
    John H. Watson vs. Edmund V. Dickens.
    Instructions asked in tke court below, and refused, and so marked by the clerk, are to be considered as if excepted to, without a formal bill of exceptions.
    Where there is conflict of testimony, so that the mind cannot repose with ■ entire confidence and certainty upon a conclusion in favor of either party, the verdict of the jury will not be disturbed.
    
      The court below refused to instruct the jury, “ that a purchaser from either the vendor or vendee of property fraudulently conveyed, has a good and valid titleheld, it was properly refused, as any other than a bond fide purchaser without notice, would stand in the same condition with the person of whom he purchased.
    
      In a suit at law, it is not admissible to show by parol a defeasance of a deed, absolute on its face; it is only in equity that such a deed can be shown by parol to be a mortgage.
    The court below refused to instruct the jury, “ that a purchaser of mortgaged property from the. mortgagor obtains a good title, subject to the lien of the mortgagee, and if the mortgage be given as an indemnity to a surety for his suretyship, the lien does not attach until he pays the indebtednessheld, to have been properly refused, as a purchaser from the mortgagor could get no , more than the mortgagor was authorized to convey, and could set up no defence which the mortgagor might not have done, and the lien of the mortgage attaches as soon as it is executed, and overreaches all subsequent conveyances affected with notice.
    Affidavits for a new trial, based on newly discovered testimony, must show that the testimony could not have been obtained on the first trial by the exercise of reasonable diligence.
    On appeal from the circuit court of Panola county; Hon. Hugh R. Miller, judge.
    The plaintiff introduced a bill of sale of certain negroes, and other property, and also a title bond for the land upon which the replevied property was raised, from Glasscock & Smith to Edmund V. Dickens.
    Smith testified that he and Glasscock had purchased from Samuel B. Dickens certain negroes, stock, land, &c., for which they executed four notes of six thousand dollars each; one of which notes they had paid. To secure the payment of the notes, they executed a deed of trust to Samuel B. Dickens on the property purchased. That said Samuel B. Dickens had an attachment issued, and then they agreed that the land mentioned in the title bond, and the slaves in the bill of sale, should be given up, this property being part of that for which said notes with others were given. At the division of the property Samuel B. and Edmund V. Dickens were both present. Samuel B. Dickens seemed to be the prominent actor in the transaction; Edmund V. Dickens had very little to do or say in it. At the previous interview, when the parties settled upon the terms of the compromise, Edmund Y. Dickens was not present. The bill of sale and transfer of title bond was made to Edmund Y. Dickens; the three $6000 notes were delivered to witness by E. V. Dickens, and the slaves and other property were delivered to him, E. Y. Dickens. The purchase money was not paid to the original owner, the holder of the legal title of the land, and therefore it was not worth much to the holder of the title bond. The slaves then delivered up remained upon and cultivated the land then given up, and Samuel B. Dickens was living upon said land during the greater part of the year 1846, and E. Y. Dickens lived some eight miles from said land this year.
    James Estis testified, that E. Y. Dickens employed him as overseer, in presence of Samuel B. Dickens; said slaves were turned over to him as the overseer of E. Y. Dickens; that he was ordered by E. Y. Dickens to make a crop with those negroes on the Smith & Glasscock place, and that he took the negroes to the place, and a few days after Samuel B. Dickens removed to the same place, and lived there a greater part of the year. S. B. Dickens gave him no directions as to the management of the plantation, and he was not in any way under his control. The wife of S. B. Dickens had several negroes, five or six of her own on said place; that two or three of them worked in the crop, the others about the house; that he had eight of the Smith & Glasscock negroes working in the crop; that he worked the crop with these negroes until time for gathering the crop, the early part of September of that year. The negroes were then taken oif, and he left the place, and went to E. Y. Dickens’s house ; that he knows not whose hands gathered the crop; that he (witness) was the overseer of E. Y. Dickens in raising said crop; said negroes raised the crop, a part of which is implicated in this suit. It was understood at the time of the delivery of said negroes to him, as overseer, that S. B. Dickens was to be confined to the house and garden, and have no privileges beyond.
    A. Foster corroborated the testimony of last witness as to the delivery of the slaves to the overseer, Estis, by E. Y. Dickens &c.
