
    John Foster vs. Downs Calhoun.
    The consideration stated in a bill óf sale, does not conclude the warrantor. In ail action against him on the warranty of title, he may show by parol, that no consideration passed, that he purchased the property as the agent of the plaintiff, and executed the bill of sale to him to transfer the right.
    Though this evidence may not be clearly admissible when trover only is brought, yet when joined with case on the warranty, both counts must be judged of by the evidence received, though in strictness -it may be applicable to the latter only.
    The delivery of the property to the plaintiff, is the end of the agent’s duties, and a subsequent purchase by the latter, of a pre-existing mortgage of the same property, will not inure to the benefit of the principal.
    A paper, purporting in the commencement to be a bill of sale of a negro, signed by the vendee only, but afterwards specifying that if the purchase money was not paid when due, that the purchaser might re-take the negro, sell, and apply the proceeds to the payment.of the note given for him, — is a good and sufficient mortgage.
    BEFORE O’NEALL, J., AT ABBEVILLE, SPRING TERM, 1837.
    This was an action on the case on the clause of warranty of title of a slave, contained in a bill of sale and executed by the defendant to the plaintiff; the declaration also contained a count in trover.' The slave once belonged to Col. Richard Griffin, who sold him to Barker, and to secure the payment of the purchase money, took from him a writing by way of mortgage of the slave; it was not recorded until after the plaintiff bad the slave in possession. It appeared very clearly from the proof, that the defendant, as the. agent of the plaintiff, bought the slave from Barker, who executed to him a bill of sale; and be, to give effect to the sale, executed to the plaintiff a bill of sale, on which this action is brought. After the sale the defendant and the plaintiff were apprized by Col. Griffin of the existence of bis mortgage, and the defendant, under the belief of bis liability as to the title, by. bis son-in-law Beasly, purchased the mortgage from Colonel Griffin and procured him to assign it to Beasly, by whom the negro was seized and delivered to the sheriff at Abbeville district, who, under bis authority, sold the slave to the defendant at public auction, and received and paid over the proceeds to Beasly, by whom the amount was repaid, to the defendant.
    The plaintiff objected generally to verbal evidence which might contradict the written warranty; but this objection was understood by the Court to be intended merely to give the plaintiff the right to stand on his written warranty, and not to exclude any of the evidence.
    His Honor was of opinion, and so instructed the jury, that if the defendant acted merely as the agent of the plaintiff in making the purchase from Barker, and if his bill of sale was in consideration of that fact, and not of money paid to him, that then he was not liable.
    His reasons for that opinion and instruction were, that the measure of damages to be recovered by the plaintiff was the purchase money paid to the warrantor, the defendant, with interest thereon. Furman vs. Elmore, 2 N. & McO. 188. If he received no pecuniary consideration, and was not, in fact, in any shape benefitted by the sale, no damages could be found against him, and not being liable to damages, it followed that the plaintiff could not have a verdict.
    In Ourry vs. Lyles, 2 Hill, 404, it was held that the parol evidence might be admitted to show that the consideration was greater than that stated in the deed. So in Qarrett vs. Stewart, 1 McC. 514, it was held that notwithstanding a money consideration was stated in a deed, it might be shown that it was executed on an exchange of negroes. From these cases it was plain that the consideration stated does not conclude the warrantor: and it might now be safely said, that the consideration is always examinable. If this were not so, a fraud might thus be covered up, and could not be examined at law. This would be the effect of the principle contended for by the plaintiff in this case. His Mend and agent was to be made liable by an act done merely to give legal effect to his own purchase. Such a result cannot follow from any principle of the common law. The bill of sale executed by the defendant to the plaintifíj to give effect to his purchase, made as agent for the plaintiff, was nothing moré in law than a conveyance by the plaintiff to himself. The purchase by the defendant for the plaintiff, made the property that of the plaintiff. '
    Under the count in trover, he thought the plaintiff might recover, if any of Ms objections to the defendant’s title under the mortgage were valid. His Honor, however, was against him on all of them.
    First, as to the form of the mortgage: it was not in the usual form, but be thought it substantially a good mortgage.
    Secondly, as to notice of the mortgage: the circumstance of its not being recorded until after the sale, could not affect its validity. The provision of the act of 1698 is, “ that the sale or mortgage of negroes,’goods or chattels, which shall be first recorded in the Secretary’s office in Charleston, shall be taken, deemed, adjudged, allowed of, and held to be the first mortgage,” &c. That it was enough that no other sale or mortgage of the slave was recorded. As between a volunteer and a Iona fide purchaser, the rule was, that unless notice be brought home to the latter his title must prevail; but as between conflicting legal titles supported by a valuable consideration, no such rule had ever been laid down in a court of law.
    Third, as to the satisfaction of the mortgage by operation of law. This, he thought, depended upon the issue in fact,, whether the defendant was the agent of the plaintiff in making the purchase from Barker. If he was, then his warranty of title was the act of the plaintiff, and did not bind the defendant to make it good; and hence that he might acquire and enforce an adverse title. If, however, the title proceeded, from him by a sale to the plaintiff, his Honor held, and so instructed the jury, that Ms subsequent purchase of the mortgage, and the assignment of it to .his agent, was in law, a satisfaction of it; or that the title thus acquired would inure to the benefit of the plaintiff.
    The jury found for the defendant, and the plaintiff appealed on the following grounds:
    1st. That the express warranty in writing should not have been contradicted by parol proof of defendant’s agency, or of any other fact inconsistent with the legal effect of the writing.
    2nd. That the paper called a mortgage, did not, under the circumstances, authorize the assignee to seize the negro in possession of the plaintiff.
    Undér this ground the plaintiff gave notice that he would (inter alia) contend, that -the paper was defective in form: that it was void against an innocent purchaser without notice, who (as the mortgage knew) had acquired possession before the paper was recorded; and that it was extinguished or discharged, ipso facto, as soon as it became the property of the defendant.
    
