
    John W. Prewett vs. Newnan H. Dobbs.
    On the 17th of February, A. D. 1845, M. executed a bill of sale of a slave to P., and received therefor from P. $ 150 in money and P.’s note for $200, due in two years' thereafter; M. retaining possession of the slave, and agreeing verbally with P., that if M. should, by the maturity of the note made by P., pay the purchase-money, $350, to P., and should pay hire for the slave at the rate af $ 37.50 per annum, the contract of sale should be rescinded; the next day P. gave M. a written memorandum to a similar effect; the slave, at the time, was worth $550, and her annual hire $85 per annum : Held, in view of these facts, the contract between P. and M. was a mortgage, and not a conditional sale.
    The statute (Hutch. Code, 606, $ 5,) regulating the liens of mortgages and deeds of trust, and the period of their talcing effect, does not apply to mortgages executed out of this state on property out of the state ; and therefore where such property, so mortgaged abroad, is afterwards brought into this state, the mortgagee does not lose his right by omitting to record his mortgage in this state, even as against bona fide purchasers for value, without notice of such mortgage.
    While personal property under mortgage is not subject to seizure and sale under execution, or ordinary attachments at law, a different rule prevails as ! to distraints for rent, under the statute (Hutch. Code, 810,A 10,) which pro vides, that “any limited property or interest” in the goods and chattels attached, may be distrained and sold for such interest as the tenant may have.
    In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.
    John W. Prewett instituted an action of replevin against Newnan H. Dobbs, to recover the possession of a woman slave, seized by Dobbs as constable of Monroe county, under a distress warrant for rent, at the suit of J. G. W. Mallett against Wiley Marcum and William Marshall. The facts proved on the trial are sufficiently stated in the opinion of the court. The written agreement, executed by Prewett to Marcum on the day succeeding the latter’s bill of sale to the former, of the. slave in controversy, was in these words, viz.:
    “Know all men by these presents, that I, John W. Prewett, of the county of Tuscaloosa, and state of Alabama, do bind myself, my heirs, administrators, and assignees, to make to Wiley Marcum, or cause to be made, the right and title of a negro girl, known by the name of Mary, about fourteen years of age, on or before the 17th day of February, 1847.
    “ The condition of the above obligation is such, that if the •said Wiley Marcum pays the just and full sum of three hundred and fifty dollars, on or before the 17th day of February, 1847, I bind myself, my heirs, and assigns, to make him a good and sufficient title to the said negro girl, or otherwise to be null and void, or remain in full force in law and equity. Signed, sealed, and delivered, on the 18th day of February, 1845. John W. Prewett.”
    The plaintiff’s counsel moved the court to give the following instructions to the jury, which were given by the court :
    1. That if the jury believe, from the testimony, that the negro girl Mary was, bona fide, the property of the plaintiff, and that he was entitled to the immediate possession, at the time of the distress, the taking was wrongful, and they must find for the plaintiff.
    . 2. That if the jury believe, from the testimony, that the plaintiff’s bill of sale was converted into a mortgage, by the bond entered into on the 18th day of February, 1845, the mortgagee has the legal title, and the right to the immediate possession of the thing mortgaged, and they must find for the plaintiff.
    3. That to convert an absolute bill of sale into a mortgage, there must be a binding agreement upon the mortgagor to refund the money, which could be enforced by the mortgagee, and unless the defendant has shown such agreement, they must find for the plaintiff.
    4. That in cases of conditional sale, the property passes to the vendee, and remains in him until defeated by the performance of the condition, on or before the day stipulated.
    5. That if the jury believe, from the testimony, that the plaintiff had a lien, upon the negro, as a mortgagee, that the action of replevin may be maintained, and they must find for the plaintiff.
    The defendant’s counsel moved the court to give the jury the following instructions, which were given by the court:
    1. The defendant asks the court to instruct thé jury, if they are satisfied from the evidence, that Prewett only had a mortgage on the negro girl, Mary, that they are to find for the defendant.
    2. That the jury are to take, as evidence, all the circumstances of the case, the inadequacy of price, the inadequacy of hire, if there be any, the retaining possession by the vendor, Marcum, if such was the fact, the bringing her from Alabama to Missis-, sippi, and all the circumstances.
    3. Although a bill of safe purports on its face to be absolute, yet the defendant here may show, by parol and other circumstances, that the parties intended a mortgage; and if the jury are satisfied such was the case here, they must find for the defendant.
    4. That, before Prewett can recover in this case, the jury must be satisfied, from the evidence, that he- had the right to the immediate possession of the slave, at the time the -suit was brought.
    5. If the testimony shows that a contract was made between the parties, in reference to this negro, Mary, by which the title passed to Prewett, subject to be divested upon the performance of a condition subsequent, then it is a mortgage.
    6. That if the jury believe the bill of sale, made in this case, was intended to operate as a security for the repayment of money, it will make it a mortgage.
    7. That if the jury believe this contract is either a conditional sale, or a mortgage, yet if, by the contract, Prewett agreed that Marcum should have possession until the 17th day of February, 1S47, Prewett was not entitled to the possession until that period had elapsed, and therefore had no right to bring this suit before that time.
    8. That one man may have the legal title to property, but another man may have the right to the possession of the said property; and that this action of replevin cannot be sustained only by the party having the title to the property, unless he also has the right to the immediate possession.
    9. That it is not necessary that the mortgage should appear upon the face of the bill of sale; that it may be proved by parol testimony and by Circumstances, that a deed or bill of sale, absolute upon its face, was intended as a mortgage; and, if this is shown, or proved, it is as much a mortgage as if reduced to writing.
    The jury found for the defendant, and Prewett, on his motion for a new trial, being overruled, sued out this writ of error.
    
