
    
      M. L. Bryan and J. C. Richardson v. U. M. Robert.
    
    Where, on the sale of a slave, the purchaser gave his bond with two sureties for the price, and a mortgage of the slave, and then sold the slave to another, who, before the execution of his bill of sale, sold to a third party, who took the bill of sale from the first purchaser, and who again sold to another, and then he to a fifth party, who removed the slave, and the sureties of the mortgage bond afterwards paid the debt to the first vendor, and took an assignment of the mortgage, the first purchaser having become insolvent, the Court held that this was not a case in which their bill would lie for the specific deli very of the slave, nor for the foreclosure of the mortgage, but ordered that the third purchaser, who had sold the slave with notice of the mortgage, and against whom the bill was filed, should pay to the complainants the sum for which he had sold the slave, with interest thereon from the date of the sale.
    A bill may be sustained for the specific delivery of slaves where the owner has had possession of them and has been deprived of that possession by another, or where the party contracts for the purchase of specific slaves, or where one is entitled to slaves by the gift or limitation of a friend, relative or ancestor; for in such cases the general presumption is, that there may be some attachment to, or some particular qualities in, the slaves themselves, or some other sufficient reason which would render them of more value to the owner tiran could be compensated by their price estimated at a mere market value.
    In this Court the mortgagee of slaves, though having the legal title, is not considered in any manner as the owner of the slaves — he is regarded as having taken a pledge or security for his debt, with no view to the possession of the property itself — his object is merely the recovery of his money.
    Bills are entertained in equity for the foreclosure of mortgages of personal property, on the ground that the property may be sold under the direction of the C ourt; that if it fall short of satisfying the debt, the mortgagee may have a decree for the residue, or if there should be a surplus, that it may be awarded to the mortgagor, and so put an end to litigation.
    The sale, by one in possession of a chattel, is of itself a conversion, as against the true owner, without any demand on his part; and although this Court does not entertain an action of trover, it may award the value of property which has been destroyed or removed.
    
