Milly v. Smith

Decided September 15, 1829

Supreme Court of Missouri · decided 1829-09-15

<p>A negro is mortgaged in the State of Kentucky, and afterwards,but before forfeiture of the mortgage, is carried by the moitgagor into the State of Illinois with a view to residence, from which State she is taken by the mortgagee and brought to Missouri, where she institutes an action for freedom against the mortgagee — held, that under the laws of Kentucky, which is the common law of England in this respect, the mortgagor is the legal owner of the slave; that he could emancipate her; and. that the slave, by her residence in the State of Illinois, acquit ed a iuh modo right to freedom by the ordinance of 87, which liberated her from the dominion of the mortgagor, and gave her a right to freedom until the mortgagee, by the means rendered necessary by the terms of the mortgage, again subjected her to slavery.</p> <p>Wash, J., dissenting.</p>

Cited by 1 later decisions — most recently July 1910

1 state decisions

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Decided 1829-09-15

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Wash, J.,

¶1dissenting.

¶2I dissent from the opinion of the Court above delivered. I think the weight of authority is, that the mortgagee is the legal owner. Various authorities have been cited on both sides for and against the position. Most clearly the mortgagor is not the full owner, he is at most but the qualified owner. In this case Shipman was the qualified owner for specific purposes, and had no right to emancipate the plaintiff in Kentucky or elsewhere; indeed, it seems to he conceded on all hands, that Shipmaa could not have emancipated Milly by his express deed, and why give indirect and fraudulent efforts and implied assent more effect than his deed could have? I incline to consider the plaintiff in the light of a purchaser from Shipman, with a full knowledge of Smith’s lien.