
    
      Beverley Burton vs. Geo. W. Pressly, Admr. of S. Pressly, and Wm. H. Moss.
    If a new note were given in payment of an old one secured fay mortgage, the mortgage must have fallen with the note on which it was founded: but other, wise, where for mere convenience a new note was executed to take the place of the old one; the object being substitution and not payment.
    
    What alterations on the face of an obligatory written instrument will avoid it, and under what circumstances.
    This case was heard (at Edgefield, June, 1839,) by Chancellor Johnston, who delivered the following decree :
    Johnston, Ch. It appears that the plaintiff, being indebted to the late Dr. Samuel Pressly, in the sum of 5,565 dollars and 11 cents, by sealed note, dated the 1st of January, 1833, and due at one day after date, did, on the day of the dáte of said note, or on the succeeding day, in consideration of said debt, and in order to secure the payment of the same, execute a mortgage to the said Dr. Pressly: — which mortgage npw reads as follows:
    “S,
    Know all me.n by these presents, that I, Beverly Burton, of the State ajjd District aforementioned, for and in consideration of the sum of five thousand five hundred and sixty-five dollars, II cts., to mp paid by Samuel Pressly, of the State above mentioned, and Abbeville District, have granted, bargained, sold and released, and do by these presents, grant, bargain, sell, and deliver, unto the said Samuel Pressly, all my real and personal estate, namely, the tract of land on which I now live, containing four hundred acres, more or less. Also, the following negroes, now in my possesion, to wit: Edward, Daniel, Leah, Stephen, Sucky, Lark, Rynah, Burton, young Lark
      
       Biddy, Ansel, Silvey, and Leith, with their future issue. Also, all my horses, cattle, hogs, sheep, and oxen, with their future increase. Also, my wagon, cart, household and kitchen utensils, plantation tools, &c.
    Together with all the 'rights, members, and appurtenances, ¡the above mentioned property belonging or appertaining thereto. To have and to hold all and singular the above .mentioned property, unto the said Samuel Pressly, his heirs and executors and assigns, forever. Provided, nevertheless, and upon condition, that if the said Burton, his heirs or assigns, shall well ánd truly pay, or cause to be paid, unto the said Pressly, his heirs or assigns, the sum of five thousand five hundred and sixty-five dollars II cents, on or before the Ist of January next, being the amount of a note of hand given this day, and bearing interest, given to the said Pressly, interest to be paid annually, then, and in such case, and at all times from thenceforth, these presents, and all the above mentioned property granted, and every article and clause above contained, shall be null and void to all intents and purposes,' otherwise, to remain in full force and virtue, in law. Signéd, sealed, and delivered, in the year of our Lord one thousand eight hundred and thirty-three. Witness my hand and seal, this 2nd January, 1833.
    BEVERLY BURTON, (l. S.)
    Test, Allen Burton,
    Mary Ann Burton.”
    The following is endorsed théréoíi
    “South Carolina, )
    
      Edgefield District. )
    
    Personally came before me, Allen Burton, arid being duly sworn, saith that he was present and saw the within named Beverly Button, sign, seal, and deliver the within mortgage, for the uses and purposes therein mentioned, and that he did see Mary Ann Burton sign her name with himself, in presence of each other, as above mentioned. Also to the interlining within. Witness the same, sworn to this 14th October, 1834.
    ALLEN BURTON.
    Before me, Peter Qúattlebaum.”
    Endorsed is also a certificate of recording by the Secretary of State, at Columbia, dated Nov. 25, 1834.
    It appears further that Doctor Pressly, the mortgagee, executed to Mr. Burton, the mortgagor, the following counterpart:
    “I, Samuel Pressly, have this day received a mortgage of Beverly Burton', on his real and personal property, namely, the tract of land that he now lives on, containing four hundred acres, more or less, and eleven negroes, Stephen, Sukey, Ned, Daniel, Lark, Riner, Burton, Young Lark, Biddy, Ansel, Sil-vy; and also, his stock of cattle, hogs, sheep, household and kitchen furniture, and plantation tools ; to secure a debt that he owes to me to the amount of five thousand five hundred and sixty-five dollars, for which I hold his note for; and I, Samuel Pressly, do bind myself, my heirs, executors or administrators, to wait for the above mentioned debt eight or ten years; by the said Beverly Burton paying or causing to be paid from four to seven hundred dollars annually, with the interest, and the first payment to commence the next January, twelve months after date; and Burton is at liberty to kill and use any part of his stock for the use of his family ; and the said Beverly Burton is fully authorized to sell or dispose of any part of the above mentioned property, or all, either by private or public sale, so that the said Burton applies or causes to be applied the effects, to the above mentioned debt; or a sufficiency of the effects to settle the above mentioned debt. I, Samuel Pressly, do bind myself to take any good note or notes, due or not due, by allowing the legal interest until due, and give the above mentioned debt credit for the amount of note or notes. Witness my hand and seal this the
    January 1st, 1833. samuel pressly.
    Allen Burton.”
    The plaintiff, after setting forth in his bill the execution of the foregoing instruments, states that he complied with the terms of the counterpart “as far as permitted by the acts of said Samuel Pressly, and to the entire satisfaction of the latter.”
    That in 1834, the sheriff having executions against the plaintiff, sold 4 slaves belonging to him, “two of whom, Leah and Leith, were included in the mortgage;” and Dr. Pressly having become the purchaser, the plaintiff paid him for them, and took from him the following receipt:
    