      John Goodwin, for the plaintiff in error, made the following points, viz.:
    1. Every contract for the. security of a debt, by the conveyance of real or personal estate, is a mortgage. Henry v. Davis, 7 Johns. Ch. Rep. 40; Conway's Executor v. Alexander, 7 Crahch, 218.
    2. B.y a grant or conveyance of goods in mortgage, the legal title passes conditionally to the mortgagee, and possession is not essential to create or support the title. Story, Bailm. 197; 2 Story, Eq. Juris. 296; 2 Kent, Comm. 557; 1 Pick. Rep. 389; 2,1b. 206, 249; 8 Johns. Rep. 96; 7 Cow. 290; 12. Wend. 61.
    3. The parol proof must be clear, decisive, and without doubt. 10 Yer. 373, 376, 530; 5 Litt. 74; 5 Stew. & Port. 67.
    4. Equities and rights to redeem are not subject to distress by attachment, or to execution at common law, because where there is no legal right there is no remedy. Scott v. Scholey et al., 8 East, 467; JBadlam v. Tucker et al., 1 Pick. 399; Valentine v. The Planters’ Bank, Freem. Ch. Rep. 727; Thornhill v. Gilmer, 4 S. & M. 153.
    5. He also reviewed the facts of the case, and insisted that they established a conditional sale, and proved the title to be in Prewett. On this point he cited 10 Johns. Rep. 57; 4 Kent, 445 ; 1 Johns. Ch. Rep. 282; lb. 376; 9 Yer. 183.
    6. But suppose the case to be a mortgage, as between Prewett and Marcum, it by no means cures the error in the instructions given for the defendant. It is clear that the legal title was vested in Prewett, Marcum having nothing but the equity of redemption, which is not subject to be distrained by an attachment. 1 Pick. 399. Nor is it liable to execution at law. 4 S. & M. 153. Was not the distress wrongful, and, as against a wrong-doer, Prewett entitled to the possession? 1 Durn. & East, 378 ; Dong. 21; Salk. 414; 16 Mass. Rep. 39.
    7. New trials will always be granted, when the verdict is contrary to law. 2 McCord, Rep. 26; 3 lb. 131. In any case where the law is not clear, and may have been mistaken, that alone is a reason why there should be another investigation. 5 Yer. 379; 1 Wash. C. C. Rep. 202. A verdict without evidence is contrary to law, and the court should always exercise the controlling power of granting a new trial. 3 McCord, 282; 1 John. Cases, 336 ; 2 S. & M. 638; 7 lb. 723.
    
