
    
      S. S. Hogan v. Wm. E. Hall, ex'or of Elisha Jones, Dorcas Hall, Allen R. Crankfield and Jemima, his wife, and Judith Jones.
    
    Where a principal gave an absolute bill of sale of certain slaves to his surety, with a verbal understanding that it was to operate as a mortgage to secure him against liability, and the surety, after paying the debt of his principal, had taken and retained possession of the slaves for more than two years--the Court held that the claim of the principal was barred by the Act of 1712.
    Where a creditor had agreed to take land from his debtor at a certain price, in part payment of the debt, and the land had been sold at sheriff’s sale, to strengthen the title, and purchased at a nominal price and taken possession of by the creditor — there being strong evidence of a settlement having been after-wards had between the parties — after ei'ght years’ acquiescence on the part of the debtor, the Court refused to disturb the title after the death of the creditor.
    Where a party borrowed a sum of money from another, and delivered him possession of a slave whose hire was to pay the interest for two years — there having been a settlement between them, about the expiration of that time, and the lender having retained possession of the slave afterwards, and for seven years previous to his death — the Court held that the claim of the borrower to the slaVe was barred by the Statute of Limitations.
    
      Before Johnson, Ch. at Fairfield.
    
    The Chancellor states all the facts necessary to the understanding of .the questions made in this case.
    Johnson, Ch. Complainant states in his bill, that at the sale of the estate of one E. H. Wilson, on the 10th day of April, 1838, he purchased three negroes, Grace, Louisa and Mary, at the price of $1230, payable twelve months after date, for which he gave his note, in which Elisha Jones, defendant’s testator, joined as surety; and that to secure the said Jones against this liability, he, on the 24th day of the same month, gave him an absolute bill of sale of the said negroes, and another, called Charity, on an agreement that it should only be regarded as a mortgage; and that they remained in his possession until the-day of February, 1840, when they were taken out of his possession by the said Jones, and are now in possession of defendants, his executor and legatees ; that in February, 1835, he borrowed of the said Jones $500, and allowed him a negro boy, called Peter, to work, for the interest upon it; that he also is in possession of the defendants, and that, further to secure the said Jones, he confessed a judgment to him for $2,000, on the 5th day of April, 1835, and without any other consideration; and that afterwards, having been offered a large price for the negroes, he applied to Jones to permit him to dispose of them, to raise money to pay these debts, which he declined, or rather dissuaded complainant from doing. That he, complainant, afterwards went to Alabama, where he remained for two years ; and that during his absence the said Jones caused a fi. fa. to be issued on the judgment, and levied on a plantation of the value of $1000, which was sold by the sheriff, and bid off by Jones, at $100; that he also caused a stock of cattle and hogs of complainant’s to be sold, under the said fi. fa. and he charges that he had left the said plantation in charge of the said. Jones, when he went away, to be managed by him during his absence. That the said Jones, not long before his death, admitted that the said bill of sale was intended as a mortgage, and agreed that he would deliver the negroes to complainant, and release his title to the land, on being repaid the money he had advanced.
    The prayer of the bill is, that defendants account for the hire of the negroes and the rents of the lands, and that the negroes may be delivered up to him, and the land re-conveyed, on his paying what may be found due by him to Jones.
    The defendants admit, in their answer, that the bill of sale made by'complainant to Jones was intended to operate as a mortgage, and to secure him against his liability, as surety on the note, which he afterwards paid; that he took possession oí the negroes, and retained it up to the time of his death, in 1844, and that being more than four years after he obtained the possession, they insist they are protected by the .Statute of Limitations.
    The defendant, Hall, states, of his own knowledge, and as agent of the said Jones, that he advanced upwards of $1300 for the complainant, in payment of a mortgage and sundry judgments and executions against complainant; and that the said judgment was confessed to secure these advances, and for any further sums that Jones might advance, and for no other consideration. He further states that about the time the judgment was confessed, it was agreed between complainant and Jones that the latter should take Peter, at $500, in part of the debt which complainant owed him, complainant reserving the right to redeem Peter on the 1st of January, 1837.
    They admit the sale of the land, live stock, furniture, &c. and that Jones bid off the land at $100, but state that they are informed, and believe, that complainant had offered the land to Jones at $800, and that the sale was merely intended to perfect Jones’s title.
    The defendants, Hall and Jemima Crankfield, state positively and circumstantially, as facts coming within their own knowledge, that in the early part of January, 1837, the complainant and Jones came to a full and final settlement of all their dealings, by which it appeared that Jones had advanced for complainant $1,578 56. That in this settlement complainant was credited with the value of the land, at $800, with the whole of the live stock and furniture sold by the sheriff, with the value of Peter, at $500, &c. and that complainant fell in debt to Jones $88; that the calculations were made hy defendant, Hall, a memorandum of which is now in his possession.
    The facts that Peter was pledged by complainant to Jones, for money borrowed, and that the bill of sale of the other negroes was only intended to operate as a mortgage, to secure Jones against the note, leave but three questions tobe considered, in relation to the parties’ rights in the mortgaged negroes. 1st. Whether the defendants are protected by the Statute of Limitations. 2d. Whether complainant’s right to redeem was not barred by his not redeeming within two years after condition broken. And, 3d. Whether there was a full and final settlement of all their dealings in January, 1837, as stated in the answers. I shall, therefore, state only so much of the evidence as applies to these questions.
