
    Wm. Bartlett and Wife, Adm’r and Adm’x of Thos. Wurtz, v. Wm. Thynes.
    A release given by a weak man, to his general agent on final settlement, under the ciroumstanoes sustained in bar to a bill for an account. [*174]
    Where mortgaged negroes were, by an agreement endorsed on the mortgagee, left in possession of the mortgagee, and to continue there in' lieu of interest until the debt is paid, no length of time will bar the right of redemption. [*178]
    Such an agreement is not usurious unless the value of the hire so far exceed the interest as to manifest a corrupt intent. [*179]
    Charleston. — April, 1833.
    De Satjssure, Chancellor. It appears that the late Thomas Wurtz was a weak man, and so habituated to intoxication as to render him incapable of managing his own affairs. The Honorable Wm. Johnson, Judge of the Supreme Court of the United States, for some time kindly took care of him and his affairs, and protected him from injury by others. It being inconvenient to him to continue this superintendence, which also required closer and more personal inspection than he could bestow, he gave it up, but advised that Mr. Wm. Thynes should be employed for the purpose. This being agreed to, Judge Johnson drew up an agreement, in- his own handwriting, between Thomas Wurtz and Wm. Thynes, which bears date 9th August, 1816, and is duly executed under seal by both parties, Judge Johnson being a subscribing witness thereto. By this instrument it is stated that Thomas Wurtz was entitled to seventeen slaves and a sum of money for *the sale of some land on John’s ■ ‘ J Island, and the hire of his slaves, and that being conscious of his inability to conduct a plantation without .instruction and assistance, he therefore agreed to constitute William Thynes his sole absolute agent and attorney, to transact his affairs in his name and for his use, and to allow him one-half of the profits arising from his property, in full compensation for his services ; and William Thynes, on his part, agreed to negotiate on behalf of the said Thomas Wurtz, the purchase of a suitable tract of land, to be paid for out of the moneys of the said Thomas, and to remove to the same and settle and plant thereon with the negroes of the said Thomas, and faithfully to account to him for the proceeds thereof; and, in the mean time, that the said Thomas should be boarded in the house of the said Wiiliam, and be allowed reasonable lodging, board and clothing, and pocket money. The agreement to remain in force, and be irrevocable for and during the term of fourteen years, during which time the said. William Thynes shall apply annually the dividends of the said Thomas, to the purchase of such property as may be deemed beneficial, and take parental care of him in sickness and in health.
    In pursuance of this agreement, William Thynes took possession of the estate and effeqts of Thomas Wurtz, and managed the same ; and on the 20th December, 1822, they both executed a deed, or instrument of writing, by which they stated that they had an accounting settlement together, of and concerning the agency and management of the property of said Thomas Wurtz, had and exercised by the said William Thynes, under the power of attorney of 9th August, 1816, and that upon such accounting, the said Thomas Wurtz was found indebted to the said William Thynes in the sum of $615; whereupon it was agreed that the said power of attorney should be cancelled, and that the said Thomas Wurtz should pay or secure to be paid to the said William Thynes, the said sum of $615; and the said William Thynes, in consideration of the said $615, (to be paid or secured,) relinquished all interest and benefit under the said power, and consented that the same should be cancelled, and Thomas Wurtz discharged from all further demands on account of said property; and Thomas Wurtz covenanted and agreed, and did exonerate and discharge the said William Thynes from all and every other and further account, reckoning, claim or demand, of what claim or nature whatsoever, which he *had or might have by reason of his agency aforesaid, pqirg or for any other account whatever. *-
    Attached to and forming part of this instrument, there was another paper signed by Wm. Thynes, under seal, dated 20th Dec. 1822, by which he acknowledged to have received of Thomas Wurtz a promissory note for $115, payable on 1st January, 1821, and that two slaves, little Jack and Hester, mortgaged to secure the payment thereof, were in his possession, where they were to continue in lieu of interest, until said note be paid ; upon which payment he promised to deliver to the said Thomas Wurtz, his executors, administrators and assigns, the said slaves, with the issue.and increase of the females, if any, without delay or default; the purport of which receipt is endorsed on the mortgage given to him, the said William Thynes. A copy of the mortgage thus referred to accompanied the proceedings, and is in the usual form, dated 20th December, 1822, by which Thomas Wurtz mortgaged the two slaves, little Jack and Hester, to William Thynes, to secure the payment of $115, due on his promissory note, with interest, payable 1st January, 1821, and in default of payment, the said slaves to be sold, and the surplus, if any, paid over to said Wurtz. Mr. Joseph Bennett, a practising attorney of reputation, appears to have drawn and witnessed these papers.
    At the hearing of the cause, the deeds and instruments of writing were given in evidence. Mr. Robert Green, a witness, testified that he knew the negroes, Jack and Hester. Jack was likely and prime — was patroon of Thynes’ boat for a year or two ; also, worked on Thynes’ farm — was good for any work. The general hire for boatmen is $12 or $14 per month — field slaves worth from $40 to $60 per year. Hester worked chiefly about the house — worth about as much as ordinary slaves. She had two children. Both Hester and Jack in the prime of life. On his cross-examination, he stated that when he first knew him, Jack was a boy. When Thynes first had him, hired him at seven dollars per month — . he fed and clothed them. Wurtz left Thynes when he got married in 1819. The mortgage was in 1822. Witness did not know of any dealings between them. The two slaves were worth $100 per year, for the last five years. Common boat hands earn $12 per month. Wurtz was a weak man, the most foolish he ever knew.
    Mr. Lance testified that he knew Wurtz ; he was a very weak man, an imbecile, and almost an idiot. He forgot what he had done — sometimes he spoke well and with some acuteness.
    *1 til *The pleadings in this case are not made up with the accustomed ' J accuracy of the bar. There is no prayer to the bill, and it is stated to the Court, that the parties agreed the cause should come on, as if the common prayer was inserted.
    Two questions were made in this case :—
    1st. Whether the plaintiff is entitled to a general decree for an account, or was barred by the settlement and release in December, 1822.
    2d. Supposing the release obligatory, is the demand of the plaintiff to redeem the mortgaged slaves, on payment of the debt due by Wurtz to Thynes on note of hand, well founded, or is the right to redeem barred ?
    There is no doubt that Wurtz was a weak man, incapable of much mental exertion, but not an idiot. Judge Johnson, who knew his infirmity, advised the contract and arrangement with Thynes, and actually drew up the agreement in his own handwriting, and of course knew and approved the terms. This proves that he, who was a most competent-judge, did not consider Wurtz incapable of forming contracts which should be obligatory upon him, and that he thought Thynes a good man, fit to be intrusted with such a charge* and Such a power as was confided to him by Wurtz. Until Wurtz’s marriage in 1819, he appears to have lived contentedly with Thynes under the agreement. After that he went away, and the difference of his situation rendered it difficult to carry the agreement regularly or satisfactorily into execution. Accordingly, the parties came to a settlement in the year 1822. The power to Thynes was agreed to be cancelled, the parties had some accounting, and the balance of $615 was struck as due to Thynes. A release was executed by Wurtz, and he gave his note for the sum of $415, part of the said balance, with a mortgage of two slaves. It was this release which was attempted to be set aside. The bill, however, does not allege fraud in obtaining it. It does not allege false accounts or misrepresentations. It does not attempt even to surcharge and falsify. All, or most of this, 'would be necessary to induce the Court to open the accounts, much more to set aside the release. The settlement and release appear to have been made under the direction of Mr. Joseph Bennett, a gentleman of character and judgment. I believe the release now before me is drawn up in his handwriting, and I am bound to believe that he did not permit [*175 Thynes to practice a fraud on the weak Wurtz, of which *there is no sufficient proof. There is no moral or technical ground on which I am at liberty to set aside this release.
    The next question relates to the mortgage of the two slaves to secure the payment of the note of hand for $475. For it seems that $200 of the balance of $675 must have been settled in some other way, or given up voluntarily.
    The deed, or instrument, bearing date 20th December, 1822, from Wurtz to Thynes, recites that the former was indebted to the latter by note, for $475 payable 1st January, 1824, and the better to secure the payment, conveyed to said Thynes the slaves little Jack and Hester, - with proviso, that if the debt, with the interest thereon, be paid on or before 1st January, 1824, then the mortgage to be void; and in default of payment, Thynes was authorized to sell and dispose of the said slaves, and apply the proceeds to pay the said note, with interest, returning the surplus, if any, to Wurtz. Thynes, at the bottom of the mortgage, wrote an acknowledgment of the receipt of the slaves, and his possession of them, to be held in lieu of interest, until the note should be paid, on which payment he promises to deliver up said slaves and their issue, if any.
    It appears to me to be unquestionable that this is a mortgage of the slaves named in the deed, but so qualified by the receipt of Thynes (which he cannot question) as to give it the character in some respects of a vivum vadium.
    
