
    Dust v. Conrod and Others.
    Decided, Feb. 8th, 1817.
    1. Arbitration and Award--Effect oí Award — Case at Bar. — lu a suit against the vendee of a slave, if he refer the controversy to arbitration, without being authorized to do so by the vendor who had bought and sold the slave bona tide, and when he might have cast the plaintiff in the ordinary course of law, he has no remedy in equity against such vendor, in the event of his losing the slave by an award.
    2. Mortgage -Defective Attestation Effect in Equity. —A mortgage being attested by one witness only, and thereiore defective; (see IR. C. ch. 90, § 1, 4, p. 157;) yet, if the mortgagee has recovered upon it at law, a Court of Equity will not regard the defect.
    3. Same* Recovery of Property by Mortgagee from Purchaser of Mortgagor — Effect its Equity. — tf the mortgagee of a slave recover him in detinue I against a person claiming under a bona fide purchaser from the mortgagor: Equity will consider such person, as standing in the place of the mortgagor, and entitled to redeem the slave by paying the debt.
    4.Same — Saíne—Same.—It will, also, at the same time, (to make an end of the controversy,) give ■him relief against the mortgagor, who sold the slave with warranty of the title.
    3. Arbitration and Award— Submission — Effect!-—Case at Bar. — In such case, the right of the derivative purchaser to redeem the slave, and to relief against the mortgagor, who improperly sold him, is not affected by his having submitted to arbitration, the suit brought against him by the mortgagee.
    Upon a Writ of Supersedeas, to a Decree of the Superior Court of Chancery holden at Winchester, the Record presented the following case.
    Daniel Conrod being security for his brother Frederick Conrod, in a forthcoming bond for the sum of five hundred dollars, the latter, on the 9th of September, 1800, executed an instrument intended to operate as a mortgage, to the former, of sundry slaves; a condition being inserted, that, if the sum therein expressed was not amply satisfied by the 10th of October ensuing, or sooner, if legally demanded, then the slaves, so made over, should be exposed to public sale; the money arising therefrom to go towards paying the debt, and the balance to be returned to said Frederick Conrod. This instrument was attested by one witness only, and recorded on his testimony, the 8th of April, 1801. The slaves having remained in the mortgagor’s possession, one of them, on the 2d October, 1800, was sold at public auction, as his property, (after being advertised as such,) at Winchester, where both the brothers resided, and bought by Michael M’Kewan, a bona fide purchaser, without notice of the mortgage, who afterwards sold him to Valentine Dust, against whom an action of Detinue was brought by Daniel Conrod, the mortgagee. Pending that action, the parties referred the subject in controversy to arbitrators, who, in April, 1804, made an award in favour of the plaintiff, upon which he recovered the slave. M’Kewan having sued Dust on his bond for purchase money, and obtained Judgment, the latter filed his bill in the Superior Court of Chancery, (making M’Kewan and both the Corirods defendants,) praying that Daniel Conrod should answer particularly, whether a bona fide possession ,of the slave was ever delivered to him by his brother ; whether he had not notice of the sale on the 2d of October, 1800, previous thereto, or afterwards, and at what time; whether the said sale was, or was not, intended for his benefit; and was not made, either at his suggestion, or with his knowledge, to pay off and discharge the forthcoming bond; that M’Kewan should be enjoined from farther proceeding on his Judgment; and for general relief.
    The Complainant alleged that Daniel Conrod’s title was defective at law, the mortgage being attested by one witness only; that the Award was obtained by sur-prize, in the absence of his witnesses and counsel, (who by sickness was prevented from attending,) and was founded on a mistake of the Arbitrators in point of law, though such mistake did not appear on its face, the grounds and reasons of the Award not being stated therein; that, even if Daniel Conrod’s legal title were indisputable, *a Court of Equity ought not to permit him to avail himself of it, or of any advantage he had gained at law, because he had quietly suffered M’Kewan, and afterwards the complainant, to purchase the slave, without informing them of his title, though he had full notice of the said M’Kewan’s claim.
    No answer was filed by Frederick Con-rod, who, it seems, had left the state, and .was said to be insolvent. An attachment was issued against him, the return on which was not stated; and no farther proceedings, to compel him to an answer, appeared in the Record. Daniel Conrod filed a Demurrer, Plea and Answer; demurring to so much of the Bill as questioned his legal title to the slave; because that title had been established by the judgment of a Court of Daw, and was not to be re-examined by a Court of Equity; pleading the Award of the Arbitrators, and its affirmance by the Court to which it. was returned, in part of a new trial of the action of Detinue; and answering, that the Award had not been obtained by surprize, but with every opportunity of a fair hearing of the Complainant, (who was present,) and of any testimony he might have been" disposed to adduce; that the sale of October 2d, 1800, was not made at the suggestion, or with fhe knowledge or consent of the Respondent; that he had no knowledge thereof until long afterwards; the precise time not recollected; and that the proceeds, if any payment was ever made by M’Kewan, were never applied towards the discharge of the forthcoming bond, nor in any manner whatsoever to the“ benefit or relief of the Respondent; that the debt had totally fallen upon himself, most of which he had paid out of his own pocket, and that the property, conveyed to him as aforeasid, was entirely insufficient for his indemnification ; denying, also, all the charges of fraud on his part.
    Michael M’Kewan, (among other allegations) in his Answer, insisted that it was an improper act in the Complainant to take the action of Detinue out of the usual course of proceedings at law, by leaving it to Arbitration ; in doing which, he did not consult or advise with him, (M’Kewan;) that if he had been consulted, he never would have consented to that measure; and it was very clear that, if a trial had taken place in a Court of Law before a Jury, where the aid of counsel would have been had, the Bill of Sale, under Daniel Con-rod claimed and recovered the slave, would not have been permitted *to go to the Jury, as conclusive evidence of title, without proof of a real and bona fide sale and possession passing therewith; the contrary of which could have been proved.
    By order of the Chancellor,. a Commissioner reported, that the value of the slaves, mentioned in the mortgage from Frederick to Daniel Conrod, was, at the date thereof,. $1100; that Harry, the slave in controversy, was worth $200; that Daniel Conrod, and after his death his administrator, had paid in all, the sum of $644 99, on account of the debt, for which he was security for Frederick Conrod; and that a balance remained due of $207 49, for which his estate-was liable. It appeared by the Bill of Sale from Frederick Conrod to M’Kewan, that Harry was sold to him for the sum of seventy-one pounds, and Frederick Conrod warranted the title against all persons whatsoever. It farther appeared by the Commissoner’s Report, that the other slaves in .the mortgage were given up, or sold, to Adam King, agent for Benjamin B. Morris, for another debt, due from the said Frederick Conrod and a certain Robert M’Mun,, and were taken to Philadelphia; and that, since the death of Daniel Conrod, Harry had 'been sold, by his administrator, to David Holmes, Esq.
    No depositions were taken on either side.
    O.n the 6th of July, Chancellor Carr, decreed, that the injunction be dissolved, and the Bill dismissed with costs.
    In the Petition for the Supersedeas, the following errors in the Decree were relied upon:
    1. Though the Bill had been filed against Frederick Conrod among others, and never came on to be heard as to him, who never answered, but was in contempt; yet it had been dismissed generally, and costs awarded to the defendants.
    