    Jones obtained possession of the negroes, by inveigling them out of the possession of complainant, in February, 1841. He died in April, 1844, and the bill was filed on the 23d of May, 1845. The witness, James G. Massey, says that in February or March, 1841, he went to Jones, at the request of complainant, to negotiate an amicable settlement between them, and after some conversation between them, witness “ asked him if he apprehended no difficulty from the way in which it was reported he came in possession of the property. Jones then said he did not claim the negroes as his property; that he wanted his money, and to tell Hogan, (complainant,) that he did not wish to see him at all, but to send him his money and take his negroes; and this he repeated two or three times.” Witness inquired the amount due, and Jones mentioned a certain sum, between $1700 and $1800.
    Daniel Motley, sworn for complainant, testified that in February, 1841, defendant, Hall, told him that he had been authorized by Jones to meet Col. A. F. Peay at the house of complainant, to settle the accounts between them, and that it was understood that Peay was to advance the money to pay Jones’s debt, and requested the witness to go with him to witness the settlement. They went, but did not go into the house, and, learning that Peay was there, defendant, Hall, inveigled the negroes off, and in answer to the remonstrances of the witness, he said that if he could get hold of the negroes, he would not take double the amount that complainant owed Mr. Jones.
    James Harrison, another witness, testified that in the latter part of 1837, or early in 1838, complainant applied to him to borrow money to pay his debt to Jones, and requested him to go with him, complainant, to Jones, to make a settlement. Witness did not go. Some time after, he met Jones, who said he had arranged matters with Hogan, and that he, Jones, was as well able to help complainant as witness. And to manifest that he was the friend of Hogan, Jones told him that he had bought his land at $100, and had agreed to allow him $800 on settlement. That complainant owed him $900, and that Peter was pledged for $500; that he did not intend to hold complainant to his bargain, but when they settled, he would allow him hire for Peter and make him pay interest.
    In 1840 or 1841, he told witness that he had a bill of sale of complainant’s property, but did not intend to use it as such, and only as a mortgage. The names of Peter and Charity were mentioned. Dr. Peak testified, that a few days before the trial, defendant, Crankfield, told him he thought complainant had been defrauded, and being one of the legatees of the will of Jones, he was willing to contribute his proportion to indemnify him.
    The only evidence opposed to this, if, indeed, it amounts to an opposition, is that of Joel Dunn, who testified, that in a conversation with complainant, in 1845, he said that his land was worth $1000, but that he had agreed to let Jones have it at $800. He complained that Jones had got his property for nothing, and that there was something for him, if he could get it, and that he intended to go to law about it.
    1st. As to the Statute of Limitations. That cannot prevail. Jones took- possession in Feb. 1841, he died in April, 1844, and the bill was filed in May, 1845. His executor was, by the statute, protected from suit for nine months, and deducting that from the interval between the commencement of his possession and the filing of the bill, and there remains only about three years and three months, the time limited by the statute being four years.
    2d. By the Act of 1712, (2 Stat. at Large, 587,) where the mortgagee of chattels has possession of them, the mortgagor is barred of his equity, unless he redeem them within two years. My first impressions were that it only applied to the case where he was in possession under the covenants of the mortgage. I am satisfied, upon reflection, that that position cannot be maintained. If the ordinary covenants of a mortgage be interpolated into this bill of sale, Jones would have been entitled to the possession of the negroes, in the event the. condition was broken. His possession was, therefore, rightful, and he might have sold the negroes, or retained them until complainant redeemed, and not having done so, the statute attaches.
    The slave, Peter, was not mortgaged, but put into the possession of Jones to work for the interest of a sum of money borrowed, and does not fall within the statute. If the value of his services was more than legal interest, the agreement was to that extent usurious, and I shall direct an inquiry into that matter.
    3d. The answers of the defendants, Hall and Jemima Crankfield, as to the fact of the settlement and account in January, 1837, are very positive and circumstantial, particularly in regard to the purchase of Peter, but it is impossible to reconcile these to the declarations of Jones down to 1841, more than three years after the supposed settlement, that he did not claim the negroes as his own, and held them only as a security for money advanced, proved by three witnesses, one of whom, James Harrison, was known to the court as very respectable. This must prevail, as, according to the known rule of the court, the answers are not evidence.
    The allegation of the bill is, that the judgment was confessed without any other consideration other than as additional security for money that had been before advanced. This is denied in the answer of defendants, and other considerations are distinctly -stated. No evidence was offered on either side, and I propose to direct an enquiry into that matter also.
    It is agreed on all sides, that $500 was the amount advanced by Jones to complainant, the interest of which was to be paid by the labor of Peter. It is therefore ordered, that the commissioner do state an account between complainant and defendants, charging complainant with that amount from the time it was loaned, and crediting him with the value of Peter’s hire, from the time he went into Jones’ possession; and that he do ascertain and report what was the consideration of the judgment confessed by complainant to Jones, the value of the land and personal property sold by the sheriff under Jones’ execution; and also the value of the rents of the land, from the time Jones had possession; and any other matter that may be material to the matters in issue.
    
