
    In the case of George Trescott, Assignee, v. John Smyth, et al.
    The mortga-ai^i°opPeity°is the legal property can-trained on" for rentmthe mortgagor,
    This was a rule on the Master, taken out by consent of parties, to shew cause why he should not pay six rent due by the defendant, J. Smyth, to Mrs Christie, Executrix of Alexander Christie, on the 16th of February 1826, and for which rent she distrained on the 1st of April 1826 on a negro named Molly. It was agreed that the Master should sell the wench and hold the proceeds of the sale to abide the order of the Court. In the decree in the case of Trescott v. Smyth, the property of Smyth was ordered to be sold to pay his debts. Mrs Christie claimed a preference of payment on the grounds, that the order of sale by this Court could not divest her of the right of distress for rent due by Mr Smyth, — the negro being on the premises leased, and two quarters’ rent due on the 16 th of February 1826 ; and on the further ground, that even the sheriff levying an execution is compelled by law to pay the landlord one year’s rent, if so much be due, in preference to the debt of the execution creditor. 1 Const. Rep. Tread. 120. It was submitted, that the Master on selling this wench was compelled to do what the sheriff would have been obliged to do if he sold her under an execution.
    On behalf of the Master, the parties claiming the benefit of the decree replied, that this negro was under mortgage ; that the mortgage was forfeited; that the legal estate in the slave was in the mortgagee; that it was therefore the slave of a third person on the premises of the tenant within the act of 1799. 1 Brev. 242. 2 Faust, 251. It was also insisted, that the decree of this Court in January, against the specific property including the negro in question, prevented any lien from attaching on the property. It was also insisted that the distress of Christie had no equity, because she had a lien on other property on the premises, viz. furniture, which was exclusively bound by the lien for rent, and which was not- bound either by the mortgage or decree. And that the well known equity rule applied, viz. that if one creditor has a lien on two funds and another only on one, the former creditor must first exhaust the fund on which the other had no lien before he could resort to the other fund.
    De Saussure, Chancellor.
    I am of opinion that the slave in question was not liable for the rent, and the rule must be dismissed.
    From this decree an appeal was taken up on the grounds following.
    
      First. That the slave distrained on was the bona fide property of Mr Smyth, and not of the person to whom she was mortgaged, — the mortgagee having no other interest in property mortgaged than the right of having it goj¿ anc[ j}le proceeds applied to his debt, subject to other incumbrances; and that the slave was not sold by the Master until after the second quarter’s rent was due; and the property of Mr Smyth in her divested by the levy under the distress warrant.
    
      1826.
    
      Charleston.
    
    May 1826.
    
      4 April 1826.
    
      Second. That the decree of January 1826, and the sale under it and the mortgage, could have no stronger efficacy against a landlord than an execution at law in the hands of the sheriff, who would be obliged to pay a year’s rent, if so much be due, in preference to the execution, under the statute of Anne.
    
    
      Third. That a rule for marshalling securities referred to by the Chancellor had no application in this case, the furniture being equally liable with other property of defendant to the claims of his creditors, and not as was alleged exclusively bound by the lien for rent. Nor was Mrs Christie bound by any principle of law to take it, rather than any other personal estate of the defendant.
    
      Fourth. That the decretal order should have at least awarded to Mrs Christie the quarter’s rent due prior to the decree of January 1826 (viz. on the 16th of November 1825) and an apportionment of the second quarter’s rent up to the time of the decree.
    
      Lance, for the appellants,
    cited 1 Brev. 170. 187. Smith v. Lascelles, 2 Term Rep. 187. Can an equitable interest be restrained Com. 529. 1 Madd. Cha. 529. 2 Caines’ Ca. in Er. 210. 2 Johns. Cha. Rep. 100. 140. Bankruptcy does not prevent a distress.
    
      Clarke, contra.
    A negro is the property of the mortgagee, after the debt becomes due. 8 Johns. Rep. 97. 5 Johns. Rep. 258. 2 Ves. Jun. 378. Pow. on Mort. 3.
   Cueia, per

Colcocic, J.

The Court unanimously concur with the presiding Chancellor, that the negro was not liable to the distress for rent. The case is certainly within the spirit if not the letter of the act of 1799, which was intended to restrain the rigour of the common law on this subject. The act declares that no slave shall be liable to be distrained or shall at any time be distrained for house rent or any other rent, unless such slave shall bona fide belong to such person or persons as may be lawfully liable to or chargeable with the rent. 1 Brev. 242. Now it cannot be said that this negro was bona fide the property of Mr Smyth; she was mortgaged to Mr Grimke. The time of payment had been passed for years. The only interest then which Mr Smyth could have in her was an equitable interest, which' .certainly was not a subject of distress. It would seem to me a work of supererogation to refer to many authorities on this point, when there are two or three of our own in which it is expressly decided that a mortgagee after the day of payment is considered as the owner of the property. In the case of Wolfe v. O'Farrell, 1 Const. Rep. Tread. 151, although the paper in that case was a bill of sale by way of mortgage, the general doctrine is expressly recognized by all the Judges. And so in the case of Payne v. Renshaw, 1 Harp. Rep. 275. The motion therefore is refused.

An equitable Jhís'n^écfof distress,

Decree affirmed.  