      Lindsay and Copp, for defendant in error, insisted,
    1. That Prewett’s claim was a nullity for the want of record in this state. 4 Kent, 142; 2 Caines’ Cases, 200; Kelleran v. Brown, 4 Mass. 443; Clark v. Henry, 2 Cow. 324; 8 Johns. 75 ; Dunham v. Dey, 15 lb. 555; Broion v. Wright, 4 Yer. 57; Skinner v. Miller, 5 Litt. 85; James v. Johnson, 6 Johns. Ch. Rep. 417.
    2. The inadequacy of the price to be paid by Prewett, is one of the best tests by which to ascertain whether a mortgage was intended. Conway's Executors and Devisees v. Alexander, 7 Cranch, 218; and 2 Cond. Rep. Sup. Ct. U. S. 483; the case of Bennett v. Holt, 2 Yerg. 6, and the cases above referred to; Hudson v. Isbell, 5 Stew. & Port. 67.
    3. A deed^ absolute on its face may be shown to be a mortgage by parol proof. Friedley v. Hamilton, 17 S. & R. 70; Wharf v. Howell, 5 Binn. 499; Dabney v. Green, 4 Hen. & Mun. 101; Washburn v. Merrills, 1 Day, 139; Clark v. Henry, 2 Cow. 324; Murphy v. Tripp, 1 Monroe, 73; Slee v. Manhattan Co., 1 Paige, 48.
    4. And especially it may be so shown by a defeasance, and when accompanied by the defeasance, such defeasance makes it a mortgage, when the vendor, executing the absolute deed, remains in possession and holds the defeasance. Brown v. Dean, 3 Wend. 208 ; Lanfair v. Lanfair, 18 Pick. 299 ; Nugent v. Riley, 1 Mete. 117, 119; Cooper v. Whitney, 3 Hill, 95; 7 Watts & Serg. 335; Perkins v. Dibble, 10 Ohio, 433.
    5. And the defeasance may be executed subsequently, and contained in a separate instrument, and when so, will relate back to the principal deed, and connect itself with it. 4 Kent, 140 ; Harrison v. Trustees of Phillips Academy, 12 Mass. 456; Blaney v. Bearce, 2 Greenl. Maine, Rep. 132; Reed v. Landale, Hardin, Rep. 6; James v. Morey, 2 Cow. 246; Dabney v. Green, 4 Hen. & Mun. 101; Hughes v. Edwards, 9 Wheat. 489. And such absolute bill of sale and defeasance make a mortgage. Winslow v. Tarbox, 6 Shep. 132; Williams v. Rover, 7 S. ifc M. 556; Overton v. Bigelow, 3 Yer. 513; jBrown v. Wright, 4 lb. 57; 6 Paige, 480.
    6. But the great test is the intention of the parties. Did Marcum expect the sale to take effect? Did he intend that Prewett should have the girl, then worth five hundred and fifty dollars, for three hundred and fifty, and the girl sixteen years old, and increasing in value every day ? May Sp May v. Eastin, 2 Porter, 414: Crane v. Bonnell, 1 Green, Ch. R. 264.
    7. This contract was executory, and not to be completed until 17th February, 1847, and this very fact makes it a mortgage. Edrington v. Harper, 3 J. J. Marshall, 359.
    8. And whether the particular transaction constituted a mortgage, must depend upon the whole circumstances of the case. The testimony of Skelton is, that it was agreed that if Marcum paid the purchase-money back, when the said note of two hundred dollars became due, say 17th of February, 1847, the bill of sale was to be null and void, and the contract to be rescinded. This was clear proof the contract .was executory, as above stated; that Prewett’s title could not, by his contract, vest and become complete until 17th of February, 1847. This, in connection with the inadequacy of price, the inadequacy of hire paid by Marcum, and all the circumstances, leaves no doubt this was a mortgage. Robertson v. Campbell, 2 Call, 421; King v. Newman, 2 Munf. 40; Prince v. Beasden. 1 A. K. Marsh. 170; Oldham v. Halley, 2 J. J. Marsh. 114; Thompson v. Davenport, 1 Wash. 125.
    9. And to constitute a mortgage of personal property, it is not necessary that there should be any collateral or personal security of the debt secured by the mortgage. Smith v. People's Bank, 11 Shep. 185.
    10. Continuance of possession by the mortgagor is prima facie fraudulent, and the proof of the fairness of the transaction rests upon' the party claiming under the mortgage, and this is for the jury. Smith v. Acker, 23 Wend. 653; Cole v. White, 26 lb. 511; Russell v. Butterfield, 21 lb. 300; Wright v. Bates, 13 Verm. 341.
    11. Wherever it is doubtful whether a mortgage or a sale is intended, the courts consider it a mortgage. Poindexter v. McCannon, 1 Dev. Eq, 373; Skinner v. Miller, 5 Litt. 84; Secrest v. Turner, 2 J. J. Marshall, 471; 3 lb. 354; Bright et al v. Wagle, 3 Dana, 253; Dougherty v. McColgan, 6 Gill & John. 278.
    12. The question whether a transaction was intended a mortgage, is a question of fact to be determined by the jury. Hopkins v. Thompson, 2 Porter, 433; Greene v. Dingley, 11 Shep. 131.
    13. Our statute expressly requires that the mortgage should be recorded, and it is good and effectual from the time of its delivery for record. Hutch. Miss. Code, 606, § 5.
    14. This court will not disturb the verdict unless it. is clear that injustice has been done, and the result will be different. Jenkins v. Whitehead, 1 S. & M. 157; Dickson v. Parker, 3 How. 219; Baynton v. Fennall, 4 S. & M. 193; Leflore v. Justice, 1 lb. 381.
   Mr. Justice Smith

delivered the opinion of the court.