    Two questions were made on the argument. What is due to the creditor? Is not the owner of the slaves barred by the statute of limitations from recovering ?
    The mortgage stipulates that interest is to be paid on the note. The receipt of Thynes states that the slaves are to remain in his possession in lieu of interest. There is then a discrepancy between the two instruments. The Court prefers the plain, straightforward dealing for legal interest. In many eases the use of the property left in pledge is worth a great deal more than lawful interest. It is a temptation and a shelter to usury. The Court therefore leans against that construction which would produce those effects; and where the two papers speak a different language, will prefer that which is most in the usual course of business, and most likely to do justice between the parties; and it will consider and treat this case as a mortgage to pay a certain sum of money, with legal interest, and the defendant to account for the hire and labor of the slaves.
    *But, it is said for the defendant, that his possession of these slaves has been so long continued since the note was due, (1st January, 1824,) that he is protected by the statute of limitations. There is a difficulty certainly on this part of the case. For if the instrument be considered merely a common mortgage, mortuum vadium, then the statute of 1712 vests the estate in the mortgagee. But if the receipt of Thynes gives the instrument a qualified character, partaking of the vivum vadium, then the bar from the construction of the statute does not apply. [*176
    The eases are very numerous in which the Court has been obliged to give construction to deeds in order to decide what was the nature of the instrument, from the apparent intention of the parties, although the deeds themselves did not distinctly mark their own character. A pawner of goods, in nature of a vivum vadium, where no time is stipulated for a redemption of them, has his whole life to redeem; and if there be a time fixed to redeem, and that has elapsed, the pawner may still redeem until the thing pledged is sold. In the present case, the holder of the slaves might have sold when the time of payment arrived, (1st January, 1824,) but until the sale the debtor may redeem.
    It is therefore ordered and decreed, that it be referred to the Commissioner, to ascertain how much is due by the estate of Wurtz, to Thynes, on the note, with interest thereon; and that an account be taken of how much should bo allowed for the hire and labor of the two slaves, little Jack and Hester, and that the same shall be deducted from the amount of the said note and interest; and that the balance, if any, be paid by the representatives of Wurtz to Wm. Thynes ; and if not paid, on report made and confirmed, that the said slaves be sold by the Commissioner, at public sale, for cash, and the surplus, if any, be paid to the representatives of Wurtz. Costs to be paid out of the sale of the slaves.
    The defendant appealed on the following grounds :—
    1. That the agreement between the parties was fairly executed on good consideration, and is valid; and it expressly stipulates that there shall be no account for the labor of the negroes.
    2. That if the agreement is not valid, the plaintiff is barred by the statute of limitations.
    3. That the defendant being a mortgagee in possession for more than two years after the time fixed for payment, the right of redemption is barred by the act of 1712.
    