      “Received of Beverly Burton $669, in full for Ned, Easter, Leith, and Leah, bought at sheriff’s sale by me, and sold to said Burton, Dec. 2, 1834.
    ' SAMUEL PRESSLY.’^
    That in 1835, the said Pressly removed to Alabama, where he thenceforth resided till his death; which took place a short time before the filing of the bill.
    That in 1837, the said Pressly being in this State, a settle-ment was made between him and the plaintiff as regards the principal and interest due; in which settlement the plaintiff paid him, a considerable sum of money, and gave him tioo notes of hand; and that the original note on which the mortgage was founded, “was delivered up, and is in the plaintiff’s possession : — by which delivery” (the plaintiff insists) “the said mortgage was discharged, and was no longer binding.”
    That upon the death of the said Samuel Pressly, (the mortgagee,) the defendant, Geo. W. Pressly, became his administrator in this State; and “notwithstanding his intestate’s obligation and the satisfaction of the mortgage, the administrator has attempted, through Wm. H. Moss, the other defendant, to enforce the same,” the said Moss, as agent of the adminis--trator, having seized and being about to sell the mortgaged property.
    The plaintiff lastly makes the following most serious charge: —that “the mortgage, if not otherwisé void, is void in consequence of interlineations made since its execution, without, the plaintiff’s consent. That the true date of the mortgage is January 1, 1833 ; whereas it reads January 2, 1833. And that the words “on or before the first of January next” have been interlined; besides other alterations.”
    The prayer of the plaintiff is for “an injunction to restrain Wm. H. Moss from selling the property; that it be delivered up; that the mortgage be declared void; or if-sustained, that the administrator be compelled to observe the obligation of the intestate and for general relief.
    It is proper to remark here, that although the plaintiff ha;3 not in his bill informed us what interpretation of “the obligation of the intestate” he contends for, so as to enable the court, (if it should be just,) to “compel the administrator to observe it;” yet his construction has been orally explained to be, that by an annual payment of the interest on the debt of $5,565 11 cts., together with as much more money as, (coupled with the interest,) would amount in the whole to an annual payment of “from four to seven hundred dollars,” the plaintiff might entitle himself to an indulgence of “eight or ten years.”
    The defendant, George W. Pressly, in his answer, after admitting that he is administrator of the deceased mortgagee, states, that in the latter part of the summer of 1838 he called on the plaintiff for payment of the mortgage debt, who claimed indulgence under the collateral instrument executed by the intestate; whereupon there arose a difference between them as to the construction of that paper; but that this defendant agreed not to enforce the mortgage for some time, if the plaintiff would, by the first of January, 1839, make him a payment thereon of about $1000 ; to which the plaintiff cheerfully acceded; but failed to pay the sum or any part thereof
    That in February, 1839, this defendant again saw the plaintiff, who offering unsatisfactory excuses for his failure to pay as he had promised, insisted on further indulgence, promising to pay something in the course of the spring: “but neither at this time, nor at the previous interview, nor at any period, did the plaintiff ever alledge any thing against the validity of the mortgage itself, relying solely on his right to indulgence by virtue of the intestate’s obligation, according to his own construction of it; which construction this defendant insists is manifestly erroneous.”
    
