
    Columbia? November Term? 1812.
    Joseph Wolf, vs. James O’Farrel.
    Court of Appeals? Columbia. This motion is to-set aside a non-suit ordered by the district court of Orangeburgh? on the ground of a failure of necessary evidence to maintain the action. The action was trover? and conversion of a negro slave.
    
      The plaintiffs’ claim was founded on an instrument of r _ . . „ , , writing, containing a conditional contract of sale, by the owner of the slave, Snell, i o the plaintiff, by way of mortgage, to secure the payment of a sum of money lent by the plaintiff to Snell. By the terms of the contract, the slave was to remain in Snell’s possession until the day of payment, when, if the money was not paid, with interest, it should be lawful for the plaintiff to take possession of, and sell the slave' in satisfaction of the debt: but if the debt was satisfied at the day, the sale should be void. The writing was not sealed, but only signed by Snell. It was stated that the debt was unsatisfied after the day appointed for the payment thereof ’, and the plaintiff contends that by the legal operation of the contract, the mortgagee became proprietor of the slave, liable to the equity of redemption. Upon this statement, the papers was offered in evidence, to prove property in the plaintiff, and was rejected by the district court; in consequence of which the non-suit was ordered.
    Nott, J. This was an action of trover, to re-@over a negro slave, tried before judge Smith, at Orangeburgh. The plaintiff had taken a mortgage of the negro in question, from one Snell, redeemable upon the payment of a certain sum of money, on a, future day. Snell continued in the possession of the negro, and previous to the day of payment, sold him to the defendant.
    
      The presiding judge granted a non-suit? oii the ground that the mortgage did not vest such a legal right in the plaintiff as entitled him to maintain this action. I am? however? of opinionthat such a right did vest in him? and therefore the non-suit ought to he set aside. Every mortgage? prima facie? conveys a legal right to become void? on a condition subsequent? which it is incumbent on the mortgagor to prove. Whether the want of delivery, or any circumstances attending the transaction, afforded such presumption? or evidence of fraud? as would prevent the plaintiff front recovering on the merits? should have been submitted to the jury? but could not have been taken advantage of by way of non-suit. The motion? therefore? ought to be granted;
    CoLCodc? J. On the argument of this case? I was inclined to think that the opinion of the court below was correct? and that the mortgage should not have been given in evidence. But? On further consideration? I am induced to think a mortgagee? may maintain his action of trover against a third person. In England? the mortgagee may maintain his action even against the mortgagor; Douglas, 22. Kuch vs. Hall, 1 Term Rep. 382 — 3. Birch vs. Wright. and after the stat.4th of Jinn, which- does away the necessity of attornment? he may maintain his action or distrain for rent against a tenant? Douglas 279. Moss vs. Gallimore. But by our act of assembly the right of the mortgagee to maintain eject-* . , • . i ,7 -r, ment against the mortgagor is taken away. 1 vol. Jr. 65. Jt appears to me, if this remedy is not given, that the mortgages of personal property would be wholly ineffectual. In the case of Atkinson vs. Maling and others, (2 Term. Rep. 462.) the ship, which was recovered by the plaintiff, was ait sea when mortgaged, and, of course, no delivery could be made. It seems to be conceded, that the mortgagee is considered as being in possession, from the execution and delivery of the mortgage, in the same manner that the assigns of a bankrupt are considered to be in possession of the goods of the bankrupt as-signee, and may maintain trover for the recovery of them. 7 Term Rep. 312. The mortgagee is the absolute and true owner. 3 Cranch. p. 140 — 4. and 1 Vez. Ryall vs. Rowles. I am upon these authorities, and for these reasons, of opinion that the motion be granted.
   Bay, J.

Upon the argument of this case, I was rather inclined to think that the right of property was not absolute in the mortgagees, till after a foreclosure, or a sale under the mortgage, which in this country has been considered as tantamount to a foreclosure. But upon reconsidering this case, I am now very clearly of opinion that upon failure of payment of the money, or performance of the condition in the mortgage, the property becomes absolute in the mortgagee. Before the failure of payment of the money mentioned in the proviso, the legal estate is. still in the mortgagor, and only a conditional one in the mortgagee. But after failure of payment of the money, it is no longer conditional in the mortgagee, but absolute ; and it is gone in law from the mortgagor for ever, subject however in equity, at any time before foreclosure^ to the right of redemption, upon payment of principal and interest of the mortgage money. 2 Black. C. 158. 3 Bac. Tit. Mortgage, 635. See also also Tuckers and Palmers case, ante, argued this term. Taking it then for granted, that the property is absolute in the mortgagee after failure, it follows as a natural consequence that he may pursue his property wheresoever he can find it; for the right of property gives the right of remedy, and he may take it out of the possession of the mortgagor himself, or our of the possession of any .other person who may have it by transfer or sale, if he can procure such. possession peaceably; or, upon demand and refusal, may. maintain an action of tro-ver for it; for he who has the first mortgage shall prevail over all other mortgages or conveyances whatever. Equ. Cabr. 320. 3 Bac. 642.

The civil law is very full upon this right of the creditor, to pursue the thing mortgaged in the hands of any person in whose possession it may be found; 1 Domat, 343. &c. &c. and the common law in this respect is borrowed from the civil law.

It has been the custom, from time immemorial, in this country for the mortgagee, after failure of payment of the money mentioned in the proviso, to seize the negroes, or other chattels, and, after duly advertising, to sell them towards payment and satisfaction of the debt. And indeed, this custom seems to have given rise to the common covenant in almost every mortgage deed, to empower the mortgagee to seize and sell, and to return the overplus if any, to the mortgagor, which in fact, is only a declaration of the common law right which would exist without it. And, although it is usual and common to put such znortgages into the hands of the sheriff to seize and sell, yet he only acts as the agent of the mort-' gagees, and not in his official capacity of sheriff. This custom, however, is a very commendable one, as the sheriff of a district is always supposed to be highly trust-worthy, and a very proper person to conduct such sales. Upon the whole, I am of opinion that the non-suit should be set aside, and a new trial granted.

Grimkie, J. concurred with Bay, J.

Brevard, J. dissented.  