      *Memminger, for the appellant,
    contended that the Chancellor -I had, by his decree, made an agreement for the parties different from that they had entered into. From the time the release was executed, they stood indifferent to each other — their former relation ended : and it was then agreed that the mortgaged negroes should go into defendant’s possession, and their labor be in lieu of interest. If the mortgage and agreement be void, the plaintiff can bring trover, and this Court has no jurisdiction, and in such case the defendant would be protected by the statute of limitations. If they are valid, they constitute either a common or qualified mortgage ; if the former, the plaintff’s right to redeem, after two years’ possession from the time of condition broken, is barred by the Act of 1812 ; 1 Brev. Dig. 70. Mortgagee, after condition broken, may bring trover; Montgomery v. Kerr, 1 Hill, 291. Length of time by analogy to the statute of limitations is a bar ; 2 Atk. 362; 2 Ball & Beatty, 402. Regarding the transaction as a qualified mortgage, the interest must be set off against the labor of the slaves, and there is an end to the account. It cannot be usurious, for with the risks incurred the labor would not be more than an equivalent for common interest. But, if it were usurious, the doctrine of equity is, that the principal and lawful interest shall be paid; Stat. Rep. 408; 1 Yes. jr. 527.
    
      Sunt, contra,
    
    insisted that the defendant is to be regarded as a-trustee in possession, and dealing with his cestui que trust, (a weak man over whom he has great influence) for the trust property. Under such circumstances this Court will not sustain the mortgage and agreement, unless it be shown that the transaction was fair, just and reasonable. This, he argued from the value of the hire of the negroes, it was not; but on the contrary, unconscientious and usurious. If usurious, the act of 1T12 does not apply. But the agreement qualifies the mortgage, and gives the party an unlimited right of redemption.
   Johnson, J.

The question growing out of the grounds of this motion, are :—

1. Whether the plaintiffs’ right to redeem the slaves, Jack and Hester, and for an account of their hire, is not barred by time.

2. Whether the defendant is, in any event, bound to account for their hire during the time he has had them in possession.