Wiley Marcum and Marshall, as it was alleged, being indebted to J. G. W. Mallett for rent, an attachment at his instance was sued out and levied, Feb. 22, 1847, on a female slave, as the property of said Marcum. Dobbs, who is defendant in error, was the officer who levied the distress, and look the slave into his possession. Prewett, the plaintiff, claimed title to the property attached, and brought an action of replevin in the circuit court of Monroe, where, upon trial, verdict and judgment were rendered for the defendant.

After the evidence was closed, the jury was charged on points involved in the contest, at the instance of both plaintiff and defendant. The instructions given at the request of the defendant present some of the questions which we are required to decide.

Upon the return of the verdict, the plaintiff moved for a new trial, and the motion being overruled, he tendered his bill of exceptions to the judgment on the motion. The evidence adduced on the trial is contained in the bill.

From this evidence, it appears that Prewett claimed the slave in controversy by virtue of an instrument in writing, which upon its face purports to be an absolute bill of sale. The consideration stated is $350, which is stated in the bill of sale to have been received by the vendor. The bill of sale was made in the state of Alabama, by Wiley Marcum, to plaintiff, and bears date the 17th of Feb. 1845. Its execution and delivery is proved by Skelton the subscribing witness, who also proved that Prewett, at the time of the execution of the bill of sale, paid Marcum $150 in cash, and gave to him his note for $200 more, payable on the 17th of Feb. 1847. Skelton further proves that, at the time of this transaction, there was no other contract in writing entered into by the parties, but that it was verbally understood between them that if Marcum should repay the purchase-money, $350, at or before the maturity of the note made by Prewett to him, and should pay him for the girl at the rate of $37.50 per annum, the contract of sale was to be rescinded. Marcum was to retain possession of the slave.

It was likewise in proof that Marcum held a writing, executed by Prewett, bearing date the 18th of Feb. 1845, by which Prewett in effect covenanted to make to Marcum a good and sufficient title to the said slave, upon condition that Marcum should payjhim $350, at or before the 17th of Feb. 1847; that this girl,; at the date of the alleged sale, was worth $550 ; that her hire was worth $85 per annum, and that she was brought into this state in the early part of the year 1846. There was no proof of the registration of the^bill of sale, or of the agreement to reconvey, in Alabama or Mississippi, nor was there, any evidence introduced to show what was the law of the state of Alabama, in regard to the registration of instruments of that character. *No objection was made by either party to the introduction of any evidence contained in the record.

Upon this evidence the court charged the jury for the defendant, that if they were satisfied from the evidence that the plaintiff held only a mortgage on the negro girl in controversy, they should find for the defendant. This instruction constitutes' the chief ground of objection to the ruling of the court. It is evident the .case was made to turn upon the question, whether the transfer of the negro girl to the plaintiff was an absolute sale, or a conveyance in the nature of a mortgage. The remaining instructions given for defendant were intended to explain to the jury what is meant by a mortgage, and to enable them, by an application of the evidence, to ascertain whether the conveyance before them was or was not a mortgage. They propound the law correctly.

If the sale of the slave was absolute and unconditional, the verdict was erroneous upon the law and the facts. But it is insisted that the conveyance was in fact a mortgage, and as it had not been recorded where executed nor in this state, it was inoperative as to the rights of the attaching creditor, who occupied the attitude of a subsequent bond fide creditor without notice.

Did the conveyance, under the circumstances, constitute a mortgage ?

The clear and certain intention of the parties to a conveyance, must determine its character. Hence a deed absolute on the face 'of it, will be held to be valid and effectual as a mortgage, if it clearly appear that it was designed by the parties thereto to operate as a security for the repayment of money. And such intention may be shown by an agreement in the deed, or in a separate instrument contemporaneously or subsequently executed, or by an agreement resting in parol. 4 Kent’s Com. 141, 142; Clark v. Henry, 2 Cow. R. 324; 12 S. & M. 306.

There is no ground to doubt that the parties to the transaction under examination, intended the conveyance of the slave as a security for the money advanced by the plaintiff, and not as an absolute sale, independent of the written agreement of the'plaintiff, dated the day after the bill of sale, by which he covenanted’ to reconvey upon the repayment of the purchase-money. The parol agreement of the parties that Marcum should retain possession, that he should pay hire at a rate less than one half of its value, and that the bill of sale should be rescinded upon payment of the purchase-money by Marcum, on or before the day on which the note given by the plaintiff to him should fall due, clearly indicates such intention.