      Before Johnston, Ch. at Barnwell, February, 1846.
    The Chancellor states all the necessary facts in the following Circuit decree.
    Johnston, Ch. This cause comes up now to be heard upon the proofs and the pleadings as amended by the order of the Court of Appeals, made at Columbia, Nov. extra term, 1845.
    I have listened with attention and candor to the admirable argument of the defendant’s counsel, Mr. Aldrich; but nothing which his learning, acumen and diligence have brought to my view, has changed the impression I had of the case when I heard it in the Appellate Court. The proofs, though somewhat varied, leave the case substantially what it was before; and the law, as indicated by the Appeal decree, though critically examined by the counsel, appears to me to be free from just objection.
    It may be useful to make a brief statement of the circumstances of the case as they appeared at this second hearing.
    Benjamin Coleman, the administrator of one Robert Minors, made sale of the personal estate of his intestate, on the 21st. of February, 1842 ; at which sale, James M. Loper became the purchaser of a slave named Stephen, at the price of six hundred and twenty-five dollars. By the terms of the sale, the 'purchaser was to pay the price at the expiration of twelve months, and to secure the payment by bond or note, with personal security and a mortgage of the property. The property in this instance, though not formally delivered by the vendor, was taken possession of by the purchaser the evening of the sale, and the terms were complied with a few days afwards, by his giving Coleman, the vendor, his bond, with the plaintiff, James C. Richardson, and Joseph C. Bryan, the intestate of the plaintiff, Martin L. Bryan, as sureties, together with a mortgage of the slave Stephen. It may be noticed here, that the time for the maturity of the bond was accidentally left blank at the execution of the instrument.
    Loper, the purchaser, was at the time indebted to one J. M. Myers, a hog-driver from the western country; who being present at the sale, and understanding from Loper that he was going to bid for Stephen, told him that if the negro did not go at too high a price, he would take him off his hands. But Loper testifies that he intended to purchase at any rate ; and bought for himself and not for Myers. After he bid him off, Myers at first refused to take him at the price; but eventually Loper sold and delivered him íhe negro that evening, at the price at which he had himself bought him.
    There was no privily, whatever, between Myers and Coleman, the vendor. Loper gave Coleman his bond and mortgage, as I have stated, a day or two after the sale. Coleman appears not to have known of the transfer of the slave ; although Myers, the day after the auction', asked him how he would like it if he, Myers, should take the negro with him to Kentucky; and apon his replying that he did not know, said he thought it likely that he and Robert (the defendant) would trade, and. that he would leave him with him. Robert lived in the neighborhood; and it appears that the negro, Stephen, had a wife on his plantation, and was unwilling to go with Myers. Myers exchanged Stephen with Robert for two negroes, Liverpool and Phoebe ; of whom he sold the former to one Janold for $400, and the latter to one Ashley, for $200.
    This exchange was made shortly after Myers bought Stephen. Robert says, in his answer, that after the exchange was made and the property delivered Myers informed him he had bought Stephen from Loper, and requested him to take a bill of sale from Loper, to which he assented; and accordingly Loper conveyed the negro to him by bill of sale, dated the 26th day of February, 1842; which was the date of the exchange. Myers immediately returned to the western country. ,
    Robert asserts in his answer, that when he made this exchange, and when he took this conveyance, he was entirely ignorant how Loper became the owner of Stephen, as well as of any incumbrance upon him. And there is no direct proof of notice of either of these facts ; though it is proved, as I have stated, that Stephen had a wife on his plantation ; and Coleman says in his testimony that Robert must have known that Stephen was part of the estate of his intestate, Minors, who had partly brought him up.
    At the time of these transactions Loper was generally regarded as a man in excellent circumstances. But shortly afterwards it began to be suspected that he was really embarrassed.
    Coleman says that fifteen or twenty dajrs after his sale to Loper, Robert, who, it will be remembered, had in the meantime purchased and taken Loper’s conveyance, came to him and asked if he would not be willing to give up his mortgage on Stephen, and take a mortgage from Loper of two of his negroes in lieu of it. Coleman agreed to go with him to see Loper about it. But Robert never came, and the matter was dropped. Coleman says that he had never informed Robert of the mortgage: so that it is left to conjecture how Robert had learned the fact. At all events, this testimony is in direct contradiction of Robert’s answer, which asserts that he never, while he was in possession of the negro, knew to what person he had been mortgaged, although he heard an indefinite rumor that there was some mortgage on him.
    Coleman also testifies that, in the latter part of the summer or first of the fall of 1842, Robert came again to him, and asked him what he intended to do with his mortgage, and was informed by him that the mortgage debt was not yet due ; but that when it came to maturity he should certainly be under the necessity to collect it.
    Loper’s creditors began to press him, and it became evident that he must fail; and, in fact, on the 7th of November, 1842, his property was brought to sale under executions to the amount of $8,731 77, and on the 5th of the following month, to the further amount of $ 1800, which rendered him entirely insolvent.
    Meantime, Robert, aware of his danger, and with a view, as he says in his answer, “to disconnect himself from the property,” (but not with a view “to defeat the lien of the mortgage,” which he positively denies,) sold the negro, Stephen, in the latter part of September, 1842, at the reduced price of $400, to one John B. Powell, who was in the habit of buying and selling negroes, who took hm forthwith to Charleston, and sold him to Wm. Prothro, of Orangeburgh. Robert gave no notice of the mortgage to Powell. Powell, upon offering him for sale, discovered a depression on one side of his thorax, on account of which he was obliged to take $325 for him. But this was not the occasion of Robert’s having reduced the price when he sold him; for the deformity was not then discovered, and he was sold as sound.
    The fact that the negro was sold to Powell, and that he came to the possession of Prothro, was studiously concealed, up to the moment of the trial — the defendant evidently evading the statement of the facts, as they existed, and leaving the plaintiff in the dark as to where the negro, who had been carried off, was to be found.
