9 Port. 472 | Ala. | 1839
Three points have been made by the counsel for the plaintiff in error, which, he insists,
1. That as the value of the services of the slave, while in the possession of the mortgagee and his assignee, was shown to amount to more than the principal and interest of the mortgage debt, it was extinguished by operation of law. The title, therefore, re-vested in the mortgagor, and he was entitled to re-take and retain the slave, against the mortgagee and his assignees.
2. That the sale under the trust deed, having been made when the slave was absent, and not within the custody or power of the trustee, so that no delivery could be made, — it was for this reason inoperative and void.
3. That as the plaintiff in error was in the adverse possession of the slave, when the sale was made under the trust deed, claiming to hold him in spite of and adversely to the trustee, and not under any title connected with the mortgage or trust deed, the sale was illegal and void, as against public policy, it being, under these circumstances, but the transfer of a right of action.
These positions will be severally examined in the or-, der they are stated.
1. The validity of the mortgage from Brown to Pis-tole, was not disputed on the ground of usury in the Circuit court; but the argument is, that it is a harsh and un-conscientious contract, which neither equity nor law will enforce to a greater extent than the interest of the sum lent or secured, and that the value of the services beyond this, must be applied in extinguishment of the original debt. We think it may be inferred from the evidence, that the mortgagee was placed in possession of
At the period fixed for the payment, the value of the services, did not amount to the sum due, even if a court of law was competent to ascertain and settle the account between the parties, and no subsequent payment could, in law, have the effect to divest the title of the mortgagee, become absolute by the forfeiture of the condition, or revest it, in the mortgagor — (Story on Bail. 197.) These principles were recognised by this court, in the case of Hamer vs. Harrell, (2 Stew. &Por. 323,) which is decisive of this feature of this case.
2. It is not perceived, that the- rules governing sales by
3, The remaining point to be considered, is that which relates to the adverse possession held by the defendant, when the sale was made; and before entering on its examination, it may not be improper to recapitulate the facts disclosed in connection with this point in the case. Shortly before the day appointed for the sale of the slave, he was taken from the possession of the trustee, without his knowledge or consent, and on the day of the sale, was in the possession of the plaintiff in error, who claimed him as belonging to his children. At the time of the sale, the trustee, cestui que trust, and the defendant in error, were publicly notified by the plaintiff in error, that he forbid the sale; — whether these persons were also informed that the slave was in his possession, under claim of title adverse to the title of the trustee, is not stated, but is perhaps properly inferrable from the other
The statute of limitations would commence running from the time of such a denial and disclaimer, and it would rebut every presumption of the possession being held under, or in accordance with the actual and true title. There may be, and doubtless are cases, in which a denial or disclaimer of a title would not avail a party in possession of a chattel, as, where it was held by a guardian, bailee or tenant — in these, and the like cases, the title, though denied and disclaimed, could never be questioned, until the possession itself was actually restored to the person from whom it was derived. It may
This rule is perfectly familiar when applied to real estate, and is supported by numerous decisions — (Brant vs. Ogden, 1 John. 156; Jackson vs. Camp, 1 Cowen, 605; Jackson vs. Sharp, 9 John. 164; La Frombois vs. Smith, 8 Cowen, 589; Livingston vs. Penn. Iron Co., 9 Wend. 511.) But the cases are very rare in which it has ever been necessary to apply the rule to personal chattels. This has probably been owing- to the inferior value of property of this description, when compared with real estate, and from the fact, that delivery almost always accompanies the transfer of the title. In two of the States which, hold the same description of property as that which is the subject of this suit, similar questions have arisen to that which is now presented, and the courts of those States have held the rule of law equally applicable to personal, as to real ‘estate — (Stedman vs. Reddick, 4 Hawks, 29.; Stagdale vs. Fugale, 2 Marshall, 136.) Nor is the doctrine of these cases disputed in any decided case in this country, so far as our researches have enabled us to ascertain, except the case of The brig Sarah Ann, (2 Sumner, 206.) In this, even, it is questionable whether the learned judge intended to be understood as denying the application of the general rule to personal chattels. His observations are these: “the sale is not,
The charge requested by the counsel for the plaintiff in error, assumed the question to be determined by the jury, but the charge actually given' was erroneous, and Well calculated to mislead the jury from the true question before them, on the evidence in proof. That was not Whether the defendant below • had acquired the possession by fraud or violence, but whether, at the time of the sale, the possession was held by him under a bona fide claim of title, known to the true owner. If the latter was the case, then the sale was inoperative, and the defendant below could not be compelled to litigate his title with the assignee, of the right of action remaining With the owner of the title.
Our conclusion is, that the Circuit court erred in the instructions givén, and the judgment is reversed, and the case remanded.