      “This defendant states here, that he holds a note given by the plaintiff to the intestate for near about the amount credited on the mortgage note, as interest paid, and of the same date as the credit; from which he infers that the plaintiff paid no money, on the first of January, 1337, (the date of the credit:) and if so, he has as yet paid nothing according to the terms •of the instrument whose benefit he claims.
    “The defendant professes ignorance of the payment of $669 to his intestate for the four negroes, as stated in the bill; nor has he any personal knowledge of the settlement stated to have been made in 1837; but his opinion already stated, respecting that settlement, is strengthened,-as he contends, by the admission in the bill that the plaintiff on that occasion gave the intestate two notes of hand.
    “With regard to the allegation that the original mortgage note was delivered up, this defendant, having no knowledge of the fact, requires that it be strictly proved; and urges, as proof of its improbability, that in all the interviews between the parties, the only argument of the plaintiff against the immediate enforcement of the mortgage, was the indulgence to which he conceived himself entitled under the collateral instrument. The statement respecting the taking up the original note by the substitution of another of the same tenor, was for the first time disclosed to this defendant by his solicitor, who had got it from the bill, after the same was filed.
    “As to the alledged alterations and interlineations in the mortgage, this defendant expresses his decided conviction,, arising from the high character of the intestate, through life, and from the repeated recognitions by the plaintiff of the validity of the instrument, by pleading for indulgence under it, and promising to make payment upon it, that if it was altered or interlined after its execution, it must have been done with the knowledge and approbation of the mortgagor.
    