    Out of these multifarious circumstances I shall select a few, upon which, as I conceive, the case may be determined.
    In the first place, I suppose, we may dismiss Myers, altogether, from the case. It is evident that he purchased with notice of the térms of the sale, and would be bound by all the conditions to which Loper was liable. The delivery of the slave to Loper, even if there was a formal delivery, was conditional, and subject to the execution of the mortgage.— So that if, in fact, the legal title had been transferred by Lo-per to Myers, still Myers would have held it subject to the mortgage stipulated for.
    But, as I have said, it is unnecessary to notice Myers in the case. Robert agreed to take, and did take, Loper’s title j which was subject, of course, to his mortgage previously executed. And Robert is to be considered merely as the assignee of the mortgagor. By the mortgage the title was vested in Coleman, the vendor; therefore, what Loper conveyed to Robert was nothing more than the equity of redemption. It matters not, therefore, whether he took this conveyance with or without notice of the mortgage; (though I think there is proof enough of notice,) since, in any case, according to Donald vs. McCord, Rice Eq. 330, the legal title will prevail over the mere equity of innocent purchasers. Indeed I think it might be doubted whether a specific lien, though a mere equity, would not prevail over a posterior equity, though a general lien would not. Equity enforces liens. But it is unnecessary to take such a ground, for here the legal title of the mortgagee is brought into conflict with the assignee of the mortgagor; and, in such a case, without doubt, according to the principle of the case I have mentioned, the former shall prevail.
    Then if Robert were still in possession of the slave, and this were a bill to foreclose the mortgage, I should have no hesitation in sustaining it. The appeal decree has decided that the assertion of his title by the mortgagor, by an action of trover or detinue, would not reach the exigencies of the case, nor aiford complete relief; because it would leave the equity of redemption to be still adjusted by an appeal to this Court. This is, therefore, one of the cases in which the mortgagee would be entitled to- come against the assignee of the mortgagor, if he was still in possession, for a specific delivery of the slave to answer to the mortgage debt, and that the accounts between the parties might be definitively settled.
    But the assignee is not in possession, and upon .this fact alone the defence is now principally rested.
    If the assignee is not in possession of the slave, whose fault is it'? He had in his possession, that which was pledged for the payment of the debt; and even- if he had no notice of the mortgage when he received this property, the-proof is too clear to admit of doubt, that he had that notice before he parted from it. His only object, as he states, in disposing of this slave, was “ to disconnect himself from the property.” Now, I have no doubt that the assignee of mortgaged property is not, as a general rule, liable, personally, for the mortgage debt. It is no debt of his. 'The only liability is on the specific property encumbered, and which he happens to have received. But he is liable for that property. To be sure, if he passes it away in good faith, and is ready to be called on to guide the creditor to it, so that he may have-a remedy, this is very well. He may point out the property and compel the creditor to look to it in the hands of his sub-assignee. But how, if in “ disconnecting himself with the property,” he defeats the lien? Would it do to say, that if the assignee of mortgaged property should put it out of the jurisdiction, or beyond reach, he is not liable for the debt to the value of the property ? That because he is not the debtor, and the property alone is liable, therefore, if he can place the property out of reach, he is entirely clear -of all responsibility ? Certainly not. He may disconnect himself from the property if he pleases, provided always, that in so doing, he does no injury to the creditor. And where is the difference between the ease I have supposed, of the assignee removing the property, but still retaining his right to it, and the case which has -occurred here of selling it, and sedulously concealing all the facts by which the creditor might be enabled to trace it, and obtain his remedy out of it ? Certainly there is none in principle. .And I hold that the tardy disclosure made at the trial came too late.
    I should have stated that the sureties to the mortgage bond paid the debt to Coleman and took an assignment the 14th February, 1844; and -this is their bill seeking relief against Robert *
    It is said that the wrong, if any, committed by the defendant, was committed against Coleman, the mortgagee; and not against these plaintiffs, who had, at the time, no title to the property, but only an equity to have the mortgage assigned upon paying the money; that the omission to fill the blanks in the bond with a specific day for its maturity, made it presently due, and that Coleman might have enforced it when, and even before, Robert parted from the property; and that, therefore, the wrong committed in removing the property, was a wrong done to his legal title in it; but that no wrong, legal or equitable, was committed against the plaintiffs ; no wrong to their legal title, because as yet, no title was assigned to them; nor to their equities, because they had not as yet paid the money, nor entitled themselves to an assignment. But I appprehend that this is too narrow a view of the case, and is rather subtle than solid.
    The bond was not due in September, 1842, when Robert contrived the negro out of the way, nor until the following February. No doubt, when no time is specified for the payment of money, it is presently due at law. But when a time is stipulated, but accidentally omitted in reducing the contract to writing, if the holder of the instrument should take advantage of the mistake and proceed at law before the stipulated time, he would be arrested by this court.
    The wrong committed was not against the legal title of Coleman, for in fact his title under the mortgage was as good after Robert’s conveyance as before. Robert had no title, and could convey none.
    The wrong consisted in defeating the remedy which the mortgage afforded, and was not confined to him who then held it, but extended to every one who had an interest in it. The plaintiffs had an inchoate right in the paper and all the remedies which it afforded or might afford, which right was consummated on the payment of the money.
    Bésides, we might, if necessary, regard this suit as if brought by Coleman in person, or that he is represented here by the plaintiffs, his assignees.
    It is decreed that the defendant is liable to the plaintiffs to the extent of the value of the slave Stephen, at the time of his alienation of him, with interest thereon. And it is referred to the commissioner to ascertain the sum due the plaintiffs in virtue of said mortgage, with the value of said slave and interest as aforesaid. The defendant to pay the costs.
    
