
    Elijah Thornhill vs. Charles G. Gilmer, et al.
    The legal effect and operation of a mortgage of personal property after the condition is forfeited, is to invest the mortgagee with an absolute interest in the property mortgaged.
    The right of the grantor in a deed of trust of personal property therein, is not the subject of seizure and sale under execution at law.
    Equities and rights to redeem are not subject to execution at common law; nor has that rule been changed by statute in this state.
    In the trial of the right of property levied on under execution, the burden of proof is upon the plaintiff in execution ; and if no title is made to appear in the defendant in execution, the plaintiff therein will fail equally as if a paramount titl& were proved in the claimant.
    In error, from the Madison circuit court.
    This was a suit for the trial of the right of property in two slaves, Abraham and Rheno, in the court below, between the plaintiff in error, claimant, and the defendants in error, who were the plaintiff in the execution.
    In May, 1838, Gilmer & Webb recovered a judgment, in the Madison circuit court, against Samuel Thornhill, for $548 04|. Execution issued upon this judgment, and was levied upon the property of Samuel Thornhill; a forthcoming bond was given and forfeited on the 15th October, 1838; upon the forfeited bond, on the 16th of March, 1842, an execution was issued against Samuel Thornhill and sureties, and levied upon the two slaves. Affidavit and bond to try the right of property were then made and executed according to law. At the next term of the court an issue was made • to try the right, and the cause then continued.
    At the November term -a trial was had; when the following facts, in substance, were admitted and proved :
    It was admitted by both parties, that the plaintiffs in the execution recovered a judgment against Samuel Thornhill in May, 1838; that execution issued thereon; and that a forthcoming bond was given, and forfeited on the 15th off October, 1838; that execution issued on the forfeited bond, and was on the 10th March, 1842, levied upon the two slaves as the property of Samuel Thornhill, and were, at the time of the levy, claimed by Elijah Thornhill.
    That Rufus K. Flack obtained judgment against Samuel Thornhill, in the United States circuit court for the southern district of Mississippi, in June, 1838 ; that execution, was issued upon the judgment, and bond taken and forfeited in November, 1838; that upon the forfeited bond execution issued, and was then levied upon the slaves in controversy, and under said levy were, in April, 1839, sold, and purchased at the marshal’s sale by T. C. Tupper.
    It was also proved, by Samuel Thornhill, that the negroes remained in his possession up to April, 1839 ; that before the sale of the slaves imder Flack’s judgment, by agreement between Tupper and Samuel Thornhill, Tupper was at the marshal’s sale, to buy the slaves for Elijah Thornhill, and should convey them to him, in part payment of a debt due from Samuel to Elijah Thornhill, and to permit said Samuel to keep possession of them until Samuel Thornhill built a house for Tupper; that Samuel should build the house in consideration thereof for one thousand dollars less than the ordinary price for such a house. Tupper permitted the negroes to remain in the possession of Samuel until 1840, when he, Tupper, conveyed them, in pursuance of the agreement, to Elijah Thornhill; that Samuel repeatedly requested Tupper, before the conveyance was made, to make the conveyance to Elijah, but Tupper refused to do so until work to the amount that Tupper had paid for them should be done on the house; that Elijah and Samuel Thornhill lived in the same house, being father and son; both were carpenters at the time of the rendition of each of the judgments.
    It was also proved by a deed of trust, made by Samuel Thornhill to Charles Moore, on the 10th of March, 1837, to secure a debt due from Samuel Thornhill to Rufus K. Flack, for the sum of three thousand four hundred and thirty dollars, due on the 1st February, 1838 ; that the negroes in controversy ■ were conveyed to the said Charles Moore, in trust, to secure the payment of said debt, which deed was filed for record on the 17th day of April, 1837.
    It was further admitted, on the trial, that the debt mentioned in the deed of trust was the debt upon which Flack obtained judgment against Samuel Thornhill, and that it was under this judgment that the negroes were sold when Tupper became the purchaser; that the negroes now in dispute are those mentioned in the deed of trust; that the judgment was satisfied with the proceeds of the sale of the negroes and other property conveyedin the trust; that the judgments of the plaintiffs in the execution in the court below, were rendered after the debt secured by the trust had fallen due.
    The counsel for the plaintiff in error, the claimant in the court below, requested the court to charge the jury, “ That if they believe, from the testimony, that default was made (by Thornhill) in the payment of the note (to Flack,) in said deed of trust, before the rendition of the judgments for the plaintiffs (in the execution,) that then Samuel Thornhill had not such an interest in said slaves as was the subject of a levy and sale at that time.”
    That if the jury believe that the condition of the deed of trust was broken before the time the plaintiff’s judgment was rendered,' and said deed was not at that time satisfied, that then said judgment was not a lien at the time of its rendition.
    Which instructions fhe court refused to give. To the opinion of the court the claimant excepted, and filed his bill of exceptions, and prosecuted this writ of error.
    Hughes, for plaintiff in error.
    The judgment of the plaintiff in the issue was not a lien upon the property in contest, because at that time the condition of the deed of trust was forfeited, the money mentioned in the deed was due 1st February, 1838, and was not paid, and plaintiff’s judgment was rendered on the forfeited bond the 15th October, 1838. The property at the rendition of the judgment was absolutely in the trustee, was his with which to pay the debt, and Samuel Thornhill had no interest. See Ackly v. Finch, 7 Oow. 290; Brown v. Bement &f Strong, 8 Johns. R. 96.
    