    A. Jewell testified, that on a day subsequent to the division of slaves, &c. he went to S. B. Dickens’s house on the Smith & Glasscock place, and that said S. B. Dickens told him every thing belonged to his brother, E. Y. Dickens. He went as an officer to get money out of S. B. Dickens, having an execution in his hands against S. B. Dickens. He also states that he was at the public sale of negroes in Memphis by E. V. Dickens in March, 1848, the negroes referred to in D. C. Williams’s testimony ; that he saw only three of the Smith & Glasscock negroes; that he knew them well.
    Calvin Miller testified, that on the division of the property it was formally delivered to E. V. Dickens. The transfer of the notes by Samuel B. to Edmund Y. was made before the compromise with Smith & Glasscock.
    Caldwell proved the value of said corn, cotton, &c. replevied in this suit, to be about $ 1000, and that it was raised on the Smith & Glasscock place.
    Defendant introduced G. G. Nelson, who proved the execution of a release by defendant Watson to Samuel B. Dickens, of all liabilities that might result from this suit.
    Samuel B. Dickens testified, that he and his wife sold the crop to defendant in September last. “We sold it as it stood in the field. It was gathered by John H. Watson and his hands. The purchase was made in good faith. The land was first bought by me, by W. Y. Gholson, and [sold by me to Smith & Glasscock, who transferred my title bond to E. Y. Dickens. The real title was in Gholson, as I nor any other person ever paid him for it. I was living on the land at the time I made the crop. My wife owned six of the slaves, and she furnished all the corn, fodder, meats, and tools, and a part of the negroes, who made the crop, were those brought back from Smith & Glasscock; all the right which E. V. Dickens had to the land was my bond to Smith & Glasscock, which was transferred to him; I had the title to some of the negroes made to him, and on these grounds he is trying to get the crop. He is my security for some $400; I don’t know that he has paid any of it.”
    Ann Dickens states, “ I furnished corn, &c., for making the crop, and six slaves on the place. Estis was overseer until he swore he was employed by E. Y. Dickens, after that time Mr. Myrock overseed until the crop was sold to Col. Watson; we sold the crop to Watson ; the consideration I don’t recollect; E. V. Dickens was frequently at our house, and I have heard him say that his crop was an indifferent one, but Samuel B. Dickens’s was the best in the county.”
    W. Wilbourne testified, that at the division some thirteen or fourteen negroes fell to Samuel B. Dickens, besides other personal property; all the personal property amounting to $6000 or $7000; no delivery took place at the time because the notes were not present. S. B. Dickens was the prominent actor. E. Y. Dickens was present, but had little to do or say. At one time in the progress of the division, E. Y. Dickens got angry, and said Smith & Glasscock were imposing on his brother, S. B. Dickens; afterwards saw said negroes on the Smith & Glass-cock place; S. B. Dickens lived there, and.seemed to have control and direction; that S. B. Dickens had sent Estis, his overseer, to him on two occasions on business.
    Defendant then introduced Dr. Holcombe, who testified, that in the spring of 1846 he rented some fourteen acres of the Smith & Glasscock 'place of S. B. Dickens, who was in possession of the place; he paid the rent to S. B. Dickens; he was never asked for it or disturbed by E. Y. Dickens; the negroes who got back from Smith & Glasscock were working on the place with some of the slaves of S. B. Dickens’s wife;. Samuel B. exercised acts of overseership over all the slaves; frequently saw him in the cotton field directing, &c.; that he directed Estis, the overseer, and appeared to be controlling matters on the place in 1846; that he heard E. Y. Dickens tell S. B. Dickens, that his (S. B. Dickens’s) crop was much better than his own; that he attended as physician, was sent for by S. B. Dickens, and was paid by him.
    Armstrong testified, that Estis bought goods from him, and had them charged to Samuel B. Dickens, stating to witness that he was living with S. B. Dickens.
    J. J. Caldwell proved, that, as sheriff, he levied attachment and execution against S. B. Dickens, on some of the Smith & Glasscock property. This was in January, 1846; that S. B. Dickens was at that time greatly indebted; that judgments were against him, and executions returned no property found ; S. B. Dickens was at this time living on the Smith & Glasscock place.
    D. C. Williams testified, that he was at Memphis in March, 1848; that there was a public sale of negroes by E. Y. Dickens; that E. Y. Dickens told him he would sell six of the Smith & Glasscock negroes at public sale, and that he had sold six or seven of said negroes at private sale; witness saw six negroes sold. The defendant offered to introduce a record of an unlawful detainer of said land, which was objected to by plaintiff, and the objection sustained by the court.
    This was all the testimony.
    The jury found for Dickens, and Watson sued out this writ of error.
    