      “Finally, this defendant, admits that after the repeated failures of the plaintfF to comply with his promises to pay, he did authorize his co-defendant, who is the sheriff of Edgefield, to proceed to enforce the mortgage, by seizing and selling the mortgaged property.”
    The cause has been heard on these pleadings, and on testimony taken at the trial; the first question is whether the mortgage was annulled by the substitution of a new note in place of the original one.
    From the testimony it appears that the plaintiff gave Dr. Pressly his sealed note, bearing date the 1st of January, 1833, for the payment of 5,565 dollars and 11 cents, one day after the date therof; being the debt intended to be secured by the mortgage ; and that on the 23d of February, 1835, he credited the same with 24 dollars 12j cents, for money received thereon.
    The note was subsequently, and sometime during the life of Doctor Pressly, delivered up to the plaintiff, and another ¡of precisely the same date and tenor was executed by the ■plaintiff and given to Doctor Pressly; on which latter note Doctor Pressly endorsed a credit, dated the 1st of January, 1837, “for seventeen hundred and twenty-nine dollars and .56 cents, it being the interest of the within note up to date.”
    There was no witness to this transaction. Peter Qnattle-baum states that he was at the plaintiff’s house, late in the spring or summer of 1837, when Dr. Pressly was there, and saw them looking over papers, many of which were on the table. Pressly was making or looking over a calculation and Burton was writing : but witness heard nothing said as to the particular nature of the business they were transacting: nor did he see any paper delivered. Another witness, John Brisket, testifies that on the 5th or 6th of .June, 1837, he saw Dr. Pressly, and having asked him whether Burton had paid him pretty well off wliat be owed him, received for answer that Pressly and Burton had had a settlement, and that he, Pressly, was satisfied. Witness did not understand that Burton had paid off the debt, but that he had' paid something on it, with which Dr. Pressly was satisfied:
    Being left in the dark by these witnesses, as to what did take place when the one note was substituted for the other, ánd as to the intention with which the substitution was made,we must draw such inferences from the other circumstances' which have transpired as they naturally warrant. If the new note was given in payment of the old, the fair inference is that the mortgage must fall with the note on which it was founded. But if, for mere convenience, a new note was executed to take the place of the old one, the object being- substitution and not payment, I suppose that all the incidents of the old note were transferred to the new. The debt is not extinguished by the mere change of the evidence of it, where the new evidence is in the same words, and the new instrument does not merge the old by affording a higher or differ-' ent security.
    I conclude from the circumstances here, that thefe Was no intention to pay off the mortgage debt by the change of notes: Upon inspecting the original note, it appears that the credit of Feb. 23, 1835, (for $24- 12-|) was endorsed so low on the back of the paper as to leave little room for following credits, unless by resorting to the expedient of endorsing them higher up; the awkwardness of which may have led the parties' to change the paper, for one more convenient. It appears'from Mr. Quattlebaum’s testimony that the parties had many papers before them. But ihe mortgage, the note, and the collateral instrument, were but three. It may be that upon Doctor Pressly’s emigration in 1835, carrying with him the note with the credit of February of that year, he left debts unpaid be-bind him, and that some of these were taken up from tinte to time by Mr. Burton, and that these were brought in for settlement, and were the subject of calculation, at the time Mr* Quattlebaum speaks of. It is possible that the sums advanced and paid from time to time by Burton, with interest from the time of advancement, (a mode of computation often adopted) amounted, in the aggiegate, to the interest computed to be due on the mortgage debt on the 1st of January, 1837 ; and that to save trouble, a new nóte was substituted, for the purpose of bearing an endorsement for the whole sum justly allowable to Mr. Burton.
    The circumstances stated raised a presumption in my mind that there was no intention to pay off the mortgage debt by the new note. This presumption is strengthened and confirmed by the fact that the mortgage was not taken up, nor was ctny acknowledgement of satisfaction demanded. Why was the mortgage left outstanding, if the new note was not intended to occupy the place of the old, and the mortgage to continue as security for the debt 1 But, besides this, Mr. Burton retained the collateral instrument, and according to the testimony of Mr. Belser and Mr Griffin, insisted constantly, Up to the filing, of his bill, upon this latter instrument. If the ñ'ew note extinguished the prior debt, and with it the mortgage; the Collateral instrument, being by its terms entirely de-pendant On the mortgage,, must also have ceased to operate; and Mr. Burton would, consequently, have been entitled to no indulgence whatever on the new note. When, therefore; Mr. Burton insisted on indulgence according to the terms of the collateral instrument, he in effect acknowledged that the old debt, to which that instrument related, was still subsisting;
    It is true that it was the enforcement of the mortgage against which Mr. Burton set up the collateral paper: and he may have meant that if the former was to be enforced, the latter entitled him to terms. But it is very extraordinary that he confined himself so much as never to have raised the least objection either as to the existence of the mortgage debt, as a mortgage debt, or to the continuing validity of the mortgage. As I understand the witnesses, he treated all three, the debt, the mortgage, and the defeasance, (as he called it,) as operating instruments.