      Grounds of Appeal.
    
    Defendants appealed from so much of the Chancellor’s decree in this case as directs an account, and moved to dismiss complainant’s bill, upon the following grounds :
    1. Because there was sufficient evidence that all matters of account between complainant and Elisha Jones, prior to the 10th April, 1838, when Jones became the surety of Hogan, on the note to John J. Wilson, had been settled before that time; and that Jones had become the absolute owner of the negro boy Peter, and the tract of land mentioned in the bill, and the bill ought to be dismissed.
    2. Because complainant sold the negro boy Peter, to Elisha Jones, in the spring of 1835, at the price of $500, with the right to redeem him on the 1st Jan. 1837, which constituted a verbal mortgage; and complainant having failed to redeem for the space of two years, is forever barred.
    3. Because complainant’s claim to Peter, or to an account for his hire, is barred by lapse of time and the Statute of Limitations.
    4. Because, even if complainant has a right to redeem Peter, he has no right to an account for his hire; as by the contract between the parties, Jones was to have his work for the interest of the $500, which was a legal contract, and not usurious ; more especially as it was proved that the interest oí $500 was more than the hire of Peter was worth, when he went into possession of Jones.
    5. Because the Chancellor received incompetent testimony, viz : the declaration of Allen R. Crankfield, which seems to have influenced his decision, although the evidence was objected to on the trial.
    McDowell & Cooke, Def’ts Sol’rs.
    