      Before the lien of the judgment could attach, the execution from the United States circuit court, which was for the debt secured by the deed of trust, was levied on the property, and by a sale under the execution, the deed of trust and execution were satisfied. The sale, of course, must have been made with the consent of the trustee ; it does not so appear by the record, but the law will so presume the property was conveyed to Elijah Thornhill, so that at no time did the lien of plaintiff’s judgment attach on said negroes, and the court should so have charged the jury.
    
      Brien, on the same side.
    Before the rendition of the judgment of the plaintiff in the execution, Samuel Thornhill had parted with the legal title to the slaves, by deed of trust, and had only an equity left him, which would not be sold under an execution at law. Life v. Mitchell’s Lessee, 2 Yerg. 400. Shute v. Hurder, 1 Ib. 1.
    A judgment is not a lien upon a mere equity, and such an interest cannot be sold on execution. Jackson v. Chapin, 5 Cow. R. 485.
    When there is a mortgage to secure the payment of debt by a particular time, and payment is not made by that time, the title to the property becomes absolute in the mortgagee. Ackly v. Finch, 7 Cow. 290. Brown v. Bement Strong, 8 Johns. R. 96.
    
      T. C. Tupper, for defendant in error.
    The errors complained of are alleged to consist in the refusal of the court below to give the instructions asked for to the jury.
    These instructions were properly refused,
    1. Because they are incorrect, even as abstract principles of law.
    