      Grounds of Appeal.
    
    The defendant appealed from the above decree, on the following grounds.
    
      1. Because there was no proof that the defendant had notice of the mortgage previous to his purchase of the slave.
    2. Because there was no sufficient proof that the defendant had notice of the mortgage, previous to his sale of the slave.
    3. Because, at the time the defendant sold thé slave, the complainants had no title to him, hut only an equity to have the mortgage of him assigned to them upon their paying the money due for him. And, therefore, the defendant, in selling him, committed no wrong, legal or equitable, against the complainants; no wrong to their legal title, because, as yet, no title was assigned to them; nor to their equities, because they had not, as yet, paid the money, nor entitled themselves to the assignment. And because his equity was equal to theirs.
    4. Because the mortgagee and complainants were both guilty of gross laches in not moving in the matter until fifteen months or more after the defendant had parted with the slave, and long after the bond had become due.
    5. Because, as to the defendant, the assignment of the mortgage operated nothing more than an assignment of a hare right to file a bill in equity for a fraud committed upon the assignor; of a mere right of action for a tort; such a right is not a proper subject of assignment, and will not be upheld either in law or equity.
    6. Because the mortgage is not recorded, and is, therefore, void against the defendant, he being an innocent purchaser without notice.
    7. Because Loper sold the slave to Myers before he executed a mortgage of him to Coleman — therefore when the defendant purchased from Myers, he purchased an unincumbered title, and that without notice that a mortgage was to he given.
    8. Because the complainants (if entitled to any remedy) have a plain and adequate remedy at law.
    9. Because Coleman’s testimony should not have been admitted, and he should have been made a party complainant.
    10. Because the decree is contrary to the evidence and to equity.
    James T. Aldrich, for the motion.
    Bellinger & Hutson, contra.
    
   Harper, Ch.

delivered the opinion of the Court.

I think there is a misconception in supposing this a case in which a hill will lie for the specific delivery of a slave. The general principle on which such a hill may be sustained, as determined by the cases of Sartor vs. Gordon, Trapier vs. Glover and Young vs. Burton, rests on these grounds: that when an owner has had possession of a slave, and has been deprived of it by the act of another, the general presumption is, that there may be some qualities in the slave which would render hint of more value to the owner than could be compensated by the price of such a slave, estimated at his mere market value. So. where a party contracts for the purchase of specific slaves, it is presumed that he may have made his contract with a view to some particular qualities in the slaves themselves, for which ordinary damages would not be a sufficient compensation. Or, as in Trapier vs. Glover, when one is entitled to slaves, by the gift or limitation of a friend, relation, or ancestor, there is very sufficient reason why he should have the slaves themselves, instead of any damages for their estimated value. A general expression is used in one of the cases, that where a party states a defendant to be in possession of his slave, he states a case entitling him, prima facie, to the interferance of this Court. And so it is, but it must be taken with the qualifications which I have suggested, from the context of the cases. An exception is made in the cases, when it appears that, without any view to peculiar qualities, there is a contract for slaves, to be sold again, as merchandize.

