
    S. L. Fountain vs. Alexander Bryce and others.
    
      Mortgage.
    
    An -unrecorded, informal instrument iield to be a mortgage of slaves, and not a sale with an agreement to repurchase by a given time, and a purchaser without notice, who had not paid the purchase-money, ordered to deliver up the slaves to the mortgagor.
    BEFORE DUNKIN', OH., AT PIOKENS, JUNE, 1860.
    The decree of his Honor, the Circuit Chancellor, is as follows :
    Dunkin, Ch. In January, 1858, there were in the Sheriff’s office of Pickens District two or more executions against the plaintiff, Simpson L. Fountain, amounting to about five hundred and fifty dollars. Two of his negroes, to wit, Leah and her child Earle, were under levy, and were advertised for sale on the sale-day in January, which was the fourth day of the month. On the night before the sale was to take place, the plaintiff and the defendant, Alexander Bryce, stayed at the same house, and came together to the court-house on Monday morning. James E. Hagood, who is the Clerk of the Court, testified, that on that morning he offered to purchase the negroes from the plaintiff for nine hundred dollars, which he declined in consequence of the arrangement he had made with the defendants; witness said he would have thought it a good bargain on his part to have purchased the negroes at that price. L. C. Craig testified, that he would at that time have given for the negroes between eight hundred and a thousand dollars. The defendants, the Bryces, paid off the executions and took an assignment of them. Leah and her child were carried by the defendants, the Bryces, to Walhalla on that evening. An instrument bearing date on tbe same day, January 4, 1858, was executed by tbe parties; this paper was drawn up by the defendant, Alexander Bryce. Tbe defendants’ witness, G. 0. Terry, proved tbe execution of tbe instrument; be said that tbe other witness, Hauenschil, was dead; that be did " not know on what day of tbe week tbe deed was executed; but that tbe negroes bad been carried to tbe court-house and returned, and that tbe deed was read over two or three times to the plaintiff.” A copy of tbe paper is exhibited with each of tbe defendants’ answers; it is as follows:
    " The State oe South Carolina, Pickens District :
    "Know all men by these presents, that we, Gambrell Bryce and Alexander Bryce, of tbe District and State aforesaid, having this day purchased a negro woman named Leah, about thirty-two years of age, and a child named Earle, about two years old, for five hundred and fifty dollars, which we bind ourselves, our heirs, executors and admin-. istrators, to deliver -until tbe said S. L. Fountain shall desire tbe negroes for bis own use, and make tbe arrangements so be is to have them solely for himself, without pawning them for tbe money or selling them for tbe same to any other person but us, and pay tbe sum of five hundred and fifty dollars, with interest on tbe same and necessary expenses about medical aid or waiting on when sick, by tbe 25th day of December, 1858, then and in that case we agree to deliver the aforesaid negroes; in case tbe said S. L. Fountain shall fail in complying with tbe above obligation, then and in that case tbe negroes is to be solely ours. These conditions is expressly agreed on between tbe said parties — that ■ is to say, Gambrell Bryce and Alexander Bryce, Sr., on tbe , one part, and S. L. Fountain on tbe other; if tbe said S.. L. Fountain complies and tbe said Bryces do not, we, ■ Gambrell Bryce and A. Bryce, bind ourselves to pay him, tbe amount of damage that may he adjudged to him by three honest men.
    “J. G. BEYOE. [l.s.]
    “A.BBYCE. [l.s.]
    “S. L. FOUNTAIN, [l. s.]
    
      “ Given under our hands and seals in presence of — this • 4th ’January, 1858—
    “0. 0. Terry,
    “W. Hauénschil,
    