    I add but one more observation on this point. Is it probable that Doctor Pressly, who refused to advance his money to an embarrassed man without the high security of a mortgage, intended to give up the mortgage, and take in payment a note in the same words and without security, on the same person whom he had refused to trust unless secured; especially when it appears that in four years he had paid but a very few dollars beyond the interest 1 Or is it probable that Mr. Burton, a man whose embarrassments had made him so anxiously stipulate for a very long indulgence, should be willing to rescind the stipulations made in his favour, and substitute in lieu of them a new and independent note, over four years due, and on which suit might have been brought forthwith, and the whole debt forced out of him without delay 1
    The next point relates to the alledged alterations of the mortgage: and the charge is of so serious a nature that I have bestowed on it my utmost attention.
    Any material alteration of an instrument, wilfully made by one party, without the consent of the other, and to his prejudice,' vitiates the instrument. The party in possession of a paper apparently altered in any material point, must show either that it was not in fact altered, or that the alteration was authorised, under the peril of being chargeable with having wilfully made it without authority. If the fact be established against him, either by positive or presumptive proof, it is immaterial whether his motive was innocent or corrupt, he must in the civil jurisdictions be deprived of the benefit ofi the instrument dishonored. If he shows that the alteration was made by authority, before the paper was executed, it will .constitute a part of the paper: — if after execution, it will not torn? a constituent of the paper, unless the forms required ■in the original execution .of such a paper were observed after the alteration; but, nevertheless, the body of the instrument .will not be invalidated. If he shows that the alteration was not wilful but accidental, it will not incorporate with the instrument, but the body pi the latter will not be vitiated by it.
    I have said that the burden of accounting for alterations is upon him who is in possession of the instrument: but I suppose that this may be done-as well by the proof arising from circumstances as by calling witnesses. I take this to be as good proof as can be expected in this case; because Doctor Pressly, the party charged, is dead: one of the subscribing witnesses is also dead; and the other, who is Mr. Burton’s daughter, has not been called.
    The first alteration of which the plaintifi complains is in .the date of the mortgage. If this is an alteration at all it consists in filling up with a wrong date; not in the change of one date to another. The place was left blank in the instrument, and this date has been inserted. Whether it is material, might form a question; and in that point of view I should think its only materiality would consist in its serving to identify the note which the mortgage was intended to secure. It refers .to the note as of one date with the mortgage : whereas the note bears date the 1st of January, one day earlier .than the date given to the mortgage. Notwithstanding this discrepancy, both parties acknowledge that the note actually referred to, is not of one date with the mortgage. No injustice, therefore, can follow the misdating of the mortgage deed. Mr. Burton does not deny that the deed was really executed, but he contends that it was executed on ¡the 1st and not on the 2d of January. Allow that it .was executed on the day he states; the case of Barmoe vs. Jay, 2 M’C. R. 371, and the cases there cited; Godard’s case, 2 Rep. 46, and Jackson ex dem. Hardenbug, and Hasbrouk vs. Schoonmaker, 2 Johns. R. 230) establish that the true date of a deed may be shewn, in opposition to a mistaken date. The only question then is, whether the date was inserted before or after execution. If before, there has been no fraudulent alteration, and the true date is proved by the statements of the bill. If after, there may be difficulty. But is it to be believed that a man having both note and deed in his possession should deliberately insert a wrong date, the only possible effect of which would be to refer to a note not in existence, and destroy his security ? The thing is incredible. If the mortgagee had found the date blank after execution, and thought it essential to fill up, the act would have been done with deliberation, and the date would most certainly have been made to correspond with the note in his hands. The difference in date between the deed and note is therefore very satisfactory proof that neither was postdated ; but that the diversity was the effect of a hurried execution. A contemplation of the instrument confirms this view. The body of the mortgage is in pale ink. Following it is an affidavit drawn by Dr. Pressly in ink somewhat deeper. This affidavit, when drawn, had open spaces left for the dating ; and was not, in fact, dated or sworn to until long afteri wards. The date of the mortgage is filled up with ink corresponding with the body of the affidavit. Then follow the signing and attestation, in ink corresponding to the body of the mortgage. The inference is that the body of the mortgage was drawn by Doctor Pressly with one ink; that then a different standish was used in drawing the affidavit and dating the deed, and that the witnesses and Burtojj signed with the ink first used. Such things occur every day.
    
