Kohlheim v. Harrison

34 Miss. 457 | Miss. | 1857

EisheR, J.,

delivered the opinion of the court.

This was a bill filed by the complainant in the Vice-Chancery Court at Eulton, to redeem a slave alleged to be held by the defendant under a mortgage executed by the complainant to one John Walker, in January, 1846.

It appears from the allegations of 'the bill that the complainant borrowed from Walker a certain sum of money, and, for the purpose of securing him, executed an absolute bill of sale conveying the slave in controversy, and at the same time delivered the slave to Walker. The bill further alleges that there was a verbal understanding that the complainant might at any time redeem the slave, on payment of the money and interest.

The answer is in every respect responsive to the bill, and sets up, in addition, that Walker, about 1849, made his will, bequeathing the slave to the defendant; that Walker soon thereafter died, and that his will was duly established in the proper court. The same facts are alleged in the bill. The suit was not commenced until the 13th of November, 1854.

Under this statement of the case, it is only necessary to notice the defence made under the Statute of Limitations. Walker, by his will bequeathing the slave to the defendant, asserted an absolute title; and this put an end to the relation of mortgagor and mortgagee, if in fact that relation ever existed. The bill sets out the time of the probate of the will, and it must, therefore, be presumed, in the absence of any showing to the contrary, that the complainant was then informed of the title asserted by Walker; and the statute commencing to run from that date, constituted a bar before the filing of the bill.

Decree reversed, and bill dismissed.