
    John E. Harmon vs. Thomas Short.
    R. being the owner of a slave, mortgaged him to H., to secure and indemnify him against liability as surety for R.; the slave was left in this state on R.’s plantation ; the mortgage was never recorded ; R. afterwards in Tennessee sold the same slave to S., who took an absolute bill of sale, and at the time arranged with R. a large portion of the purchase-money by a debt due to him by R., and received from R. an order for the slave in this state; but before he presented the order for the slave, he, after the purchase, without any K new consideration, gave R. a written agreement, that R. by a certain day might redeem the slave. On presenting the order in this state, the slave was on R.’s plantation, but on the night succeeding the presentation escaped therefrom into H.’s possession. S. sued H. in detinue for the slave. Held, that S. was entitled to a recovery in the action at law.
    A mortgagee of personal property has the right to the possession of the property, and may recover it in an action at law against the mortgagor, and those claiming under him, who have no remedy except by bill in equity to redeem.
    Whether a payment made by the settlement of an antecedent debt, constitutes a purchase for valuable consideration ; — Quare l
    
    It seems that if a mortgage of personal property be executed to indemnify the mortgagee against suretyship for the mortgagor, and the mortgage be never recorded, and the mortgagor retains possession of the personal property, and afterwards sells it to a third person for a valuable consideration without notice of the previous mortgage, the purchaser will hold it free from such mortgage.
    In error from the circuit court of Carroll county ; Hon. Francis M. Rogers, judge.
    Thomas Short brought an action of detinue against John E. Harmon for a slave, George; the defendant plead, 1, non detinet; 2, that before the plaintiff’s purchase of the slave, to wit, on the 15th of November, 1844, one David Rutledge, then the lawful owner of the slave, mortgaged him to the defendant by his deed of that date, to secure and indemnify the defendant against the sum of four hundred and eighty .dollars, which the defendant was bound to pay as surety for Rutledge, and that by virtue of the mortgage he was entitled to the possession of George. To the second plea, the plaintiff responded that on the 5th of March, 1845, he purchased George from Rutledge for sis hundred dollars, without notice of the defendant’s mortgage, which was neither acknowledged by Rutledge nor recorded; and that George, when the plaintiff bought him, was in the possession of Rutledge. To this replication the defendant rejoined, that the plaintiff was not a bona fide purchaser of George; upon which issue was tendered and taken.
    A jury were empanelled, who, on the 16th of May, 1846, found a verdict for the plaintiff; the defendant moved for a new trial, which was refused, and he excepted.
    The plaintiff’s evidence consisted of a bill of sale from Rutledge of the slave to him, dated March 5th, 1845, for the sum of six hundred dollars; and the testimony of one Alexander, who proved that he was present when the bill of sale was made; it was made in Tennessee on the day of its date, and the negro was then in this state, in the county of Carroll, in the possession of the brother of Rutledge, who was his agent; that the agent of the plaintiff came down to Carroll county to obtain possession of the negro, by virtue of an order given by Rutledge to him ; which was read to the jury in these words, viz.:
    “Mr. William Rutledge — Sir, please deliver to the order of Mr. Short, my boy George (big George), as I have sold him to said Short; by so doing you will oblige me. March 5, 1845.
    
      “ David Rutledge.”
    That when the agent of Short presented the order to William Rutledge, the negroes came out of the field, George with the rest, and George was pointed out as the negro sold. The next morning Harmon came over to the plantation, and stated that he had the negro, and the agent could not get him.
    The defendant then read this instrument to the jury, -viz.: — “I have this day purchased a negro boy of David Rutledge, named George, for which I have given six hundred dollars;, and the said David Rutledge is to have the privilege to redeem 'said negro boy, by paying me the above sum of six hundred dollars, by the first day of January, A. D. 1846, to which I bind myself, and administrators, and assigns, this the 5th day of March, 1845. Thos. Shout.”
    Also the following note :
    “ I promise to pay David Rutledge one hundred dollars ; it being the balance due for a negro boy George ; which I am to pay when said boy is delivered to me this the 5th day of March, A. D. 1845. Thos. ShoRt.”
    Alexander then proved that when Rutledge, made the bill of sale, he was indebted to Short in the sum of five hundred dollars, which Short had been compelled to pay on execution as surety for Rutledge; the consideration of the bill of sale was this five hundred dollars, and the one hundred dollar note above; before the execution of the bill of sale, nothing was said about redemption, and the witness considered it an absolute sale; about an hour afterward, Rutledge remarked to Short, the slave was a family servant, and he disliked parting with him ; and Short replied, that he could redeem him ; upon which, the agreement for redemption was written voluntarily on the part of Short.
    The plaintiff asked the court to instruct the jury ;
    1. That if they believe from the evidence, that Short released David Rutledge from a debt of five hundred dollars, and gave him a note for one hundred dollars, then Short was a purchaser for valuable consideration.
    2. The agreement by Short to permit Rutledge to redeem the negro amounted to nothing, and was not to be regarded by the jury, unless they believed the money was paid to Short at the time specified in the agreement to redeem.
    3. Unless the agreement to redeem by Rutledge was executed at the time of the bill of sale, and was part of that transaction, it is void for want of consideration.
    4. That the privilege to redeem in this case does not make the first bill of sale a mortgage, unless it was entered into as a part of the first contract, and was supported by the same consideration which upheld the bill of sale.
    These instructions were given.
    And the following, asked by the defendant, refused:
    
