
    BULLARD VS. PHILLIPS ET ALS.
    Western Dist.
    October, 1831.
    appeal from the court of the sixth district, the judge of the FIFTH PRESIDING.
    The assignee of an act of sale in the nature of a vente a remiré can institute a possessory action against the vendor and recover possession of the property sold, and hold it subject to the conditions of the vente a rimiri, as made to the original purchaser.
    The plaintiff sues for the recovery of six slaves, in the possession of the defendants, which he alleges he purchased and had transferred to him, by Peter B. Martin, by his deed pf assignment and conveyance, dated 11th December, 1826; he states that the defendants have wrongfully taken possession of an¿ prayg judgment to have them delivered up, and fcst sequestered to prevent removal, &c.
    The defendants plead the general issue; and aver that the conveyance of the slaves in question, was made by Isabella and Abraham Phillips, in the nature of a mortgage, to secure the sum of two hundred and fifty seven dollars, .to Peter B. Martin, who transferred it to the plaintiff. That the mortgage is extinguished by the payment of the debt; and that the defendants have a counter letter executed by Martin to the mortgagers, which the plaintiff knew of before he received the transfer from Martin. Martin gave a counter letter, stating the consideration money of his deed or mortgage to be two hundred and fifty-seven dollars. The defendant set up further title to the slaves in virtue of a partition of the estate of Isaac and Isabella Phillips, of whom they claim as heirs. A notarial act of partition passed before a notary and attested by a certificate of the governor of Alabama, was offered in evidence and objected to, because it was not authenticated according to the law of Congress.
    The plaintiff had judgment and the negroes restored, but subject to the equity that may arise under the counter letter from Martin to Isabella and Abram Phillips.
    The defendants appealed.
    The conveyance from Phillips to Martin expressed on its face to be in consideration of two thousand dollars. The counter letter stated, it was only two hundred and fifty-seven dollars, and six months allowed to redeem them in.
    
      Bullard, for the plaintiff, in propria persona.
    
    1. The plaintiff is entitled to the possession of the slaves! in dispute, until the representatives of Abraham Phillips,! redeem them according to the counter letter. j
    2. The slaves were charged to one of the heirs, under whom j the plaintiff holds, in the partition spoken of in the above! case of Phillips against Thomas, and the plaintiffs showing! no title, that judgment precludes them. I
    
      
      Boyce, for the defendants.
    1. We claim to hold this property as heirs of Isaac Phillips, and are entitled to retain the same, as a part of what belongs to them in his succession.
    
      2. The sale made by the co-heirs of the defendant, to Martin, together with the counter letter between them, shows this to have been a mortgage, to secure payment of a small sum of money. •
    3. When Martin transferred his claim to the plaintiff, the latter paid the debt out of property belonging to the Phillips’s in his .hands, consequently the debt was extinguished, and the mortgage along with it.
    4. This was never intended as a sale by the parties, so that no provision of law relating to that kind of contract, can have any just application to this transaction, intended by them to be a mortgage.
   Mathews, J.

delivered the opinion of the court.

' This is a possessory action, brought to recover certain slaves alleged to beheld by the ’ defendants without right.' The’ plaintiff obtained a verdict and judgment in his favor, in the court below, from which the defendants appealed.

The evidence of the case shows, that the slaves in question, had been sold and delivered to one Peter B. Martin, by a vente (i réméré to secure the payment of a debt due to him by the vendors; and that this debt was paid by the plaintiff, on being placed in relation to said slaves, in the same situation in which the creditor and original purchaser held them, by a regular transfer of all the rights of said purchaser.

On these facts we are of opinion that the plaintiff has a ight to recover possession of the slaves by him claimed, and to hold them according to the conditions of the vente h réméré, made to P. B. Martin, as contained in the counter letter [which was produced in evidence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed,.with costs.  