    This deed of trust was a conveyance of property, not for'the payment of a debt by sale of the property, but as security for the payment of the debt, and the property was all subject to redemption on the payment of the debt. It was a mere pledge, a security, which must be revested in the grantor, on his paying the amount thereby secured. In this respect the rights of the grantor are similar to those of a mortgagor ; and it will not be contended that the interest of a mortgagor in mortgaged property cannot be taken and sold under executions against him.
    The object, intention, and effect of this deed of trust is wholly different from an assignment by a debtor of his property to a trustee, for the expressed purpose of being sold, and the proceeds applied to the payment of his debts. In the latter case, there are one or two decisions in New York, to the effect, that the resulting interest of the assignor is not subject to execution. And -why 1 Because the assignor has parted with all right, title, and claim, to the specific property conveyed. He has only a residuary interest in' the proceeds, which, having the character of a chosri in action, cannot, perhaps, be taken in execution. A deed of trust, made to secure a debt, has no such effect. It is made with the express condition that, by a payment of the money, the property is redeemed; and the idea of a sale of the property is never contemplated. But it is contended that, on the rendition of Gilmer & Webb’s judgment, the time stipulated for the payment of the debt had passed, and the title vested absolutely in the trustee; and the cases in 8 Johns. R. 96, and 7 Cow. R. 290, are cited by counsel to sustain this position. On an examination of those cases it will be seen, that an absolute conveyance and delivery of the property was made,, with an agreement, on the part of the vendee, that if a certain sum were paid at a certain time, the property should be restored. This was decided to be a mortgage; and after the time fixed for the payment of the money had passed, the absolute interest vested in the mortgagee, for such were the terms of their agreement.
    Those cases, it is believed, have no analogy to the case at bar. This is a deed of trust, and not a mortgage. By the terms of the deed, the property could not possibly vest absolutely in the trustee, because no consideration had passed from him; nor in the cestui que trust, without a sale under the deed. The right to redeem, then, must of necessity have existed in the grantor, until the trustee should take possession of the property and sell it, under the provisions of the deed. In this respect, this conveyance more nearly resembles a pledge than a mortgage; and “ if the pledge was not redeemed at the time stipulated, it did not become the absolute property of the pawnee, but he must commence proceedings for authority to dispose of the pledge.” 2 Caines’s Cases in Error, 200. So in a deed of trust} the property pledged could not become the absolute property of the trustee, &c., but he must resort to the provisions of the deed to dispose of it. But the deed of trust never was resorted to; the possession of defendant (the grantor in execution,) never was disturbed, and the deed was extinguished by sale under execution. Now suppose the grantor had paid the debt in some other way, would he not have as effectually satisfied and extinguished the deed, as if it were done by sale under execution ? This right, then, still continued in the grantor, up to the time of the satisfaction of the debt; and this interest, whatever it was, was certainly subject to the executions of Gilmer & Webb, and G. W. Ish, at the time of their rendition.
    2. But granting that the instructions contain correct abstract principles of law, still the court below very properly refused them; because they were wholly irrelevant to the issue before the jury, and could not have changed their verdict. Loring v. Wallis, 4 How. 387. 6 lb. 46.
    I. If the principle contended for in the instructions be correct, does it not equally apply to the execution under which Elijah Thornhill, the claimant, claims to derive his title to the slaves 1 If so, he has no foundation for his claim. If the grantor in this deed, after condition forfeited, has no interest subject to sale under execution, a purchaser can obtain no valid title under such an illegal sale; and yet, this .is the only title set up by the claimant. But the execution under which he claims, was founded on the debt secured by the deed of trust. Does this make h'is condition better ? I know of no rule of law, by which a purchaser under an execution can fortify his title by the provisions of a deed of trust, that is dead, and was never called into action. On the contrary, his condition is worse than a purchaser under any other execution.
    
