
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Pledger v. Mandeville, and another.
    When personal property is mortgaged, or pledged, for the payment of a debt by a day certain, the-title of the mortgagee, or pledgee, becomes absolute at law, if the debt is not’paid at the day: nor is his legal title divested, upon tender of the debt within two years, by the 15th section of the limitation act of 1712; which merely limits suits in equity for redemption of property mortgaged, and does not confer any new rights on the mortgagor. Vide P. L. 103.
    Motion for a new trial, on behalf of plaintiff, after verdict for defendants. An action of trespass was brought by the plaintiff, against the defendants, and tried before Brevard, J. in the district court of Marlborough. The declaration alleged, that that the defendants, with force and arms, took and carried away a slave of the plain, tiff; to which the defendants pleaded not guilty, and a justification, that the slave in question, was the proper slave of one of the deffen, dants. On which, issues were taken to the country.
    The slave in question, as it appeared in evidence, was pledged to the defendant, Mandeville, or placed in his hands upon a verbal contract; the terms of which were, that, in consideration of a cer. tain sum ot money advanced by the latter to the former, the slave should be considered as sold and delivered by the former to the latter, upon a condition, or proviso, agreed upon between them, at the same time, that if the said sum of money should be returned, on or before a certain day mentioned, and stipulated, then and in that case, the sale should be considered void, and the slave returned tq the plaintiff. The money was not returned at, or before the day appointed for that purpose, but was tendered sometime afterwards, and within two years after breach of the proviso aforesaid. The motion to this court was founded upon an alleged misconstruction of' the 15th section of the limitation act of 1712, P. L. 103; aná misdirection of the judge to the jury upon the trial.
    
      The counsel for the plaintiff contended, at the trial, that the act in question entitled the plaintiff to redeem the slave mortgaged, or pawned, as aforesaid, at any time within two years after the breach of the condition : and, the defendants’ counsel insisted, that the act ' Cannot be construed to relate to verbal sales with condition, but to such only as are reduced into writing, and must bé confined to bills of sale, by way of mortgage, according to the express words of the act.
    The court, at tho trial, .gave this construction to the act ire question, and directed the jury accordingly, viz: that, by are equitable construction, although the words used are, “bills of sale, &c.”; yet, such an interpretation ought to be given, as will extend tho provisions of the act to all cases coming within the same mischief; and, therefore, that verbal sales, of a like nature, with benefit of redemption, ought to be considered on a fooling with sales of a similar description, reduced to writing. As to the limitation of two years, relied on by the plaintiff’s cou .se!, it was construed to intend a limitation of the equiiy of redemption, and not as intended to afford any benefit to the pawnor, or morigagor, ot redeeming, by payment, or tender, of the money borrowed or stipulated, after breach of the proviso, or condition agreed on. The court was of opinion, that the words, “and shall continue in possession for the space of two years after breach of the proviso, without redemption, — although with right or equity of redemption, — to he vested in the mortgagee absolutely, &c.” plainly signify that the design of the legislature was to limit the prosecution of suits in equity, for the redemption of property so situated, alter breach of the Conditions of such sale ; and, to coi fiim the title of the pawnee, or mortgagee, and save the expense of a suit in equity to foreclose : and, that this design, or intention of the legislature, appears further manifested by the words used in the saving part of the same clause, saving to married women, and ,.ersons beyond sea, their equity of redemption, so as they prosecute the same within three years after breach of the proviso. The same intention might also be iiifeired, from the general scope of the whole act; and, likewise, from the next preceding clause to the clause in question, which declares, that any person in possession of negroes, &c., which have been sold by way of mortgage, with right of red-mptum, under the proviso of such sale, whereby the same negroes became forfeited, and, so, of right, belonged to the. mor gagee, the mortgagor, having neglected the payment of the. money, or other legal t itisfaction, for the red mption thereof, according to the proviso, shall be.debarred, and forever foreclosed from any right or equity of rel emotion.
    
    
      There Were other grounds stated for a new, trial; but, as they a|j proceet¡et-j the huppORed impropriety of the finding of the jiir3' UP;>1' questions of fact,; and as the facts appeared to have been fairly before the jury, and the questions arising thereon, properly Rft to their determination, this court was of opinion, that those - grounds were not supported, and that the veidiet could not be' avoid-a/* upon .riiy of them.
    Upon that ground, which related to the limitation act, the court cí! (¡ó'irr.iirrí'd in opinion, that the get was intended to limit suits in Equity to redeem ’¿iter breach of.condition, i. e. to limit suits tor the redemption of property mortgaged, or pl-dgod, after tho same has become forfeited at law; and that ii stead of an indefinite time for redemption, which the mortgagor before had, in equity, to allow him oidy two jenra, after the property should become absolute in the mortgagee at laviq to. redeem in equity : after, which, tho thing mortgaged should "be irredeemable in equity, and become absoluto in the murtgigee fnre.vnr, without -the trouble and expence of a suit in equity-to foreclose: and tha.t the clause in question could not be eonstiued to give any right to-the mortgagor, after erudition broken, to chi® the property mort<ja».ed, upon the ground that a tender of the consideration money within txro years after,breach of the proviso, will discharge tho qualified-property of the mortgagee, and revest the absolute property in the mortgagor, without the necessity of a suit in equity, for the equity oí redemption.
    But as to the other point made in the construction-of the clauses5 in question, whether it must- iibt -be eo -.fined to cases wherein there has been a bill of sale, the court wer e divided in opinion.
   Ghhhke, Watíiss, and TJ’-ksziíivant,. Justices,

were of opinion, that it ought‘id be cottfi ted to such cases ; a-.tl that the legislature might have good reasons for restraining the benefit of th.e provision rijade by the clause in question, to such cases' only in which the'parlies should he caielul enough' (o' reduce to writing, and .specify particularly, the terms and-conditiinis of their contract: agid that parol contraes undo-- like circumsfauces,'and with similar conditions, might he considered as not entitled to equal favor; especially as it might have a tendency to induce parties to put their contracts iii writing, which is in all cases to be encouraged, as tooie certain, and less Hablo to misconception, -misconstruction, and to objections-on the ground of fraud.

Johnson, J„

agreed with the construction given by the district court. lie thought a verbal contract, of the same kind, was entitled to the same favor as a written one ; that the contract was the same, and only the evidence to prove the contract was different: as botli cases were within the sámé mischief,' a right of redemption in equity without limitation of time, he thought that by au * . équitable and liberal construction', a' contract with a proviso allow. ing a party tó redeem his pledge within a cértain time, although not reduced to writing, arid'iu the form of a' bill of sale, was within, the act, being within the sanie mischief,' and within the spirit and intention of the act; for that a different' construction would give the mortgagor by parol an indefinite time of redemption, which is limited to two years itr.cases where the terms of the mortgage are put in writing

Falconer; for the plaintiff. Wilds, for the defendants.

Present,' Grímice, Waties, Johnson, Tkezevant, and Bke.' yard, Justtces;• Bay, J. absent.

Motion for a new trial discharged.'

Note. The equity of a statute, is a construction made by the judges, that cases out of the letter of a statu'e, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth: and the reason hereof is, for that the law makers could not possibly set down all cases in exnress terms Co Litt. ¿4 b. Twenty years possessionin England, bars an equity of redemption, by presumption'! See 2 Ves. jr.  