court at Sommerville, by Whitmore against Parks and Jackson in his own right, and as the administrator of Trotter, deceased, praying a decree for the delivery of certain slaves and for an account of hire, or that their value be paid to him or other relief.
    Whitmore & Trotter were partners in merchandize. They dissolved and divided the effects of the partnership between them. They still, however, owed debts to about the sum of $5000, created by the purchase of goods. Whitmore took a deed of mortgage of six slaves, the property of Trotter, for the purpose of securing him against the payment of more than his share of the liabilities for their Eastern debts. This was duly proven and registered. Trotter absconded to Texas and died there, leaving Whitmore to pay almost the entire sum due their creditors, a large portion of which he did discharge.
    Trotter owed Parks the sum of $698, and Jackson the sum of $850, debts existing prior to the mortgage. Parks and Jackson procured attachments against Trotter’s estate, (previous to his death,) and they were levied on the negroes mortgaged to Whitmore and sold, and Jackson became the purchaser at about the amount of the two executions.
    Whitmore filed this bill. The defendants answered, impeaching the deed for fraud, &c. &c. Replications were filed and proof taken.
    It came on to be heard before chancellor McCambell, at the November term, 1841. The chancellor being of opinion that the mortgage was not fraudulent but valid; and that Whitmore “had paid or was liable to pay more than twice the value of the slaves” mortgaged, decreed that the slaves should be delivered up to him, and that the clerk and master should take an account of hire. He also decreed that Parks should refundió Jackson the amount of money which Jackson had paid to him, &c. &c. Parks appealed.
    
      J. C. Humphreys and Jones, for complainant.
    
      H. G. Smith, for Parks.
    Generally where the remedy at law is unembarrassed and complete, the court of equity has no jurisdiction. But equity will interfere and protect the property and possession of the master to his slaves. 4 Yerg. 84: 5 id. 142: 6 id. 25 10 id. 40.
    The jurisdiction is founded on the relation of master and servant, on the humane policy of cultivating and preserving-mutual affection and attachment between them, and on the principle that “property in moral, intellectual and social qualities, in skill, fidelity and gratitude,” is not susceptible of pecuniary measurement and cannot be compensated in damages.
    No such relation, policy or property, subsists in the present case. The right of the complainant is measurable by money; pecuniary damages will compensate it.
    The instrument under which the complainant claims, is a mortgage. It was made as a security for money, not to convey the possession and use'of the slaves. His property by virtue of it, is a naked legal estate; an interest in their pecuniary value, not in their affection and services. His right is not to the enjoyment of the slaves, but to the money or a portion of it, produced by the sale of them. If restored to him, it is for the purpose of sale; he cannot retain them. He invokes the jurisdiction of the court, to enable him to convert them to money, and the ground on which this jurisdiction rests, is to enable the master to keep his servant. Thus the remedy authorized and designed to prevent a sale, is employed to enable the complainant to make a sale.
    It seems clear, therefore, that the jurisdiction to try such rights, does not exist in chancery. The case falls within none of the principles on which it is sought to be sustained. Pecuniary compensation can be made to the complainant. His remedy is clear and complete at law: to the law, therefore, he ought to be turned.
    2. Admitting that chancery will entertain jurisdiction on a naked legal title given as security for money, it is insisted that the right of property in the complainant, is not so free from suspicions and doubts as is requisite to justify the interference of the court.
    [Mr. Smith here summed up what he regarded as the indicar tions of fraud.]
    3. No decree can be made in favor of Jackson against Parks, for Jackson purchased under his own as well as Parks’ execution, neither of which were enjoined, and an execution purchaser has no remedy for failure of title against the plaintiff or the sheriff.
    
      Scruggs, for Jackson.
   Reese, J.

delivered the opinion of the court.

Complainants Whitmore & Trotter were partners in trade. Upon the dissolution of the partnership, each received and appropriated an equal share of the debts and other effects belonging to the firm. Afterwards, the partners being still indebted for goods purchased in the Eastern cities, Trotter gave to the complainant a mortgage upon certain negroes to secure him against any payment of those debts he might have to make beyond the one-half for which, as between them, he was liable. Trotter subsequently absconded to Texas, and the defendant Parks having attached the negroes in question, as a creditor of Trotter, this bill was filed to restrain the sale of them. Upon the coming in of Parks’ answer, the chancellor dissolved the injunction theretofore granted, and the negroes, upon Parks’ execution, and upon another execution sued out by Jackson, were sold at public sale, and Jackson became the purchaser for an amount equal to the two executions. And, thereafter, Trotter having died, and the said Jackson having administered upon his estate, he was made a party in that character to this suit, and in his own right, as the purchaser and possessor of said mortgaged slaves.

The complainant having been compelled to pay a large amount of the debts for which 'Trotter was liable, the chancellor, at the hearing, by his decree declared, that he was entitled to have delivered to him, the mortgaged slaves, and to have an account for the value of their hire; and he further declared, that the sale of the negroes by the executions of Parks and Jackson having been wrongful, Jackson the purchaser of the ne-groes at the sale, should have refunded to him by Parks the amount paid on his execution. An attempt has been strenuously made, in the proof, and in the argument, to assail the mortgage deed on the ground of fraud, but we think altogether without success.

We think the i-elation of the parties, and the attitude of their affairs, at the time of its execution, furnish no grounds for its impeachment ; and subsequent events have shown that on the part of complainant, it was an act of just and necessary precaution. The decree, however, in omitting to direct an account to ascertain the amount for which the mortgaged property was liable, by reason of the larger payments, on the part of complainant, towards the partnership debts, than were made by Trotter and in omitting to direct a foreclosure of the mortgage and sale of the negroes and in ordering' an account to be taken of the value of their hire, is clearly erroneous.

The mortgagee is not entitled to have the slaves delivered to him specifically, nor is he entitled to have any account for the value of their hire. In this court the mortgage is looked upon as a security only for the debt, and the corpus of the property only, and not its hire or rents and profits, when the mortgagee is out of possession, constitutes the fund for its satisfaction. If in possession, so far from being entitled to the beneficial enjoyment of hire, or rents and profits, he is liable to account for them to the mortgagor.

The decree in favor of Jackson against Parks, is also clearly erroneous. There is no peculiar relation between them in this case, out of which an equity in favor of Jackson against Parks-could arise. The executions of each was levied upon the property and Jackson became the purchaser-. There is no principle which would maintain the decree in this respect, unless we were prepared to hold, that in every instance of an execution sale, the execution creditor is a guarantor to the purchaser of the title to property levied on and sold. So to hold, would be to introduce a new principle in conflict with the long established and well settled opinions on this subject, of all our courts, of the profession, and of the community. The decree in this particular, also, must be reversed.

The costs of the complainant, and of Parks/ in the court below, must be paid by Parks, and the costs of Jackson by himself. In this court, the costs will be paid out of the mortgage fund.  