      Complainant excepts to so much of the Chancellor’s decree in the above case,, as refers to the application of the statute of 1712, relative to a mortgagors equity of redemption, after condition broken, and will move to reverse the same, on the following grounds:
    1st. Because it is apparent from the testimony of the case, that the bill of sale of the negroes, Grace, Louisa, Mary and Charity, executed by complainant to testator, Elisha Jones, although, to some extent, intended by both parties to operate as a mortgage, did not so far partake of that character as to come within the scope of the statute aforesaid.
    2d. Because, to entitle a mortgagee to the benefit of the aforesaid Statute of Limitations, it is necessary that, the mortgage should be in writing, and that there should have been an actual delivery of the chattels mortgaged.
    Hammond & Clarke, Compl’ts. Sol’rs.
   Dunkin, Ch.

delivered the opinion of the court.

This court concur entirely with the Chancellor on the subject of the negroes included in the bill of sale from the complainant to Elisha Jones, dated 24th April, 1838.— The complainant’s witness, Jonathan Watts, proves the circumstances of the transaction very satisfactorily.. He- says that the consideration of the bill of sale, tu wit, $1305 40, was made up of the note to the -estate of Wilson, for which Jones was surety, and a: note due by Hogan to Jones himself. Charity, as theMiof sale states, was about thirty-five years of a,ge, Grace, about thirty-three, Louisa, about four years old, and an infant, Mary, about six months old. This witness, Watts, says that Charity, if sound, was worth $500; but that she was unsound. The understanding of the parlies,” says he, “ when this instrument was executed, was, that Hogan, at the end -of the year, was to pay the purchase money of Grace and her children, $1220, and the $88 above referred to, and if he did so, he was to have the negroes again.”

Hogan failed altogether to pay the debt to Wilson’s estate, and in November, 1839, it was paid by Jones, amounting, then, with the interest, to $1354 06, and making the amount due by Hogan, including the $88 note, about $1500. This was in November, 1839, and explains perfectly the testimony of Dr. Myers and other witnesses. The conversation to which they allude was evidently in relation to this matter. It occurred, according to his testimony, just before Hogan went to be the overseer of Col. Peay, a few months before the negroes were taken from the possession of Hogan, “ one, two, three, or four months.” The bill expressly states that the were taken from the defendant’s possession in February, 1840. The answer admits the allegation. There is no doubt that the complainant overlooked for Col. Peay in 1840, and Watts, complainant’s witness, testifies that Hogan told him, in the Spring of 1840, that the negroes had been taken from him. Dr. Myers says that in this conversation between Col. Peay, Jones and Hogan, Col. Peay stated his disposition to aid Hogan by paying, what was due to Jones. Witness thinks the amount alleged to be due was about $1600. Jones said he had no objection — that his necessities were such that he was compelled to have the money or the property soon.” An appointment was made for a meeting “ at Hogan’s house, to know whether Peay would pay the money for Hogan.”— Watts says that “in December or November, 1839, he heard Col. Peay tell Jones that he had examined into Hogan’s affairs, and found he was so much in debt that he could not relieve him.” Two months afterwards the negroes were taken into the possession of Jones, under his bill of sale, and there remained until his death in 1844. There can be no doubt that the claim of the complainant was barred by the Statute referred to in the decree. It was said the mortgage was not in writing. But the bill of sale — that which constituted the title, was in writing. It was only the defeasance, that on which the complainant relies, which was in parol; and the reasoning of the Chancellor is quite satisfactory on the point.