      “ A mortgagee cannot cause an execution to be levied on an equity of redemption, for the purpose of paying or extinguishing the debt secured by the mortgage.” Atkins v. Sawyer, 1 Pick. R. 351. The same doctrine is held by the Chancellor of this state; and in the case of Tice v. Annin, 2 Johns. Ch. R. 125, the same rule is intimated. If the same rule be applied in cases of deeds of trust, then the claimant has no shadow of a title to the property.
    The deed of trust being satisfied, the lien of Gilmer & Webb’s and Ish’s judgments attached at that moment, even if it did not at the time of their rendition, particularly as they are older than the one under which claimant derives his title.
    2. The issue before the jury was not simply, whether the property was subject to levy and sale at the time of the rendition of Gilman & Webb’s judgment, but the true question was, did the lien of that judgment ever attach to the property, from the time of its rendition in October, 1838, up to March, 1842, the time of the levy.
    Now the object and effect of the deed of trust was a pledge to secure the payment of a debt. The creditor does not resort to that security, but elects to pursue his usual remedy at law — obtains his execution, levies it upon the property conveyed in the deed of trust, and by a sale satisfies the debt, and extinguishes the conveyance. Now, if such a sale be legal at all, the title of the purchaser of the property must be based alone upon the judgment and execution. He purchases, of course, subject to all older judgments, (for it has been repeatedly decided by this court, that a sale under junior executions cannot defeat the lien of older judgments.) See Andrews v. Wilkes, 6 How. R. 554. How then can the claimant, professedly deriving his title under a junior execution, defeat the lien of Gilmer and Webb’s judgment. He wishes to do it by means of the deed of trust. But the cestui que trust had discarded that remedy, and elected another. Could a purchaser claim greater rights than the holder of, the deed of trust himself, had he purchased under execution ? He himself could not fortify his title by the deed of trust, after he had adopted a different remedy. See Hooker v. 'Olmstead, 6 Pick. R. 481.
    But.this' point has been decided virtually by this court. In the case of Hunter’s Administrator v. Hunter and Dougherty, Walker’s R. 194, it was a question as to the appropriation of the money arising on the sale of mortgaged property under divers executions. Thq youngest execution was founded on the mortgaged debt, and it was contended that this execution must convey the title to the property, and was entitled to have the proceeds of the sale of the property appropriated to its payment. But the court held that all the older executions must first be satisfied; that a sale, under th'e execution for the mortgaged debt did not defeat the lien of the older judgments.
    The same doctrine is held in Tice v. Annin, 2 Johns. Ch. R. 1.25.
    Thus the judgment and execution being the,only muniment of title, and the claim being founded on a junior execution, the older judgments .of Gilmer and Webb, &c. have a priority of lien, which may at any time be enforced.
    All the foregoing conclusions are deemed correct, even on the supposition that the claimant may be' regarded as the purchaser, or entitled to all the rights of a purchaser under Flack’s execution.
    But it is conceived he cannot, according to the facts developed, sustain that position. Samuel Thornhill, the defendant in execution, according to the facts, became the real purchaser of the slaves, through his agent, Tupper. Tupper, by previous agreement with Samuel Thornhill, advanced the ■money and bid off the property, took a conveyance from the marshal to himself to secure the repayment of the money, and the money thus advanced must be regarded as a loan, and the conveyance of the marshal only as a mortgage to secure its repayment. The amount of the purchase money was afterwards paid by Samuel Thornhill, according to his testimony on the trial of the case below. Now, the moment that Samuel Thorn-hill repaid to Tupper the amount advanced for the purchase of the slaves, the title was vested absolutely in him, Samuel Thornhill, without any conveyance. It is in proof that Tupper never had possession of the slaves, but that Samuel Thornhill never gave up possession after the sále under execution. No conveyance therefore was necessary to vest in him a complete title to the property. And that property was subject, eo instanti, to the executions of Gilmer and Webb, and others. Such being the case, could the lien of these judgments be defeated by a conveyance to Elijah Thornhill, the claimant 1 That conveyance was made after the slaves had been purchased and paid for, by Samuel Thornhill. This conveyance, at best, was but the lean, naked legal title, and Elijah Thornhill stood seized to the use and benefit of Samuel Thornhill. And this interest is subject to sale under execution. See 4 Wend. R. 462. As to the supposed debt from Samuel to Elijah Thornhill, alluded to, there is no evidence of the existence of such a debt. And even if such a debt could in any manner affect the lien of the judgments in this case, (which is denied) the court will not certainly, without some proof of the fact, presume its existence. It should be remarked, also, that- Elijah Thornhill, the claimant, appears to have had nothing to do in the purchase of the slaves, nor even to have had possession of them.
    But it may be insisted that there is still an outstanding title in the property, by virtue of the deed of trust. It is a well settled principle that no release is necessary to restore title to the mortgagor or grantor after the payment of the money intended to be secured. See Jackson v. Davis, 18 Johns. R. 7; and Jackson v. Crafts, lb. 111.
   Mr. Justice Teacher

delivered the opinion of the court.

