
    Gambling vs. Read.
    Sale OF Chattels. Condition — vendor's lien for the price. On a verbal sale and delivery of a slave at a fixed price, to be paid on a day certain, but, until paid, the title to remain in the seller, the payment is a condition precedent, till the performance of which, the property does not become absolute in the buyer, nor liable to his debts.
    Í5AME. Chancery — vendor's lien how enforced. A trustee, to whom such buyer conveys the slave, to secure a previous creditor; takes him subject to the seller’s lien, which will be enforced; in equity, upon the seller’s bill against the buyer, his creditor and trustee, by a decree, that they pay the price at a short day, — also, thatthe sale be rescinded, and the slave re-delivered.
    About the 24th of April, 1837, Gambling sold Read, Hannah, a female slave for $1200, made him a bill of sale of her, and delivered her into his possession. For 800 dollars of the purchase money, Read gave Gambling his note payable on the 1st of July, 1837, and to secure its payment gave him a bill of sale of another négro woman Dilcey and her child, Henry, conditioned that if Read paid the 800 dollars when due, the bill bf sale should be void. The remaining 400 dollars were secured by á note, executed by Read and another as his surety, payable by the 1st of July, 1837. Hannah had a young child, and her distress at the separation from it induced Read to propose to purchase it; and it was agreed that he should have it for 150 dollars, payable by the' 25th of December, 1837, for which he gave Gambling hid note, and the child was delivered to Read, but no bill of sale was made him; and in several conversations upon the subject immediately after the transaction, he stated that the right of property in the child remained in Gambling till the? money should be paid.
    Being indebted to Zachariah F. Green, for the price of Dilcey and her child, and other property purchased of him, Read, on the 29th of April, only five days after the purchase' of Hannah and her child, made a conveyance of her and her child, and Dilcey and her child, to William Trousdale, in trust, that if he failed to pay Green 1642 dollars, for which he executed his note of the same date at two months, their Trousdale was to sell the negroes for cash, and pay the debt.
    To prevent the sale of the child under this deed of trust,- and its removal beyond the jurisdiction of the court, Gambling filed his bill in the chancery court of Gallatin, on the 17th of July, 1837, stating the above facts, suggesting the embarrassed condition of Read, and praying that Read, Green and Trousdale might be enjoined from selling the child; that it might be delivered up to the plaintiff, to be retained by him as a security for the payment of the 150 dollars, and for an injunction, ne amoveos, &c.
    His Honor Judge Brown, of the 6th circuit, gave a fiat for the writs, and they were issued, and the sheriff took the' child into custody, and delivered him to Gambling, and took his forthcoming bond, dated the 21st of July, 1837.
    The defendant Read filed his answer on the 15th of August, and Green on the 13th of September, 1837. Read’s answer states the facts substantially as above detailed, insisting, however, that the title to the child passed to him by the delivery without a bill of sale. Green denied any knowledge of the fact that Gambling had reserved the title.
    Testimony was taken, which clearly proved that the reservation had been, in point of fact, made, and that the purchase money of the child was unpaid.
    The case was heard at October term, 1838, before his Honor Chancellor Bramlitt, who decreed that the defendants should be divested of all right, &c. in the child; that they should be perpetually enjoined from selling him under the deed of trust, &c. From this decree Green prosecuted a writ of error.
    December 29
    White, for the complainant,
    said the question in this case is, whether this was an absolute or conditional purchase from complainant, of this boy, the son of Hannah? Defendants, by way of defence, say that the purchase was absolute and unconditional, for the price of $150. This is their defence, which they must establish, for they admit the negro to have been originally the property of complainant. 14 John. 63; 6 Yer. 108. They fail to show this, either by producing a bill of sale, or proving a parol purchase and delivery of the negro by witnesses.
    How would this matter stand in relation to Read, supposing him to be the only party? The facts admitted by him in his answer, show it could not have been an absolute sale. He first purchases Hannah at $1200, of which he pays $800 in Dilcey and her child, and gives personal security for the other $400. He likewise takes a bill of sale for Hannah. Do not these facts show that Gambling would not have made an absolute sale of this boy, unless the money had been paid or security given? And further, if it had been an absolute sale, would not a bill of sale have been required and executed, as was done for Hannah, the mother of the child? But the evidence of the witnesses conclusively show that this was a conditional sale, and that Gambling had not parted with his title to the property.
    Does Green stand in any better situation than Read? Certainly not. All that he can claim under his mortgage is whatever interest Read had in the property. With regard to personal property, it is a question of right, and not of notice; 1 Johnson, 479; but situated as Green is, from the facts In this case, the law would impute notice. He must have seen the bill of sale for Hannah the mother; this would put him on bis guard about the child, and he would be required to investigate the title at his peril.
    Guild and Cook, for respondents,
    argued, that the proof shows that the transaction was a verbal mortgage, and not a conditional sale. If a mortgage, then, not being in writing, it was void, as to subsequent purchasers without notice, 1784, c 10, § 7, Payne vs. Lassiter, 10 Yer. 507.
    December 31.
    Green is a bona fide purchaser for full value, without notice, and a court of equity will not relieve against him. The title, to say the best of it, is doubtful, and the court will leave the parties to their remedies at law. Loftin vs Espy, 4 Yer. 84. Here Gambling has got two negroes, Dilcey and child, of defendant, the consideration of the deed of trust; and it would be inequitable to give him the child, also, and leave Green, an innocent purchaser, the sole loser.
   Turley, J.,