It becomes now necessary td inquire into the transaction which relates to the land and the negro Peter. The charge in the bill is that in February, 1835, the complainant being pressed by some debts, Elisha Jones, the defendant’s testator, agreed to advance money to relieve him, provided complainant would permit him “ to take into his possession a-negro boy named Peter, to work for the interest of five, hundred dollars of said money for two years, and confess a judgment for two thousand dollars, as a further indemnity” — that in April, 1835, he confessed the judgment, and delivered Peter into the possession of Jones. He states that in May, 1835, he, the complainant, went to Alabama, and did not return to this State until 25th December, 1836 — that, during his absence, his land, worth $1000, was sold by the Sheriff under some execution, and bought by Jones for $100 — that Jones told several persons at the sale that he had purchased the land from the complainant, and only bid in order to get a Sheriff’s title. Complainant avers that, at the end of the two years, he tendered the five hundred dollars for Peter, but that Jones refused to receive the money or deliver the negro, but said he would do so at some future time. The bill calls on the defendants to discover the precise amount of money paid by the said Elisha Jones for the complainant. The interrogatory was the more proper because it had been previously alleged in the bill that the moneys advanced by Jones were paid through his agent, Wm. E. Hall, one of the defendants. In reply to this interrogatory the defendant, Hall, answers that on the 6th of April, 1835, he met the complainant in Camden, and, as the agent of Jones, paid off debts of the complainant, in the Sheriff’s office and elsewhere, to the amount of one thousand and sixty-seven dollars, and on the 27th April, paid the balance due on one of the debts of $245, making together $1312, besides some smaller debts of which he cannot state the particulars. Although the answer, thus far, is strictly evidence, yet it - is not very material, for the same is substantially established by other testimony hereafter to be noticed. The answer admits that the defendant’s testator did not mean to keep the land of the complainant at the bid made at the Sheriff’s sales, and admitting also the possession of Peter, says he was to be redeemed if the $500 was paid in January, 1837. But the answer proceeds with a statement that the land which was knocked off to Jones during complainant’s absence iii Alabama, was to be taken by Jones at $800 ; and further, that, soon after the return of the complainant from Alabama, to wit, early in January, 1837, a settlement took place between his testator, Jones, and the complainant — that the calculations were made by the defendant, Hall, in the presence of the parties — that the amount then ascertained to be due by Hogan to Jones was $1578 56 — that he was allowed $800 for the land, $500 for Peter, and certain other amounts specifically set forth by him for other articles of Hogan’s, purchased by Jones, and that a balance was thereupon ascertained to be due by Hogan to Jones of $88 33— that he speaks with accuracy, as he has the paper still in his possession on which the calculations were made.