The same reason applies, and more strongly, in the case of a mortgagee of slaves. He is not supposed to know any thing of the peculiar qualities of the slaves, except that he might form an estimate of the market value of such slaves, and certainly not to have the same attachment, or knowledge of their character and qualifications, as the owner, who has been in possession of them, and has been deprived of it.— In this Court, the mortgagee, though having the legal title, is not considered, in any manner, as the owner of the slaves; as, in a Court of Equity in England, the mortgagee of land is not considered the owner. He is regarded as having taken a pledge or security for his debt, with-no view to the possession of the property itself. His object is merely the recovery of his money.

Nor do I think this can be regarded as a bill for the foreclosure of a mortgage. Certainly bills are entertained for the foreclosure of mortgages of personal property — somewhat unnecessarily, it might seem, as the mortgagee might seize the •property and sell it, to satisfy his debt. But the ground on which Equity entertains such a bill is, that the property may be sold under the direction of the court — that if it falls short of satisfying the debt, the mortgagee may have a decree for the residue, or, if there should be a surplus, that it may be ■awarded to the mortgagor, and so put an end to litigation.— If the mortgagee should sell, himself, there would be, in case of deficiency, an action at law to recover the remainder of the debt; or, if there should be a surplus, the mortgagor -might, sue for it. Equity makes an end of these matters. But it tvas never supposed that the Court could be called upon to act the part of a bailiff, to put the property in the mortgagee’s possession, that he might sell it by his own act — still leaving the mutual rights of action, to which I have adverted. If this were a bill for a foreclosure of a mortgage, Loper would be a necessary party to it, as being the original debtor, liable in the first instance, against whom the complainants would be bound to exhaust their remedy, before proceeding against the property in the possession of his vendee. But the allegation of the bill is, that the negro has been- sold and carried out of the State; though, from subsequent evidence, it seems that this may not have been the case. A specific delivery, then, according to the shewing of the bill, would have been impracticable, whether for the purpose of making the sale to satisfy the mortgage debt, or otherwise. Then it is plain, that the only remedy was by an action of trover at law.— The sale, by one in possession of a chattel, is, of itself, a conversion, as against the true owner, without any demand on his part. This Court does not entertain an action of trover, though it may aAvard the value of property which has been destroyed or removed.

There is one ground, however, on which the complainants may, to a certain extent, be relieved; though the ground can hardly be said to be taken in the pleadings, unless under the prayer for general relief, nor even in the argument. I feel that there is some irregularity in the Court’s taking notice of a ground which has not been made or urged, yet it is within its competency to do so, and the Court is always unwilling to expose parties to protracted litigation, or see them defeated of a fair demand. If we should dismiss the bill,- the complainants’ action of trover would be barred by the Statute of Limitations. But there is a principle of Equity, that if a stranger, in possession of my property, undertakes to sell it, and delivers it accordingly, it is at my option either to pursue the property in the hands of the holder, or to affirm the sale, as the act of a voluntary agent, and recover the proceeds in his hands. This might be, where the sale was made in good faith, the vendor believing himself to be the owner. But in this case there is no doubt that the defendant had notice of the complainants’ claim, if not before, yet a feAv days after his purchase. He sold, as he expresses in his answer, “to disconnect himself with the property.” This seems to have been under a notion, that by selling the slave he might rid himself of responsibility to the complainants. But this would not be so at law, 1101, on the principle I have stated, is it so in Equity.

It is ordered and decreed that the defendant, U. M. Robert, pay to the complainants the sum of four hundred dollars, with interest from the time of the sale to Powell, in September, 1842, as for money received to their use.

Johnston, Ch. and Caldwell, Ch. concurred.

Decree confirmed, in the result.  