
    JOHN M. INGRAM, ADM’R, vs. JOHN SMITH.
    In order to rebut the presumption, under the Statute, of the abandonment of the right of redemption in a mortgagee, upon the ground of great mental distress and decay of memory, if these can have such an effect, they must be established beyond all doubt; for the statute is one of repose and its provisions ought to be fairly carried out.
    In the case of bills for redemption of mortgages, it is, now, the usual course of the Court, not to require the mortgagor to pay the debt and costs by a given day, or that his bill shall stand dismissed, but, in default of payment, to order a sale of the subject, and out of the proceeds discharge the incumbrance, and then the surplus belongs to the mortgagor.
    Cause removed from the Court of Equity of Anson County, at the Spring Term 1849.
    The bill was filed in September 1841, and prays to redeem four negroes and their increase. The negroes were conveyed to the defendant early in 1824, and consisted of a woman, aged 17 years, and her three female children— one of the age of six years ; another, four ; and the youngest, about one. The consideration expressed in the deed is the sum of @711 36; and it has the following c’ause of redemption : ‘Now, if the said money with interest be paid to the said Smith on or before the 1st day of November, 1825, then the above obligation to be void — otherwise to remain in full force.” The instrument was registered in July 1839.
    The bill states, that the plaintiff had been a man of independent property, until within a year or two before he made the contract with the defendant: that he then became embarrassed and all his property was sold under execution, except this family oí negroes : that, for several years about that period, the plaintiff’s mind and memory were seriously impaired by the ruin of his pecuniary affairs : and that, although he always recollected having had dealings with the defendant, in receiving money from him, and conveying negroes to him, yet the amount of the money or the particular bargain in relation to the negroes entirely faded from bis memory; so that he had no knowledge thereof, until by the. registration of the instrument in 1839, he discovered, that it secured to him the rightoi redemption. The bill further states, “that some years ago, the plaintiff recovered bis health of body and mind, but found himself entirely w'ithout pecuniary resources, and was unable to redeem the negroes, had he even known that he had the right: But that the sum of $711 36 was far be!owr the value of the slaves at the time, and that thp defendant took the negroes into possession, and from them and their issue has received profits to the full amount of that sum and the interest on it.
    
    The answer states, that $711 36 was the full value of the negroes, and more than the defendant would have given for them, if they had not been all he could get for the debt, which the plaintiff owrnd him to that amount, for supplies for his family from a country store and money advanced for him in his distresses: That in fact and truth the transaction was a sale to the defendant in satisfaction of his debt, with an agreement, offered on the part of the defendant, to re-sell to the plaintiff, if he would pay him the same price and interest by the succeeding November: That after all bis other property had been sold, the plaintiff was still considerably indebted to others as well as to the defendant, and that be and his family wished to save the defendant from loss, on account of his kindness and indulgence to him, and therefore proposed to sell the family of negroes to the defendant, and that they settled and found the debts then to be $711 30, and in discharge thereof the plaintiff made an absolute sale of the slaves to the defendant, and took up all the evidences of the debts, and made him the bill of sale, which was, at first, drawn in an absolute form : But that, as the defendant did not want the negroes at the price, and the plaintiff had some children and a son-in law, who were in easy circumstances, the defendant hoped they might desire, and among them be able, to repurchase the negroes for the use of the plaintiff and his wife, and, with the view of inciting them to it, the defendant proposed to insert such a provision in the bill of sale, if the plaintiff thought it worth while; and that the plaintiff said, he would like such an arrangement, if it could be effected, and he would endeavor to bring it about; and that thereupon the defendant added the clause in the deed for the repayment of the purchase money : That, as the negroes would not be profitable to the defendant, and would be useful to the plaintiff’s wife for domestic purposes, the defendant, at her request, left them with her, until it should be ascertained, whether the plaintiff could induce any of his family or friends to repurchase them : that, in September following, Mrs. Ingram died and the plaintiff broke up house keeping, and, not being able in any manner to effect the re-purchase, the plaintiff then abandoned all idea of doing so, and left the negroes on the place for the defendant, and went to live among his children and friends, and had done so up to the filing of the bill: that, upon the death of Mrs. Ingram, the defendant took the negroes into his actual possession as his own absolute property, and has so claimed them ever since, and either had them in his own service, or advanced them to his children ; and that, during the interval, they have increased to the number of fifteen, and have yielded no profit, besides that of their increase, but been an expense. The answer denies positively any defect oí mind or memory in the plaintiff at anytime, and says, that he has always been a man of business and good understanding; and that ever since 1823, the plaintiff lived in the same county and neighborhood with the de* fendant, and knew the negroes and never set up any right to redeem them, nor pretended any claim whatever to them : and the answer thereupon insists, that, whether the transaction is to be regarded as originally a conditional sale, or a mortgage, the plaintiff is now entitled to no relief, by reason of his long delay and neglect.
    