We concur with the Chancellor, that the answer of the defendant is not evidence to establish the settlement. It remains then to inquire whether such settlement may be with propriety inferred from the other testimony in the cause. The letter from the complainant to E. Jones, dated Alabama, 28th October, 1836, seems to have entirely escaped the observation of the Chancellor, or was probably not given to him after the hearing of the cause. In that letter the complainant writes “ I am able to pay you $500 cash now, and will act the gem tleman with you; — you shall never lose a dollar on my account. You can take my land at $800, and I will pay you $500 in January — that will be $1300, and you will be so good as to send my two negroes out to me any time in December so that J 'can get them in time to hire out, or put in a crop ; and what you do not make over of the balance I am as good as wheat for.” It cannot be doubted that this letter admitted an amount, then due to the person to whom it was addressed, exceeding thirteen hundred dollars. The letter was in reply to one which he had received on the day previous, as appears from the first part of it — “ You can take my land at $800” is, apparently, in reply to a proposal to that effect on the part of Jones. But the complainant’s witness, Watts, being examined by him to prove that he did not buy the land at Sheriff’s sale with an intention to keep it at his bid, testified that “after the sale of Hogan’s land by the Sheriff, he heard Jones say that the title of Hogan was not good, and that the Sheriff’s title would be better than one Hogan could make — that Jones said he was to allow Hogan $800 for the land. Jones told witness that he had bargained privately with Hogan for the land at the price of $800.” Another witness, Joel Dunn, testified that he heard Hogan say “the land of his was worth $1000, but that he had agreed to let Mr. Jones have it in a settlement, for $800.” The conversation took place in 1845. Hogan complained of Jones — said he was going to law, or was at law — “that Jones had got his property for nothing— that his land was worth $1000, but that he had let Jones have it in settlement for $800.” But on the subject of the land the Court can perceive neither contrariety nor discrepancy in the evidence. The letter of October, 1836, admitted an indebtedness of more thad $1300, and proposed or agreed that the land should be taken at $800 .in part payment. It is not alleged in the bill, it was not suggested by the complainant at any subsequent period, in Court or out of Court, that he had actually paid, in any other way, any part of the sum then acknowledged to be due to Jones. The latter, in possession of the Sheriff’s title, remains also in undisturbed and unchallenged possession of the land from 1836 until his death in 1844; and, for the first time, in May, 1845, his title is called in question by the institution of these proceedings. Then as to Peter. The complainant alleges that in January, 1837, he tendered the money and demanded the negro. It is very difficult to conceive why the complainant did not then insist on his rights. But the defendant ascribes the silence of the complainant to the fact that, in the alleged settlement of January, 1837, the complainant received credit for the value of Peter. Is this allegation confirmed? It will be recollected that at that time the complainant owned Charity as well as Peter; in his letter of October, 1836, he had requested Jones to send out his two negroes. Another letter, or note, was adduced in evidence (not noticed in the decree) from the complainant to Jones, dated 15th December, 1837, eleven months after the alleged demand'by the complainant, and eleven months after the settlement in which defendant avers Peter became the absolute property of Jones, his testator.- — - The letter is sent by Charity, and in it the complainant writes, “I request you to be so good as to let me have Peter for the next year. As I have got to hire a hand — -I will give you your own price for him the next year.” adding that the testator, Jones, had hands enough for his land without Peter, and that Charity would be better satisfied if Peter was there with complainant; he concludes, “and I will give you a fair price for him, as I do take you to be one of my best friends,” &c. It is hard to suppose that this letter came from a man who supposed himself the owner of Peter, and that he was wrongfully detained from him by the person to whom it was addressed. But it is quite consistent with the supposition that, in January previous, the settlement had been made, and that Peter had then become the absolute property of Jones. It may not be an immaterial circumstance to remark that the balance of $88, which was alleged to have been found due by Hogan on the settlement in January, 1837, constituted, according to Watts’ testimony, one of the items of the consideration for the bill of sale of April, 1838. The evidence is very strong that a settlement was made in January, 1837, and that the value of Peter was included in it. But the complainant avers, and it will be assumed, has proved, that in January, 1837, he actually tendered the money to Jones and demanded the negro. On the refusal of the defendant’s testator the right ol the complainant was perfect either at law or in this Court. The complainant does not allege that any new contract was then made. If he held as mortgagee in possession, the complainant’s right would be barred in two years.— But if, as complainant avers, there was no mortgage, and that Jones was only to hold the negro for two,years for the interest of $500, complainant’s right of action accrued in January, 1837, and was barred in January, 1841, more than three years prior to the death of the testator. There are circumstances in the case which seem peculiarly to entitle the testator’s estate to the protection of this statute of repose. Wm. Sanders, the most important witness of the complainant, proves that “ he was at Jones’ in January or February, 1837. Dr. Hall (the defendant) was engaged in a calculation of some matters between Jones and Hogan. Hall was a good while engaged in the calculation. At the instance of Mr. Jones, witness and Hogan called on Dr. Hall, and requested him to come up to Mr. Jones’ for the purpose of making the calculations above referred to. The calculations occupied some two or three hours, perhaps.” This is the exact period at which the defendant alleges he prepared the statement on which the settlement was made. The testator, Jones, lived for seven years afterwards, and the matter was never moved, although the complainant never lived at á greater distance than 25 miles, and during a part of the time, in the employment of an opulent and influential gentleman, who was disposed to befriend him. The grave closed on the principal party in the transaction, and the witness, who could alone give a satisfactory explanation of it, had become incompetent. The Court would be reluctant to infer that the complainant waited for this fortuitous conjunction in order to prefer this long standing claim, but he has availed himself of it, and cannot complain that he is made to abide the consequences of his delay.

It is ordered and decreed, that the decree of the circuit be reformed, and the bill dismissed.

Johnston, Ch. and Caldwell, Ch. concurred.

Harper, Ch. absent.

Decree reformed.  