delivered the opinion of the court.

In this casp, the proof shows satisfactorily, that Jesse Gambling, the complainant, sometime about the 24th of April, 1837, sold to John Read, one of the defendants, the negro child, Marcus, the subject of controversy, for the sum of 150 dollars, to be paid on the 25th of December foliowing, and retained the right and title in himself as security for the payment of the purchase money; that, at the same time, lie sold also to said defendant, negro woman Hannah, the mother of the child, and permitted the possession of the child, it being but three months old, to be taken by the defendant together with the mother, the purchase money of whom had been secured, and the. title parted from; that on the 29th of April, 1837, John Read executed a deed of trust on the negro woman and child, to secure a debt previously contracted to his co-defendant, Zachariah F. Green, and that the purchase money for the child has never been paid to the complainant.

Upon this state of facts, the question presented for consideration is, whether the vendor of a negro can permit the vendee to take possession, and retain in himself the title to secure tbe payment of the purchase money? It is not denied that as between himself and his vendee he may, but it is said, that as between himself and a subsequent purchaser from his. vendee, without notice, he cannot, unless the contract be re duced to writing and registered as a mortgage.

The maxim, caveat emptor, applies as well to purchasers •oí’ negroes as other personal property; and of course, if the person from whom the purchase is made, have not the legal title, the purchaser can acquire none. The possession of personal property is only prima facie evidence of title, and will not protect a purchaser against the claim of the true owner, except in a few cases provided for in law, where it has been of such a character as is calculated to impose upon creditors and subsequent purchasers, which need not be specified, as this is not one of them.

The defendant, John Read, then, having acquired by his ) ? contract with complainant, no legal title to the negro in dispute, could convey none to his co-defendant, Zachariah F.' Green. There is, we think, nothing substantial in the argument, that the contract between the complainant and defendant Read, ought to have been registered as a mortgage. We do not think that it is a mortgage; although so far as the 1) property is held to be a security for the payment of the debt, I it is somewhat similar. In the case of a mortgage, the title passes from the mortgagor to the mortgagee, to secure the mortgagor’s debt, who may either take possession or not, at his pleasure. But in the case now under consideration, the f title to the property was never parted from, but was retained |¡‘ by the owner, to secure the payment of the money contracted to be given for its purchase. There is no law requiring such contracts to be registered. Though partaking in many respects of the nature of mortgages, yet they are not mortgages; and the statutes requiring the registration of mortgages cannot be made to apply to them.

The complainant is therefore entitled to relief, but not to the relief given by the chancellor. For inasmuch as he holds the legal title to the negro boy, only as a security for the purchase money, the defendants, upon the payment thereof, are entitled to keep him. The right, therefore, ought not to have been divested by the decree, but they should have been directed to pay the money in some reasonable time, and in case of failure, the contract should have been rescinded, and the negro restored to the complainant.

The decree will therefore be modified, in this respect, and the time of two months given to defendants, after they shall have |jeen notified of this decree, in which to make payment 0f the $150, with interest from the 25th day of December, 1837.

Note. See Haggerty vs. Palmer 6 Johns, Ch. R. 437.

Upon the subject of the seller’s Hen for the price, upon a conditional sale of chattels, see 2 Kent’s Comm. 496, 497, 498, 3d Ed., and the authorities there cited; to which add, Dupree vs. Harrington, 1 Harper’s R. 391; Wheeler on Slavery, 70, S. C.; Owenson vs. Morse, 7 T. R. 54; Harris vs. Smiths, 3 Serg. & Rawle, 20.

Decree modified.  