      2: The Award ought to have been set aside, as it was manifest that Conrod claimed under a defective mortgage.
    3. Even if the Award, in relation to the legal title, was not to be disturbed, still Daniel Conrod was only a mortgagee; and, instead of dismissing the Bill, which had the effect of turning the mortgage into a complete title, the Chancellor should have prosecuted the inquiry to discover for what sum negro Harry was to remain liable under the mortgage, and directed a sale of Harry to satisfy such sum, and the balance to be paid to the Complainant; since he was clearly entitled to Harry; subject to *the mortgage claim .which ought to have been ascertained. Moreover, there being a prayer for general relief, the Bill, in one aspect, was a bill to redeem ; and Frederick Conrod should have been brought before the Court, before a final decree could be pronounced, in as much as he only was conusant of the accounts between himself and his brother.
    Leigh for the plaintiff in error.
    No Counsel appeared on the other side.
    
      
      See monographic note on "Mortgages” appended to Forkner v. Stuart, 6 Uratt. 197.
    
    
      
      See generally, monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gra.tt. 684.
    
    
      
       Note. That such possession was never delivered, was. by evident implication, though not expressly, admitted in Daniel Gonrod’s answer.— Note in Original Edition.
    
   February 8th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Decree is to be affirmed, so far as it dismisses the Bill as to M’Kewan, and to be reversed as to the residue, with the costs against Daniel Conrod ; and the cause to be remanded, to enable the plaintiff, as standing in the place of Frederick Conrod, to redeem the slave in question, after paying the debt comprized in the mortgage, and for the farther purpose of proceeding against the said Frederick Conrod, under" his warranty of the slave aforesaid.  