      “ Witnesses.”
    The instrument thus prepared by Alexander Bryce and executed by the parties was deposited, by consent, with D. Biemann, with the understanding, as Alexander Bryce says in his answer, that it was to^ be “ kept by Biemann until after the 25th December, 1858; and if the condition of the above obligation had then been complied with by the complainant, it was to be delivered up to him, and if not, then Biemann was to deliver it to J. Gambrell Bryce and this defendant,” A. Bryce.
    It is not proposed to analyze this paper, or subject it to criticism either in a literary or moral point of view; it is manifestly a mortgage, was so understood by the plaintiff, Fountain, and it was intended by the Bryces that he should so understand it. Whatever might have been their own opinion of the construction of which it was susceptible, it is, in its strongest sense, against the plaintiff, an instrument provided for and described by the Act of Assembly, A. D. 1712, 2 Stat. 587, and in which the plaintiff would not be barred of his right of redemption until two> years’ possession by the defendants, after condition broken. But, disregarding the plain character of the transaction, the Court will assume the correctness of the defendants’ assertions, that on January 4, 1858, the plaintiff sold them absolutely, for five hundred and fifty dollars, two slaves, for whom he had, on that morning, refused nine hundred dollars, but with a condition that the plaintiff might repurchase if, “by the 25th December, 1858, he should pay them the sum of five hundred and fifty dollars, with interest and the necessary expenses of medical attendance and, it may be added, that the plaintiff was not at liberty to raise the money by a mortgage, or sale of the negroes.
    It was abundantly established at the hearing that, on the 15th December, 1858, the plaintiff applied to the defendants, (the Bryces,) and tendered to them the amount due to them, in gold, having procured the money on the day previous from Colonel William S. Grisham, who had loaned it to the plaintiff (as Colonel Grisham himself testifies) without any mortgage or other lien upon the negroes or other property of the plaintiff. The defendant, Gambrell Bryce, says, in his answer, that he refused the money because the plaintiff “did not make it appear that he had not raised the money by pawning or selling the negroes.” The answer of Alexander Bryce puts the refusal on the ground that the plaintiff “had not raised the money by his own labor,” a new feature which he sought to interpolate into the written agreement, and which, if admitted, would only have stamped tbe transaction with more flagrant marks of fraud and oppression. The defendant further says that, the plaintiff having thus failed to comply with his agreement, the woman Leah and her three children (she having been delivered of twins in June, 1858) “were the property of this defendant and Gambrell Bryce after the 25th December, 1858, free from all lien or incumbrancethat he some time afterwards procured the paper, 4th January, 1858, from Biemann, as Biemann says, on a promise to return it. On 9th September, 1859, the defendant, Gambrell Bryce, with the consent of his co-opeTative defendant, Alexander Bryce, “ sold the slaves, as he says, to Edwin M. Cobb for thirteen hundred dollars, for which sum he now holds the notes of the said Cohb; that he stipulated with Cobb to deliver said slaves at Cobb’s depot for slaves, in Carnesville, Georgia, kept by one Eeynolds, for the sum of five dollars, and that on the day after the sale he did deliver the slaves to Cobb’s agent in Georgia.”
    These proceedings were instituted 4th October, 1859. After the narrative presented, it remains only to declare the judgment of the Court. It is ordered and decreed that, within sixty days after notice of this decree, the defendants, J. Gambrell Bryce, Alexander Bryce, and Edwin M. Cobb, deliver up to the plaintiff the slave Leah, with her three children, Earle, Jane, and Sarah, and any subsequently born issue of the said Leah, and that the defendants, J. Gambrell Bryce and Alexander Bryce, account for the hire of said slaves since 15th December, 1858,- that it be referred to the Commissioner to state an account between the parties, charging the plaintiff with the sums paid by the Bryces on the executions against him, and giving him credit for the negro hire ascertained to be due, and that he report the same, and that the slaves stand pledged in the hands of the plaintiff for the payment of any balance that may thus be found due by him. Finally, it is ordered and decreed that the costs of these proceedings be paid by the defendants, Alexander Bryce, Sr., and J. Gambrell Bryce.
    The defendant, E. M. Cobb, appealed, and now moved this Court to reverse or modify the Circuit decree, on the grounds:
    1. Because there was no proof of any notice on the part of E'. M. Cobb, of the claim of complainant to the said slaves at the time or before his purchase of the said slaves.
    12. If the paper set forth in the decree, and executed by A. Bryce and J. G. Bryce and complainant, was, in effect, a conditional sale by the Bryces to the complainant, then defendant, E. M. Oobb, having purchased the said slaves without notice of complainant’s equity, should not be affected by it.
    3. If the said paper is, however, in effect a mortgage of the said slaves, then it is respectfully submitted that the said paper, not having been recorded, is void against E. M. Oobb, who was a subsequent purchaser without notice. 11 Stat. 256.
    4. Because it is respectfully submitted that the presiding Chancellor erred in decreeing a specific delivery of said slaves, inasmuch as defendant, E. M. Cobb, purchased them without notice, and had removed them from the State before the filing of complainant’s bill.
    5. Because it is respectfully submitted that the Chancellor erred in not settling the equities between all the parties who were before the Court, and ordering the notes of E. M. Cobb, in the possession of A. Bryce and J. Gr. Bryce, for the purchase-money of said slaves, to be delivered up or cancelled.
    The defendants, A. Bryce and J. Grambrell Bryce, also appealed, and now moved this Court to reverse or modify the decree of the Chancellor, on the grounds:
    1. Because it is respectfully submitted that the presiding Chancellor wholly misconceived the testimony of James E. Hagood, said witness testifying that he made no offer for the slaves Leah and child Earle, to the complainant, but that he would have given nine hundred dollars for said slaves, if complainant had not made the arrangement with the defendants Bryces, and this not communicated to the complainant.
    2. Because the Chancellor erred in not giving full weight to the answers of defendants, A. Bryce, and J. Gr.. Bryce, inasmuch as the complainant called for a discovery by them as to whether the paper filed as Exhibit A contained the contract between said parties, and all statements made by thenq explanatory of said contract, in response to the bill, and not controverted, became evidence in the canse. Chambers vs. Size, 2 Dev. & B. Eq. 305; Chapman vs. Turner, 1 Call Ya. B. 244.
    3. Because it is respectfully submitted that the instrument of writing set forth in the Chancellor’s decree was a conditional sale by the defendants, A. Bryce and J. G. Bryce, to Fountain, the title of the said slaves Leah and child Earle having been vested in the said A. Bryce and J. G. Bryce on the 4th day of January, 1858, previous to the execution and delivery of said paper.
    4. Because it is respectfully submitted that the Chancellor erred in decreeing a specific delivery of said slaves, as the writing between the parties, if violated by the defendants, A. Bryce and J. G. Bryce, prescribed the mode and character of redress on the part of complainant, which was to be in damages, and not by specific delivery.
    5. Because it is respectfully submitted that the decree, if not wholly erroneous, should be modified, so far as to extend the reference ordered to an account of any expenses incurred by the defendants, A. Bryce and J. G. Bryce, as provided for in said written agreement.
    
      Harrison, for defendant,
    Cobb.
    
      Orr, for defendants,
    A. Bryce and J. G. Bryce.
    
      Norton, contra.
   Curia, per

O’Neall, C. J.

In this case, we concur in Chancellor Dunldn’s decree.

"We think that he overlooked the necessity of making a decree between the defendants. The defendant, Cobb, on surrendering the slaves to the complainant, is entitled to his note held by his co-defendants. It is therefore ordered and decreed, that on his delivering the slaves mentioned in the decree to the complainant, the defendants, Alexander Bryce and J. Gambrell Price, do deliver to him his note for the price.

Johnstone, J., and Wardlaw, J., concurred.

Decree modified.  