*1. The defendant has been in possession of the slaves from 1822 down to the present time, and that provision of the act of L 1112, Pub. Laws, 101-2-3, which limits the bringing of the action of trover to four years after the cause of action arose, and also that which limits the right of the mortgager .of slaves to redeem to two years after condition broken, when the mortgagee is in possession, are both relied on in support of the affirmation of the first proposition, but neither of them will sustain it. It is a familiar rule that the general provisions of the statute of limitations will not operate as a bar, unless the possession of the chattel is against the will, and adverse to the rights of the party claiming. Here the defendant’s possession of the slaves commenced with the e onsent of the plaintiff’s intestate, and by the terms of the agreement endorsed on the mortgage he was to hold subject to the uses, and upon the terms therein expressed : so that the operation of the general provisions of the statute must be resolved, not according to the time when the defendant obtained the possession, but according to legal effect of the mortgage and the agreement thereon endorsed. The time fixed by the mortgage for the payment of the money was the first of January, 1824, and the mortgager not having redeemed within the two years precribed by the act, the right to redeem, if that depended on the legal effect of the mortgage alone, would unquestionably have been barred, and it was so ruled in Montgomery v. Kerr, 1 Hill, 291. But I concur with the Chancellor that the legal effect of the mortgage, in this particular, is counteracted by the agreement endorsed upon it. By this, the defendant acknowledges to have received the slaves mortgaged “in lieu of the interest” on the money owing, and that they were to continue in his possession “ until the said notes be paid, upon which payment I promise and declare that I will deliver to the said Thomas (the plaintiff’s intestate) the said slaves, with the issue and increase, if any there should be, without delay or default.” Without this agreement, defendant would have been bound, according to the legal effect of the mortgage, to have delivered up the slaves to the plaintiffs, or their intestate, on the payment of the money, at any time within two years after condition broken, and the agreement is an idle and useless repetition of the terms of the mortgage, unless it was intended to extend the time of redemption beyond the time limited by the act; and such is the necessary import of the terms used. The slaves were to continue *in possession of the defendant in r^iirq lieu of interest “until the said notes be paid up, on which pay- L ment” he was to redeliver them to the plaintiffs’ intestate, without. reference to the time fixed by either the note or mortgage; and it is impossible to give it any effect, but by construing it into an agreement to permit the intestate to redeem without any limitation as to time : the limitation of two years provided for in the statute cannot therefore operate as a bar.

2. The agreement before referred to, expresses v,£ry clearly the- intention of the parties that the services of.the slaves should be received by the defendant for the interest of the money secured to be paid by the mortgage, and if that contract is valid, there can be no question that defendant is not bound to account for their hire. But a supposed, inequality between the value of the services of the slaves and the amount of interest, is the foundation of an allegation on the part of the plaintiffs that the contract was usurious and void, and therefore they are entitled to an account.

The statute against usury would avail but little, if it could be evaded by the substitution of something else than money for the interest, without regard to its value, and consequently all attempts of that sort have utterly failed. When the thing substituted is confessedly of greater value, or where, although the value is contingent, the probable result so far exceeds the amount of interest as to manifest a corrupt intent to secure a greater rate of interest than is allowed by law, the contract is usurious. Thus, if one lend £100 to have £120, at the year’s end on a casualty ; if the casualty goes to the interest only, and not to the principal, it is usury, for the party is sure of the principal, come what will of the interest; but if the principal and interest are both in jeopardy, it is not then usury — Per Dodridge J. Cro. Jac. 508; 5 Co. 19, as cited in Com. Dig. Usury, A.; (see also Morse v. Wilson, 4 D. & E. 353.) So that if the value of the services of these slaves so far exceeded the amount of interest as to authorize the conclusion that it was a device to avoid the statute against usury, the contract is unquestionably void. The evidence of the value of the hire at the date of the mortgage is not very clear. In his answer, the defendant states that they were then mere children, eight or ten years old, and not worth the interest; and the only evidence on the point noticed in the decree, pointing directly to that period, is, that Jack was then a boy; and although the same witness says, in connection with it, that he hired him at the rate of seven dollars per s„-j month, he ^evidently referred to a subsequent period ; so that the J reasonable inference is, that during all the time intervening between the date of the mortgage and the time of payment, the value of hire did not exceed the amount of interest — not so far, at any rate, as to authorize the inference that there was an usurious intent in substituting their services for the interest. The contract was therefore legal in its inception, and no subsequent adventitious circumstance, superinduced by the neglect of the plaintiff’s intestate to pay the money within the time limited in the mortgage, could render it illegal; and notwithstanding the apparent equity of requiring the defendant to account for the subsequent increased value of the hire, that would be to substitute a new contract between the parties — a power which this Court explicitly disclaims.

So much of the decree of the Circuit Court as directs an account of the hire of the slaves is therefore reversed, and in all other respects it is affirmed.

O’Neale, J., and Harper, J., concurred.  