
    Wofford v. Thompson.
    Where it appeared that the justice of the case had probably been attained, and the judgment of the court did not appear to have effected injuriously any subsisting right of the appellant, the judgment was affirmed.
    It seems that an action may be sustained to cancel a mortgage which has been paid but is still held as a cloud upon the plaintiif’s title ; but, qitere l Where the mortgage is stale, or is not asserted by the mortgagee.
    Appeal from San Augustine. The record discloses that in 1S34 or 1835 the appellaut, "Wofford, residing in Kentucky, and being in embarrassed circumstances, sent by his son to Louisiana a negro woman and her three children, in order to place them beyond the reach of creditors. The son left the negroes in charge of the appellee's intestate, Samuel Thompson, then residing in Louisiana. In 1S36 the Woffords visited Thompson, who in the meantime liad removed to Texas, bringing the negroes with him. They then borrowed of him $300, and gave á mortgage upon the negroes to secure the payment of the money. Afterwards, in 1839, Wofford delivered to Thompson a horse worth about $140, which the latter sold and received the pay in 1840. In August, 1S41, Wofford took possession of the negroes. And in December, 1843, after the death of Thompson, he brought this suit against his administration to obtain a cancelation of the mortgage and to recover hire for the negroes while in Thompson’s possession, estimated at 82.104. lie also included a demand for the value of the horse delivered to Thompson. Appended to the petition is an account for the hire of the negroes, stating the estimated annual value of their services from January, 1835, until the 10th day of August, 1841.
    At tlie Spring Term, 1844, the defendant answered, admitting the delivery to his intestate of the negroes, the loan by him of the $300 to the plaintiff, the talcing of the mortgage to secure the payment, and the receipt and sale of the horse as alleged. He further alleged, in substance, that his intestate was to have the services of the negroes for the use of the money, and that their services were worth no more than their food and clothing and interest upon the money loaned the plaintiff. lie denied having possession of the mortgage, and .alleged that it liad been abstracted from among the papers of his intestate by some one unknown to him. To the claim for the hire of the negroes and the value of the horse ho pleaded the statute of limitations, and prayed that the suit bo dismissed. At the Fall Term, 1850, the plaintiff amended his petition, alleging a special contract between himself and the defendant’s intestate, by which the latter was to hire out the negroes, and, after applying the proceeds to the extinguishment of the mortgage, to account to the" piaintiff for the excess.
    The defendant at the same time amended his answer, denying all the aver-ments of the petition not admitted in his original answer, and claiming that two hundred dollars remained due upon the mortgage, for which he prayed judgment.
    The jury found a verdict for the defendant for $40 principal and $18.33 interest, The plaintiff applied for a new trial. The defendant thereupon entered a remittitur for the sum found by the jury in his favor. The court refused the application for a new trial, and gave judgment for the defendant and for costs only, and the plaintiff appealed.
    
      Henderson and Jones, for appellant.
    
      J. M. Ardrey, for appellee.
   Wheeler, J.

Regarded as a suit to recover the value of the hire of the negroes and of the horse claimed in the petition, it is evident this action was 'barred by the statute. The primary object of the suit doubtless was to obtain tlie cancelation of the mortgage, as constituting a cloud upon the plaintiff’s title. It was only in this aspect that the action was maintainable. But this object appears to have been abandoned or lost sight of in the subsequent conduct of the cause. And indeed there does not appear to have been any occasion for the institution of the suit with a view simply to the cancelation of the mortgage. The defendant disclaimed its possession and pleaded the statute of limitations, and sought to terminate the controversy by dismissing the suit, lie does not appear to have intended or sought to enforce the mortgage or to assert any rights under it until the plaintiff persisted in his suit for the recovery of hire, &c.

He then opposed to the money demand of the plaintiff the amount claimed to be due on the mortgage. But after verdict he relinquished this claim, thus manifesting no purpose "or pretensiou of asserting any right to the x>roperty under the mortgage.

There is nothing in the facts of the ease which seems to have required the institution of this' suit for the mere purpose of obtaining a cancelation of the .mortgage. But if there was any ground for instituting the suit at the time none" is perceived for protracting the controversy now. It would be useless to decree a cancelation of the mortgage when the debt it was given to secure is, by the judgment of the court, extinguished. Besides, by his amendment to his petition and his subsequent conduct of the cause, the plaintiff abandoned this, in any view, the only tenable ground of his action.

The verdict of the. jury found a small amount still due upon the mortgage after deducting what under the evidence they seem to have regarded as reasonable hire for the negroes, and upon the merits (which in the view we have taken it is not neeessaiy particularly to examine) the justice of the case has probably been attained. However that may he, the judgment of the court does not appear to have affected injuriously any subsisting right of the plaintiff, and we are of opinion that it be affirmed.

Judgment affirmed.  