      1. That the condition to redeem the slave constitutes the agreement a mortgage.
    2. That if the jury believe from the evidence that the mortgage was executed to secure a preexisting debt, and no money was paid or advanced at the time, the plaintiff is not a bona fide purchaser.
    The defendant prosecutes this writ of error.
    Sheppard, for plaintiff in error.
    1. Short was not a purchaser without notice. Facts which are sufficient to put a party upon inquiry, are equivalent to notice. The possession of the property being with William Rutledge, as an agent with power to mortgage, at the time of the sale to Short, was alone sufficient for such purpose. If Short had used ordinary diligence, he could have ascertained from W. Rutledge that a mortgage had been made.'
    It was gross laches on the part of Short, when his vendor was not in possession, not to make inquiry from William Rutledge as to the condition of the title. Dixon and Starkey v. Doe, ex dem. Lacoste, 1 S. & M. 107. See also Nantz v. McPherson, 7 Mun. 599.
    ' 2. By the expression “ purchaser for valuable consideration,” in the registry act was meant bona fide purchaser. See opinion of Kent, in case of Jackson v. Burgott, 10 J. R. 462.
    He must not only purchase without notice, but in good faith. The rule of construction under the registry act is the same at law as in equity, and if the party cannot show in the view of a court of equity that he is a bona fide purchaser, he cannot protect himself against legal rights acquired under an unregistered deed. 6 Wend. 213.
    The mere receiving a conveyance in payment of a preexisting debt is not sufficient to give him a preference over an unregistered mortgage. He must advance a new consideration, and be placed in a worse situation than he would have been, in case the conveyance had not been made.
    
      Dickerson v. Tillinghast, 4 Paige, 215, is an authority directly in point, and decides the cause.
    
      This case has been cited, and the same principle confirmed in case of Uphsaw et ux. v. Hargrove, 6 S. & M. 286.
    This principle is cited and confirmed in case of Harney v. Pack et al. 4 S. & M. 257.
    3. Lastly. Short never had possession of the property. The witness Alexander, states, that the .slave was pointed out, but on the next morning, Harmon, the mortgagee, refused to deliver him up.
    The second instruction asked by defendant’s counsel in court below was in accordance with these principles, and the court erred in refusing it.
    
      E. S. Fisher, for defendant in error.
    1. The counsel for the plaintiff in error urges that the bill of sale and the defeasance are parts of the same transaction ; and that the bill of sale is thereby converted into mortgage. To sustain this position, the bill of sale and defeasance should have been executed at the same time, moved by the same consideration, or, in other words, Rutledge should have executed the bill of sale, in consideration of Short’s executing the defeasance, otherwise there was no consideration for the latter. See 1 Cain. R. 583; 12 John.' R. 190, 397.
    2. But admitting that the subsequent instrument is supported by a consideration, it does not constitute the billof sale a mortgage. It is a mere right to redeem or repurchase the negro by a particular day. See Hickman v. Cantrell, 9 Yerg. 172.
    If the two instruments make the bill of sale a mortgage, the defendant below still had no rights in a court of law. As the true question to be considered would be, whether the negro was received as a mere security for the payment of a debt, or was sold to Short with a mere right to redeem. If he was received as a mere security, the relief could only be had in a court of equity. But we insist that the utmost right the defeasance conferred upon Rutledge, was a right to redeem, in which case a strict compliance, with the terms of the instrument, should have been observed.
    3. As to the sufficiency of the consideration, it has never been doubted that when property is taken in payment of a debt, it is equivalent to paying the amount of the debt. Short had paid five hundred dollars as security for Rutledge; this made the latter his debtor to that amount. The negro is taken in payment of the five hundred dollars. What is the difference in taking the negto in payment, or having him sold to a third person and taking the money? This point has been settled in the case of Upshaw et ux. v. Hargrove, 6 S. & M. 292. But we insist that the plaintiff in error cannot raise this question till he proceeds to foreclose his mortgage, when, if he choose, he can urge his superior equity, provided he has any. The negro was delivered to Short, which was a complete execution of the contract between Short and'Rutledge, and completely vested the title in the former. The plaintiff, therefore, must rely upon his superior equity, and show in a court of equity, when he seeks payment of his mortgage, that it is supported by a consideration superior to the bill of sale.
    