This was writ of error to the circuit court of Madison county. In a trial of the right of property in two slaves, the following facts were admitted to be the state of the case. The defendants in error were the plaintiffs in execution, issued upon a judgment obtained by them against one Samuel Thornhill, in the circuit court of Madison county, in May, 1838, upon which a forthcoming bond was given, after the forfeiture of which, in October following, an execution was issued, and upon the 10th of March, 1842, levied upon the slaves in question as the property of Samuel Thornhill, which are now claimed by Elijah Thornhill, the plaintiff in erroif; that one Rufus K. Flack also obtained a judgment against Samuel Thornhill in the United States circuit court of his district in June, 1838, an execution issued find a forthcoming bond given, which, having been forfeited in November following, an execution thereon was issued, which was levied on the slaves in question, which were sold by the marshal in April, 1839, and purchased by T. C. Tupper; that the slaves were in the possession of Samuel Thornhill up to April, 1839 ; that upon the sale under Flack’s execution, it was agreed between Samuel Thornhill and Tupper, that the latter should purchase the slaves at marshal’s sale for Elijah Thornhill, and should convey them to him in part payment of a debt due by Samuel to Elijah, and should permit Samuel to keep possession of the slaves until he had built a house for Tupper, which he had agreed to do for $1000 less than the usual- price, the possession of the slaves being the consideration for the reduction in the price; that Tupper permitted the slaves to remain in the possession of Samuel until 1840, when he conveyed them to Elijah, who resided in the same house with Samuel. The evidence shows also a deed of trust, recorded in 1837, from Samuel to one Charles Moore, upon the slaves in question, to secure Flack for the payment of the note which was the foundation of the action upon which he obtained judgment in the United States circuit court as before stated, and which note matured in February, 1838. The deed of trust contained a provision that Samuel was to be permitted to retain possession of the slaves until he made default in the payment of the note secured to be paid by the deed, and upon such default, Moore was allowed to sell the slaves at auction. The debt secured by the deed of trust was fully satisfied by Flack’s execution. The foregoing being the state of facts presented by the evidence, the claimant requested the court below to instruct the jury that if'they believed that default was made in the payment of the note secured by the deed of trust before the date of Gilmer & Webb’s judgment, that Samuel Thornhill had not such an interest in the slaves as was the subject of levy and sale at that time; and that if they believed that the condition in the deed of trust, by which Samuel was to keep possession of the slaves, was broken by Samuel before the date of Gilmer & Webb’s judgment, and the deed was not at that time satisfied, then the judgment was not a lien upon the slaves at the time of its rendition. These instructions were refused by the court below, and a verdict was rendered in favor of the plaintiff in the execution.

The deed of trust above-mentioned, so far as it is concerned in this case, is made upon personal properly. Whether we view the instrument as a mortgage, a deed of trust, or as a mere pledge of property, the legal result is the same. The legal effect and operation of a mortgage of personal property, after the condition is forfeited, is to invest the mortgagee with an absolute interest in the property mortgaged. Brown v. Bement & Strong, 8 Johns. R. 96. Ackly v. Finch, 7 Cowen, 290. A deed of trust is an absolute conveyance in trust for the payment of a debt. The grantor has only contingent interest. The trustee holds the property first for the payment of the debt secured by the deed, and then for the benefit of the grantor, if any amount should remain after that debt is satisfied. This is not such an interest as can be reached by an execution. Bogert v. Perry, 17 Johns. R. 350. A pledge of property is subject to the same rule. In Story on Bailments, 238, it is said that goods pawned are not liable to be taken on execution in an action against the pawner. So in the case of Badlam v. Tucker, et al., 1 Pick. R. 400, it is said, that until payment or tender of payment of the money due to the mortgagee or pawnee of goods and chattels, it is very clear that the creditor of the mortgagor or pawner has no remedy against them by attachment and execution. Equities and rights to redeem are not subject to execution at common law, because where there is no legal right, there is no legal remedy. Scott v. Scholey, et al., 8 East, 467; Badlam v. Tucker, et al., 1 Pick. R. 399. We know of no statute of this state which authorizes a creditor to seize in execution a right to redeem goods and chattels. Besides, this execution was levied on the slaves themselves, and not upon such an equity. It is true that it hence follows that the levy under Flack’s execution was also unauthorized, and a sale under it conveyed no legal title to the slaves, although perhaps, the purchaser and his assigns may be subrogated in equity to Flack’s rights under the deed of trust; but in a trial of the right of property seized in execution, the rules which regulate and govern it are the same that regulate and govern the trial of an issue in an action of detinue; and the burden of proof being upon the plaintiff in the execution, if no title is made to appear in the defendant in the execution, the plaintiff’s case is defeated equally as well as if a paramount title were established in the claimant. We think the instructions were improperly refused by the court.

The judgment is therefore reversed, and a new trial awarded.  