      Then come the interlineations in the deed. The first observation is, that according to the bill itself, some interlinea-tions were made with the assent of the mortgagor. The receipt executed by Dr. Pressly, the 2d of December, 1834, for the price of the four slaves, Ned, Esther, Leith and Leah, is set forth in the bill, which admits that two of them, Leith and Leah, were included in the mortgage. By the way, this statement is an evidence of the inaccuracy of the bill: for upon examination of both the mortgage and the counterpart, it appears that Ned was included in the former, as well as Leith and Leah, making three instead of two: and it further appears that neither Leith nor Leah is included in the counterpart, although included in the mortgage : thirteen slaves being mortgaged, and only eleven enumerated in the counterpart, •which is still farther inaccurate in describing the amount of the debt. What are we to infer where there is such clear .evidence of carelessness and inaccuracy 1
    
    But what L wish to be particularly remarked here, is, that the name of Leith, who the bill admits was included in the mortgage, is interlined in that instrument; which, as I before observed, is proof that interlineations to some extent were authorized.
    The interlineations complained of, besides those already disposed of, are, 1st. the words “on or before the first of January next” — 2d. the words “interest to be paid annually ” and 3d. the words added to the affidavit, “also to the interlining yoithin
    
    I shall dispose of the last in the first place: although it is hardly necessary to examine this matter at all, inasmuch as the corruption charged is not of the mortgage, but of the affidavit, which is an independent matter: and conceding that the latter was corrupted, that would by no means affect the validity qf the former. The only proof brought to shew that the tvórds were added to the affidavit after its execution, consists of a copy of the mortgage and affidavit, certified from the office of Secretary of State, where they were registered, the 25th of November, 1834. In this office copy, the words in the affidavit before referred to, are omitted; from which it is inferred that they have been added to the original since-the registration. I think this is improbable, for several reasons. First, because the interlineations in the mortgage, which this alledged alteration in the affidavit must have been made to ° # r support, were all in the mortgage at the time of registration ; as appears from the office copy; from which the reasonable conclusion would seem to be, that the mortgagee, if he did alter the affidavit at all, would have done it at a time when the alteration would have been registered. After the registration I can perceive no motive for the alteration.
    Although the words referred to do not appear in the affidavit as exemplified, I do not perceive that it results that they were not there when the paper was registered. The exemplification itself shews that, the registration was, in other respects, inaccurate. The recording officer omitted the name of Barton, one of the .slaves mentioned in the mortgage. If careless in recording the mortgage, are we to suppose him' more careful or accurate in registering the affidavit 1 What credit is to be given to such an official copy ?
    Again. It must be remembered that the subscribing witness who- made the affidavit, is dead, and that the justice before whom it was taken could not say that the words have been added since. But when I look at the dating of the affidavit, I have no, doubt whatever that they have not been so added. The dating was originally thus: “Sworn to this-1834” — leaving the day blank. When the affidavit was made, the date was not inserted in the blank, but was set down to the left hand of it. Why 1 Obviously because the words her® Complained of as an after addition, had been inserted in the blank, after it was left, but before the completion of the affidavit ; thus pre-occupying the space and rendering it necessary to set down the date elsewhere.
    Let us now turn to the interlineation in the mortgage, of the words “interest to be paid annually.” I think it beyond doubt that this interlineation was made before the execution of the instrument. The Color of the ink corresponds with the body of the instrument. But the counterpart taken by the mortgagor, contains a stipulation which settles the question. The stipulation is for the payment by him of a certain sum “annually, with the interest.” The operation of the two papers is identical. What is very well worthy of remark is, that in his own paper the words “with interest,” are an interlineation, in the same hand and in the same ink as the interlineation in the mortgage, of which he complains. But-his possession and production of his own paper proves the interlineation therein to be authorized and genuine: which' being established, clears that of which it is a counterpart,from all suspicion'.-
    The remaining complaint is of the interlineation of the' words “on or before the first day of January next.” This' charge' is, in my opinion, refuted,- also, by the counter instrument. It appears by this, which is in Mr. Burton’s handwriting, that it was drawn up so as to provide' that “the first payment” (by Burton) was “to commence the next January twelve months.” But in that state Dr. Pressly would not sign it, as appears from the fact, that before he did subscribe it, he interlined the words “after date,” so as- to make it read “the first payment to commence the next January, twelve months after date.” Now, that he -intended to give a different operation to the paper by the addition of these words, is evident.- It appears to me that his intention was to define the January to which the paper was to refer; arid to describe it as the January which would accrue twelve months after the date of the paper, instead of that which would accrue twelve months after the next January. If he was content with the time described in the instrument, as drawn up by Mr. Burton, why did he insist on inserting the words he did interline 1 And if he intended no alteration in the effect of the paper by the interlineation, why did he make it 1 If Mr. Burton was not brought to the same opinion, why did he submit to have the alteration made 1 My conclusion is, that the parties intended to give the paper the same reading as if the latter words had been included in a parenthesis, thus: “the first payment to commence the next January, (i. e. twelve months after date'.”)
    If this was their intentiori, it may not, to be sure, affect the legal operation of the words actually used in the counter instrument, but it is conclusive evidence of the fact, that the words complained of were cotemporaneously interlined in the mortgage: which fact, let it be borne in mind, is the only question now before us in this point of the case.
    But suppose these words to have been subsequently inserted, and without authority, do they prejudice Mr. Burton? Strike them out, and the effect of the mortgage and the note would be to require immediate payment of the debt. The insertion of them, therefore, so far from being a cause of complaint, was a positive favor to the mortgagor.
    The clear probability, arising from the internal evidence of circumstances, is, that the paper has not been dishonored; and such is my judgment. I will barely add that, if the mortgage was avoided by alterations, ás the plaintiff supposes, he was under no necessity to resort to this jurisdiction.
    The last question before me' is, what is the true interpretation of the instrument held by Mr. Burton l What terms are thereby secured to him ? I acknowledge that I am here free from difficulty ; for I think the matter is very clear.
    By the credit endorsed on the mortgaged note, it appears that the payments, up to the first of January, 1837, amounted to seventeen hundred and twenty-nine dollars and fifty-six cents. This was four years after the date of the note. No other payments have been made since that time. Mr. Burton contends that, by an annual payment, beginning the 1st of January, 1835, of the annual interest on $5565 11, and also by a payment of so much more money, as, with the interest, would make up annual instalments of from four to seven hundred dollars, he would be entitled to the indulgence specified in the instrument executed by Dr. Pressly.
    Let Mr. Burton’s interpretation of the paper in question be conceded; let the payments begin at the time he contends for; still, from that time, he must, at each payment, extinguish the interest then due, and his annual payments must amount at least to $400. The plain interest on the first of January, 1838, was $1947 78 3-4 cents, and on the first of January, 1839, it was $2337 34£ cents. So that, on his own construction, he was in default, at the time first mentioned, upwards of $20Q, and at the time last mentioned, upwards of $600, for interest alone : and his payments had in January, 1839, fallen short of $400 a year, by upwards of $270. These defaults all took place before the administrator of Dr. Pressly proceeded to enforce the sale of the mortgaged property, which was on the 10th of April, 1839. How then, can he contend that he has entitled himself to the indulgence he claims \
    
