*20
But Ta yuor, Chief-Justice,
¶1
said that the slave mortgaged was delivered into the possession of the Defendant in March, 1789, when the deed was made. By the condition ' of the deed, the money became payable the 1st March, 1793; from which time to the filing of the bill is a period of twenty-two years and five months. Throughout this long possession, there is no act, no acknowledgment shewn on the part of the Defendant, by which the transaction was recognised as a mortgage. The right of redemption must, under these circumstances, be presumed to have been abandoned. The bill must be dismissed..
Hair, Judge, and Henderson, Judge, concurred»
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Case posture Posture THIS was a bill filed in August, 1815, from MECKLENBURG Court of Equity, for the redemption of a negro slave, Grace, and her issue, and was transferred from the Court of Equity for Mecklenburg to this Court for trial.
The bill charged that complainant's intestate borrowed from Powell, the defendant, the sum of eighty pounds in the year 1800, and for the purpose of securing the payment of it executed a bill of sale to Powell for the said slave, subject to a proviso of redemption on payment of the said sum; that defendant took possession of the slave at the time of making the deed, and had continued it ever since; that she had issue, several children, who were also in his possession; that Russ in his lifetime paid forty pounds, part of the mortgage money; that he then died intestate; that complainant had obtained letters of administration of his estate, and had offered to pay the residue of the said mortgage money and interest, but at the same time alleged that it had been already satisfied out of the hire and profits of the slaves. Complainant then prayed an account and that he might be let in to redeem.
The defendant admitted in his answer that he lent Russ eighty pounds, but it was on 21 March, 1789, and that he then took a
bill of sale from Russ conveying to him the slave Grace, with a condition that if the money should be repaid on or before 1 March, 1793, the deed should be void; that eighty pounds was the full value of Grace when he took her in 1789. He denied that Russ or the complainant had ever paid or (18) offered to pay the eighty pounds, or any part thereof, or had requested him to give up the negroes or to come to an account. He stated that Grace had issue, six children, which he had raised and then held as his own.
The answer then insisted that the defendant had been in the peaceable possession of the slaves for more than twenty years after 1 March, 1793, before suit brought, and that as he gave a fair price this Court would not aid complainant. With his answer the defendant exhibited the deed, which bore date and was of the tenor as stated in the answer and in the usual form of mortgages except that in the conclusion it contained this clause, that if the said money was not paid at or before 1 March, 1793, this deed shall remain in full force and virtue as if there had been no condition annexed to it. It was proved and registered in May, 1793.
It did not appear by the bill or answer when Russ died or when complainant administered, though the letters of administration, which were filed among the papers in the suit, bore date in August, 1815. Nor did the bill charge when Russ paid the forty pounds nor when complainant offered to pay the residue.
Several issues were submitted by the court to a jury, who found that in 1789 the sum of eighty pounds was something less than the value of Grace; that at the time of filing the bill she and her increase were worth greatly more than that sum; that there was no evidence that Russ or complainant had paid or offered to pay any part of the eighty pounds; that Russ did not, in his lifetime, set up any right to redeem after March, 1793, and that the defendant had held the said slaves adversely and claiming them as his own property for twenty-one years, or thereabouts, before suit brought. Source: CourtListener