The conveyance from Marcum to plaintiff was a mortgage. The rights and obligations incident to the relation of mortgagor and mortgagee attached to the parties. The conveyance was executed in Alabama,and transferred property then located there; but we are not informed by the proofs in the cause, whether, by the laws of that state, a registration of instruments of this character is necessary, in order to protect the rights of the mortgagee against the claims of creditors or purchasers without notice. The fact then that the instrument, under which the plaintiff claims title, was not recorded in the state of Alabama; can have no effect on his rights in this controversy. But it is urged that the bill of sale being a mortgage is a nullity ; that the rights of the plaintiff acquired by virtue of the mortgage, so far as they are involved in the present suit, have been lost by his failure to have the instrument under which he claims recorded in the county of Monroe, where the property remained in possession of the mortgagor.

Mortgages and deeds of trust take effect, and are valid as to all persons from the date of their delivery to the registrar of deeds. Hutch. Dig. 606, § 5. If the instrument had been executed within this state, or had been made for the conveyance of property located here at the date of its execution, and which bad remained in the state down to the time when the rights of Mallett attached, no question could arise. But a question not altogether free from difficulty is presented when this statute is made to apply to mortgages, executed without this state, of property not located within her boundaries. The question has never before been directly presented, at most it has never received an express adjudication by this court. The language of the statute does not in terms embrace a deed of mortgage executed abroad, and the preceding section of the same statute evidently refers to deeds for property located within this state, or which might be removed from one county to another by the party in possession, and would seem to exclude the idea that the legislature intended to embrace the case of deeds executed in any of the sister states. As the intention of the legislature is extremely doubtful, and the policy of applying the provisions of this statute to mortgages and trust deeds executed abroad, very questionable, we deem it safe to hold that the statute does not govern in these cases.

Conceding, then, that the rights of the plaintiff, as mortgagee, have not been affected by his neglect in not having his title-deed recorded, the question next presented is, whether the equity of redemption remaining in Marcum was subject to be distrained and sold under an attachment for the rent alleged to be due by him.

In the case of Thornhill v. Gilman et al., 4 S. & M. 153, it was held by this court that the statute law of this state has not changed the rule at common law, by which equities and rights to redeem were not subject to seizure and sale under an execution at law. That was a case where personal property had been conveyed by deed of trust, and the interest of the grantor was held not to be a subject of sale under execution at law. In Goodwin v. Anderson, 5 Ib. 730, the interest of the vendee of real estate, who held bond for title, having paid part of the purchase-money, was holden not to be subject to seizure and sale under an execution at law. These decisions were made in reference to the provisions of the statute. Hutch. Dig. The first enacts, “that estates of every kind, holden or possessed in trust, shall be subject to like debts and charges of the persons to whose use, or to whose benefit they shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed, as they own, or shall own, in the uses and trusts thereof.” The latter directs that, “ when the sheriff shall sell lands and tenements, it shall be his duty to make such deeds, as may be necessary to vest in the purchaser all the right, title, interest, claim and demand, of the debtor, or defendant either in law or equity.” In these provisions there is no express declaration that the equitable interests of defendants in execution shall be seized and sold under execution. It was upon this ground, and the obvious impolicy of subjecting to execution sale an equitable interest, as the vendee would take, subject to the trust, and be compelled to go into equity to get an account, or redeem prior incumbrances, which might be done in the first place with less cost and delay, that courts have held that equitable interests could not be reached by execution at law. But it is apprehended that the directions of the law, in regard to sales under a distress for rent in arrear, are more explicit, comprehensive and imperative. The statute, Hutch. Dig. 810, <§ 10, provides that “if such tenant or person, bound or liable for such arrears of rent, or any portion thereof, shall have an limited property or interest in such goods and chattels, (which were attached on the premises,) the same maybe distrained and sold for such interest as such tenant or 0Qther person or persons, bound or liable for the payment of such arrears of rent, or of any portion thereof, may have therein.”

The terms “limited property or interest,” necessarily embrace every description of right or title, whether at law or in equity, which can be held to personal property. The direction, that stich limited property or interest might be distrained and sold for such interest as the tenant or other person bound for the rent in art-ear may have in the subject of the distress, is too explicit to admit of a construction which would exempt equitable rights from sale under an attachment for rent.

From this, it follows that the right of redemption, which existed in Marcum when the slave in controversy was distrained, was liable to be distrained and sold in satisfaction of the rent due by him; and the vendee at the sale would take his right or interest, subject to the legal title of the plaintiff. . The instruction was, therefore, proper, and the verdict correct.

Let the judgment be affirmed.  