21 Ala. 322 | Ala. | 1852
— The instrument made and delivered by Burnham to Ross, on the 1st November, 1844, is a mortgage of the slave Huida mentioned in it, and not a bill of sale. It is manifestly intended only to secure to Ross the repayment of the money received by Burnham on the day mentioned, to-wit: December 25th, next following the date of the instrument, by a lien on the property.
In the absence of an express stipulation to the contrary, Burnham was entitled to retain possession of the slave so mortgaged until the law day, December 25, 1844; and he had the right to vindicate this possession against all persons who unlawfully withheld the slave, whether it was McKee, a prior mortgagee, whose debt had been satisfied, or even against Ross himself. If the agent of Burnham, who went after the slave to McKee’s, failed to get her, it was the business of
As this point settles the right of Boss to sue for the money which he advanced, upon the written instrument itself, it is needless to inquire what effect is to be given to the subsequent admissions of Burnham, that he owed_Boss the money, and that Boss had never got possession of the slave.
The objection offered to this claim, that it was not filed in time, is made upon precisely the same state of facts presented in another case between the same parties, which was before this court at the last term, 20 Ala. 105. We there held that the objection was properly overruled, and we shall follow that decision in this case.
Under the view we take, the charges asked of the court were properly refused; and the judgment is affirmed.
