
    
      John A. Satterwhite v. R. E. Kennedy, administrator.
    
    The mortgagee of slaves may, after condition broken, enter upon the premises of the mortgagor, in the night, and seize the slaves, if he can do so without violating the criminal law.
    A mortgage is a specific lien, and a judgment is a general lien. Both may be consistently pursued until the debt is satisfied.
    
      Before Feost, J. at Chester, Spring Term, 1849.
    This was an action of trespass de bonis asportatis.
    
    The declaration charged that the defendant, in the night time, and in a tumultuous manner, to the terror of the plaintiff and his family, entered the plaintiff’s premises, and carried off negroes. By a special plea, the defendant justified the taking, under a mortgage of the said slaves by the plaintiff, to A. DeGraffenreid, in his life time, to secure the payment of a note for $7,049, payable to A. D. one day after date, which was the 14th March, 1843; and that the condition of the mortgage being forfeited, the defendant did peaceably and quietly enter the plaintiff’s premises, and take the said negroes, for satisfaction of the said debt. Issue was taken on the charge in the declaration, that the negroes were taken unlawfully, &c. in the night time.
    It appeared that Kennedy having heard a rumor (which, however, several witnesses said they had not heard) that the plaintiff was going to carry off the negroes, went with a constable one Saturday night, in the spring of 1845, to the negro quarters of the plaintiff, and took away the mortgaged negroes. Kennedy had a gun — they made no noise, and the plaifttiff did not know that the defendant was there, until after the negroes had been carried away. Monday following, the plaintiff gave security to the defendant for the forthcoming of the negroes, and they were restored to him. At the tiihe the negroes were taken, the plaintiff had planted oats, and prepared a portion of his land for planting. On the 18th March, 1845, two days before the seizure of the negroes under the mortgage, the defendant had commenced an action on the note. In addition to the mortgage of the negroes, the defendant had a mortgage of the plaintiff’s plantation to se-cute his debt.
    X Tread. 143.
    It was ruled that, by the forfeiture of the condition of the mortgage, the title to the negroes became absolute in the intestate, and in the defendant, his administrator, so that he might seize and take them as his own proper chattels; and that if the owner of chattels be guilty of force or unlawful conduct in the seizure of them, he may be proceeded against by indictment, but is not liable to an action of trespass, for taking his own property. It was further held that the commencement of an action on the note did not bar the defendant’s remedy under the mortgage. A non-suit was accordingly ordered.
    The plaintiff appealed, and moved the Court of Appeals to set aside the non-suit, on the following grounds, viz:
    1. Because, from the evidence given in the case, the plaintiff was, according to the rules and practice of this Court, clearly entitled to have his cause submitted to the jury. And his Honor, the presiding Judge, could not legally order non-suit against the will of the plaintiff.
    2. Because the defendant had made his election in having brought an action of debt, for the mortgaged debt, two days before the seizing of the negroes by himself and his agent, armed with guns and pistols, at a dead hour on Saturday night.
    3. Because the plaintiff, as to the negroes mentioned in the pleadings in the case, stood in the relation of a quasi tenant at will, of the defendant, who could not legally put an end to that tenancy, in the middle of the year, without notice.
    4. Because, from the proof, the defendant appeared to have acted from improper, illegal and unjustifiable motives, on which the jury should have been permitted to pass, and, therefore, the non-suit should be set aside.
    Thomson, for the motion.
    Gregg, contra.
   Evans, 3.

delivered the opinion of the Court.

Ever since the case of Wolfe v. O'Ferrell, decided in 1812, the mortgagee has been regarded as the legal owner of the chattels included in the mortgage. If there be a covenant in the mortgage deed, that the mortgagor should retain possession, that will restrain the mortgagee from disturbing his possession until the condition is broken. But such a covenant is not assignable, and as to all other persons, the mortgagee is the owner before there is a breach of the condition. This was decided in Spriggs v. Camp and Bellune v. Wallace. In this case the day of payment was passed, and the legal estate unconditionally vested in the defendant as administrator of DeGraffenreid, the mortgagee. The plaintiff had a mere permissive possession, determinable at any time by the defendant. The rule of law is not doubted that the legal owner may, at any time, take possession if he can do so without violating the criminal law. Unless in very extraordinary cases, he does not subject himself to a civil action; If he may take possession of his own, I do not see any reason why he may not do so in the night as well as the day. If a landlord cannot distrain at night, that depends either on some ancient statute or some rule of expediency, which has no application to this case. It might often happen that the property would be taken beyond his reception, unless he could seize it when and wheresoever found.

2Spears, 187. 3 Rich. 80.

I do not perceive that the doctrine of election has any thing to do with the case. A creditor shall not have two satisfactions for the same debt, but there is no inconsistency in his pursuing two remedies. If one produces satisfaction, that is a bar to the other. A mortgage is a specific lien, and a judgment is a general lien. Both may be consistently pursued, until the debt is satisfied.

It may be that, in this case, the defendant’s conduct may have been unneighborly, and morally viewed, even “improper” and unjustifiable, but there was nothing in the evidence which made it illegal, so as to require that the case should have been submitted to the jury. The non-suit was proper- • ly ordered, and the motion to set it aside is dismissed.

O’Neall, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion refused.  