      D. L. Wardlaw, for the motion.
    
      Burt, contra.
    The following is a copy of the mortgage:
    South OaroliNA,
    Abbeville District.
    Know all men by these presents that I, Richard Griffin, have bargained and sold, and by these presents do bargain and sell, in consideration of the sum of six hundred dollars, to Laban Barker of the said district, a negro man called John, about forty-five years of age, and I do hereby warrant and defend the title, in and to the said property, to the said Laban Barker, against every lawful claim.
    Nevertheless, the true intent and meaning of this instrument is, that whereas the said Laban Barker is justly indebted to the said Richard Griffin in the said sum of six hundred dollars on his promissory note of this date, due on the first of October, eighteen hundred and thirty-five, with interest from date. Now it is expressly understood, that if the said Laban Barker should fail in the payment of the said note, the said Richard Griffin shall be, and he is hereby authorized, to take the said slave into his own possession immediately thereafter, and after fifteen days public notice, shall be and is authorized to sell the said negro at public outcry, and apply the proceeds of such sale to the payment of said note.
    
      In witness whereof I have hereunto set my hand and seal, this first day of October, one thousand eight hundred arid thirty four.
    
    (Signed) LABAN BARKER, [t. s.]
    
      Sealed and Signed in the presence of SAMUEL SROWBRIDGE.
   Curia, per O’Neall, J.

It has. been contended that the paper executed by Barker to Col. Griffin was not a mortgage. It is true, that it is not a very skilfully drawn paper, but I think it is substantially a good mortgage. It commences as a bill of sale from Richard Griffin to Laban Barker for the negro. But the subsequent part explains the intention of the parties to be, that if Barker should fail to pay his promissory note for the price of the negro, six hundred dollars, on or before the time .when due, 1st October, 1835, then that Griffin should be authorized to take the negro into his possession, and after fifteen days public notice, to sell him and apply the proceeds to the payment of the note. This was executed' by-Barker alone. In a legal point of view, it had precisely the effect, of a technical mortgage, For as soon as Barker failed to pay the money, the right of Griffin to take the negro into his possession for the purpose of sale, was perfect. This gave him a legal title. In the case of a mortgage, the mortgagee’s right after condition broken becomes absolute, and he may take the slave into possession for the purpose of sale. The legal results from both papers are the same; and hence both must be treated and considered alike. Having shown that the paper to Griffin is to be considered a mortgage, it is not necessary to add any thing to the views of the Judge below, as to the want of notice and recording before the sale to the plaintiff: they are satisfactory to this Court.

This court agrees with the Judge below, that parol proof of the fact that the defendant bought the slave as the agent of the plaintiff, was admissible; Jackson vs. Henburgh, John. cases, 154. His reasons show very clearly, that the consideration stated in the bill of sale is examinable. It must be constantly borne in mind, that this action is on the covenant of warranty in the bill of sale, and also in trover on the plaintiff’s title. On the first, the warranty, it is plain, for the reasons given by the Judge below, that the parol proof must be admitted, and when received for that purpose, if it also cuts up and destroys the plaintiff’s title, it cannot be avoided. I am not prepared to say that in an action of trover merely, the evidence would have been clearly admissible. But when that action is blended with another in which the proof is admissible, it must be judged of, as well as the other, by the proof received. When the evidence was let in, the only question which could arise on it was that which is stated in the third' particular of the defendant’s second ground; was the mortgage extinguished by being purchased by the defendant, who had conveyed to the plaintiff? As I have stated in my report, that depended upon the fact, whether 'the defendant bought as the agent of the plaintiff. The jury have found that he did. This destroys the effect of the defendant’s conveyance as his own act. It stands now upon the footing as an act merely done in execution of his agency. 'When the defendant delivered the slave to the plaintiff, his duty as an agent was at an end. He bad acted merely as the instrument by which the plaintiff acquired property in the slave. There was nothing in the relation between them to prevent his subsequent acquisition of title in his own right. For it will never do to say, that a man who is once an agent for another is always to be regarded as clothed with that character. But if he had bought the slave as the plaintiff’s agent, and before he had turned him over to the plaintiff he had heard of the mortgage and had bought it, could the plaintiff have asked him for possession of the slave until he had paid to him the mortgage ? Clearly not! This, in substance, is what the defendant insisted on'after he bought the mortgage. He seized the slave to satisfy it,, and the plaintiff could have at once removed the difficulty by paying the mortgage. He chose to pursue a different course; he suffered the slave to be sold, and if he has sustained loss by it, it is the effect of his own folly.

It has been supposed that the defendant’s purchase of the mortgage and subsequent absolute purchase, must inure'to the benefit of the plaintiff on account of the previous agency. This view is, I think, answered by the views already presented. But independent of them a trust cannot be set up at law. If the defendant’s purchase is to be affected by the relation between the parties, that belongs to another Court to say so.

The motion is dismissed.  