      Strange, for the plaintiff.
    
      Winston and Ashe for the defendant.
   Ruffin, C. J.

Many witnesses have been examined, chiefly to the value of the negroes in 1823, and there is great disparity in the respective estimates. The evidence appears to the Court, rather to preponderate in establishing the sum mentioned in the bill of sale to be a fair price. Taking that to be so, and finding it proved, that upon the settlement made, when the deed was given, all the old bonds were given up to the plaintiff, and no new one taken ; that, shortly before the 1st of November 1S23, the plaintiff gave up the negroes and the defendant has held them over since, claiming them as his own and without an intimation, during the whole period, from the plaintiff of a claim to them, though residing with his children and other relatives near the defendant, and in the possession of ordinary faculties; and that, in fact, during the year 1823, the plaintiff was arrested by another creditor and took the oath of insolvency, and was discharged without giving in a schedule ; the probability might not be deemed slight, that the account is true, which the answer gives of the character of the transaction, as intended by the parties at the time. But the Court does not weigh that probability, as, perhaps.it could not be allowed to control the explicit terms of the writing, reserving a right to pay the money and thereby avoid the conveyance. Besides, it is not necessary, for the fur. ther reason, that, admitting the intention to reserve the right to redeem, we think it clear, both that it is to be presumed as a matter of law, and that it is established as a matter oí fact, that the plaintiff abandoned his right of redemption. By the act of 1826. the presumption arose upon the lapse of thirteen years after the day of forfeiture ; and here it was nearly eighteen to the filing of the bill, and the delay is insisted on in the answer. The plaintiff endeavours to rebut the presumption by the state of his mind and memory and his poverty. But he fails to establish any such defect as the former; and, clearly, his poverty has no bearing in the case, as the plaintiff does not assign that as the cause of his laches, but only says, that it would have prevented him from redeeming, if he had known that he had the right. But the truth is, that his poverty could have had no influence on his conduct, as he had all the time just the same means of suing as he had at last, and, indeed, might have sued in forma pauperis : and it is, now, the usual course of the Court not to require the mortgagor to pay the debt and the costs by a given day or that his bill shall stand dismissed, but, in default of payment, to order a sale of the subject, and out of the proceeds discharge the incumbrance, and then the surplus belongs to the. mortgagor. We need not say what effect mental distress and decay of memory, combined with poverty, would have had on the presumption, if they had been established. It may be remarked, however, that, in order to have any, they must be established beyond all doubt; for the statute is one of repos®, and its provisions are to be fairly carried out. Indeed, the obvious purpose of our law is to insist peremptorily on diligence in redeeming personalty, not only in point of policy for the sake of repose, but as an act of good faith towards mortgagees and those claiming under them; as is evinced by the act of 1830, which makes the failure to file a bill for the very short space of two years after the forfeiture, a bar forever. There is nothing to impair the statutory presumption of abandonment, but much to sustain it, as the actual truth in this case. It is not usual for a mortgagee to wish, nor the mortgagor to consent, that the former should take possession, when there is an intention and expectation to redeem — especially of such a family of slaves as this, which were undoubedly chargeable and troublesome. When, therefore, the plaintiffbroke up housekeeping on the death of his wife, and, leaving the negroes for the defendant, went to live with his children, no one of whom would, or was asked by him, to advance the money, and the plaintiff cotemporaneously obtained adis charge as an insolvent debtor, without taking any notice of a property or interest in these negroes ; and the defendant then took possession ami held it quietly for eighteen years under the eye of the plaintiff, who made no question of its rightfulness ; and then no security wras taken for the money but the conveyance ; the mind, under such circumstances, cannot fail to be strongly impressed with the belief, that the price paid, if not the full value, was about it — especially when there is corresponding proof on that point — and that the mortgagor had, consequently, little or no interest in redeeming, and in fact then abandoned the right. Such are our conclusions both upon thejmatter of law and the facts in this case ; and therefore the bill must be dismissed with costs.

Per Curiam.

Decree accordingly.  