      Sheppard, in reply.
    The plaintiff, by his replication, does not make an issue of non est factum as to said mortgage, but replies with matter of avoidance, that the mortgage deed was not acknowledged, or legally proved and lodged for record, and was not recorded; and that he was a purchaser without notice of the existence of the mortgage.
    This replication admits the execution of the mortgage and all the matters of the plea, but avoids the effect by alleging, that it was not acknowledged or proved and lodged for record, and was not in fact recorded.
    The defendant, his rejoinder, again admitted that the deed was not acknowledged, and proved and lodged for record, as the statute required, but avoids this admission by showing, that Short was not a bona fide purchaser, and had advanced no new consideration. .
    It will thus be seen, that the true issue submitted to the jury was, whether Short had purchased under such circumstances as would enable him to defeat our bill, because it was not acknowledged or proved as the statute required, in order that it should be recorded.
    The execution of the mortgage was a clear admission in the pleadings of the cause, and according to the general rule, required no proof on the trial. The party who puts himself upon one issue, admits all the rest. “ Qui non negat, fatetur,” is the maxim as applied to pleadings at law.
    In case of Briggs v. Dorr, 19 J. R. 95, defendant plead a release made by nominal plaintiff; plaintiff replied an assignment and notice to the defendant before the release; defendant rejoined, protesting that no assignment was made, and denying assignee’s interest; it was held that replication was admitted, and defendant would be required to prove that assignee had no interest; and that fact being admitted, no evidence need be offered on trial in reference to it. 1 Phil, on Ev. 170; 2 Co wen and Hill’s Notes, part 1, note 331, p. 444.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of detinue in the circuit court of Carroll county, brought by Short against Harmon. The plaintiff claimed by a purchase from one David Rutledge, on the 5th of March, 1845. The defendant claimed under a mortgage from Rutledge, executed in November, 1844, which had never been recorded. There is no proof that Short had notice of the existence of- the mortgage, until after his purchase. Five hundred dollars of the purchase-money were settled by Short at the time of the purchase, and his note given for the balance, of one hundred dollars. The transaction between Rutledge and Short took place in Tennessee, and concurrently with the bill of sale Rutledge gave an order for the slave, who was on his plantation in this state, under the management of his brother. After all this, and without any new consideration or agreement, Short gave a written instrument to Rutledge, granting him right to redeem the slave by the 1st January, 1846.

When the order was presented for the slave, he was on the plantation in Mississippi, but during the succeeding night he got into the defendant’s possession. There was a verdict and judgment for plaintiff in the court below.

On this state of facts, we really see no room for doubt. The plaintiff purchased without notice, actual or constructive, of any adverse title. He took an absolute bill of sale — the order which he also took, showed that he was to have immediate possession of the slave. We think the instrument he gave to Rutledge, at most converted it into a purchase, with liberty to re-purchase; but even if it amounted to a mortgage, the plaintiff has the right to recover at law, and the mortgagor, or those claiming under him, are left to a remedy in equity upon bill to redeem. 4 Kent’s Com. 144, 153.

The cases of Upshaw v. Hargrove, 6 S. & M. 286, and Dickinson v. Tillinghast, 4 Paige, 215, do not apply, even if payment made by the settlement of an antecedent debt, does not constitute a purchase for valuable consideration.

In this case the mortgage was executed “to secure and indemnify” the defendant below, against loss which might arise from his .suretyship for the mortgagor, and it is manifestly the intention of the instrument, that he was not to have possession of the slave, until he was subjected to loss. It does not appear that he has paid anything, or is in any danger on account of his undertaking. The plaintiff below had both the immediate right of possession and of property, unless as. against a better legal outstanding title. From all that appears, Harmon may never have the debt to pay, and may therefore never have any right to the slave. The-mere equities of the parties cannot be considered or regarded in a court of law.

The judgment is affirmed.  