      Harrison and Vance and Glenn, for plaintiff in error.
    
      John TV. Watson, for defendant in error.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of replevin in the circuit court of Panola, for a crop of cotton, corn, potatoes, &c. raised on a particular plantation, which is claimed by both parties.

On the trial some evidence which was offered by the defendant was excluded, but no bill of exceptions was filed. Some of the charges asked by the defendant were refused, and so marked by the clerk; they are to be considered as if excepted to. There was also an exception to the refusal of the court to grant a new trial.

The crop was raised upon a plantation originally sold by S. B. Dickens to Smith & Glasscock, and by them transferred with the privity and assent of said Dickens to Edmund Y. Dickens. It was cultivated in part by slaves included in the same transaction, and to which E. Y. Dickens derived title in the same way. The slaves had also belonged to Samuel B. Dickens at one time. Some negroes belonging to the wife of S. B. Dickens assisted in the cultivation of the crop. Watson purchased the crop from S. B. Dickens about the 1st of September, and gathered it with his own slaves. It is insisted that the conveyance to E. Y. Dickens, under which he claims, was fraudulent and void; also that it was'but a mortgage in effect, in consequence of a parol agreement with S. B. Dickens, and that he has no right to recover.

The jury found for the plaintiff. There was a good deal of conflict in the testimony, so much indeed that the mind could not perhaps repose with entire confidence and certainty upon a conclusion in favor of either party. But these matters were all before the jury, and it was their peculiar province to decide upon them. They had the witnesses before them, were probably acquainted with them, and knew what degree of credit to attach to their testimony. We do not feel authorized therefore to disturb their verdict, merely upon the consideration of the testimony.

This brings us to the review of the charges, which were refused.

The first is, “ that a purchaser from either the vendor or ven-dee of property fraudulently conveyed, has a good and valid title.” This proposition is too broad and unlimited. Any other than a bona, fide purchaser without notice, would stand in the same condition with the person of whom he purchased. The other two instructions are almost identical. They state the proposition, “ that a purchaser of mortgaged property from the mortgagor obtains a good title, subject to the lien of the mortgagee ; and if the mortgage be given as an indemnity to a surety for his suretyship, the lien does not attach until he pays the indebtedness.”

This charge was properly refused. • In the first place, it may be. remarked, that as this was a suit at law, no parol evidence ought to have been admitted to show a defeasance. It is only in equity that such evidence is admissible to show that an instrument, absolute on its face, is in reality a mortgage. At least this is the English rule, and that of a majority of the states in this Union, in opposition to the decisions in New York. Peques v. Mosby, 7 S. & M. 340; 3 Phil. Ev., Cow. & Hill’s notes, 1432; 1 Pow. on Mortgages, 121a. We ought not to reverse upon evidence, which we should say ought not to be admitted on the next trial.

In the next place, the proposition is much too broad. Certainly after the condition forfeited, the absolute ownership is vested in the mortgagee. A subsequent purchaser from the mortgagor would get nothing but an equity of redemption. At law, by the form of the conveyance, the mortgagee obtains at once the legal estate,, but in equity the mortgagor is considered the real owner until a decree of foreclosure. 4 Kent, 159. A purchaser with notice could get no more than the mortgagor was authorized to convey, and could set up no defence which the mortgagor might not have done. It is clear, then, that the lien of the mortgage attaches as soon ás it is executed, and overreaches all subsequent conveyances affected with notice.

In a case which grew out of the same transactions, decided at this term, we affirmed a judgment against E. V. Dickens, — Dickens v. Stancil. But there Stancil was a purchaser at two or three removes, from S. B. Dickens, and it was not shown that he had any notice of the right of E. V. Dickens. Here Watson purchased from S. B. Dickens himself, and. the jury might have found him affected by notice.

The affidavits on which the motion for a new trial were in fact founded, were .not sufficient for the purpose, because they do not show that the testimony might not have been obtained, before the first trial, by the exercise of reasonable diligence.

Judgment affirmed.  