    But, lam satisfied his construction of the instrument is erroneous. I am not clearly of the opinion that he is wrong in supposing the words employed in the defeasance, as it has been called, can be legally interpreted so as to require the first payment to be made in January, 1834; though I incline to that opinion and give it as my judgment. But, I am entirely satisfied, that by the terms of the instrument, and by the manifest intention ot the parties, he was bound to make annual payments of at least $400 over and above the interest on the capital sum of the mortgage debt: and that even in 1837, he was in default from eight to twelve hundred dollars. The terms of the instrument are not equivocal: and if they were, can it be believed that Dr. Pressly intended to receive payments in such measure, that at the end of 10 years, nearly the whole capital of his debt would remain due ? The intention, on the contrary, was manifestly to stipulate for such payments towards the principal, annually, as would extinguish rhe debt in the “eight or ten years,” which he agreed to wait.
    It is decreed that the injunction granted by the Commissioner be dissolved; that the plaintiff do restore the property to the hands of the defendants as before the said injunction was granted; and that the bill be dismissed with costs.
    
      Grounds of Appeal.
    
    1. That the original note, on which the mortgage from Burton to Pressly was founded, having been delivered up in 1837, the mortgage was thereby discharged.
    2. That the interlineations and alterations having been made in the mortgage subsequent to its execution, and without the knowledge or consent of the complainant Burton, it was thereby rendered void and of no effect
    3. That, admitting the mortgage to be valid, when taken in connection with the counterpart executed by Pressly, not more, upon any construction of the instrument, than $1500, and upon the just construction, not more than $800, were due; and consequently, the levy made by the sheriff was excessive and void.
    
      4. That Burton should have been allowed a credit upon .the mortgage, admitting it to be good, for two negroes, Leith .and Leah, the price for which were paid by Burton to Pressly subsequent to the execution of the mortgage.
    
      fflimbish, Bellinger, and Wardlcm, for the motion.
    
      
      
         The words in italic are interlined iri the original.
    
   Curia, per

Johnston, Ch.

Upon a review of the circuit ..decree, it appears free from error, except upon a point connected with the fourth ground of appeal, which was not brought to the view of the Chancellor. Certainly the sum paid by the plaintiff for the re-purchase of the two slaves, Leith and Leah, was not paid upon the mortgage debt, and should not be credited thereon. But the slaves themselves should be exempted from the .mortgage lien. The mortgage, as all mortgages of personalty do, vested the title in the mortr gagee, subject merely to an equity to redeem. When, therefore, Dr. Pressly re-conveyed to the plaintiff, he transferred to him all the title that he had, not only by virtue of his purchase from the sheriff, but under the mortgage itself. The re-conveyance operated as a release of the mortgage pro tanto.

It is ordered that the defendant be enjoined from enforcing .the mortgage against Leith and Leah. In other respects the circuit decree is affirmed, and it is ordered that the plaintiff pay the costs.

Johnson and Dunkin, Ch., concurred.  