Opinion
(June Term, 1831.)
1. A mortgagor of a chattel, having the right of possession for a stipulated period, cannot, after the expiration of that period, dispute the title of the mortgagee, and the same rule applies to his vendee.
2. Courts of law afford no remedy for a distributive share, because their forms were fixed before the right to distribution was given.
3. But the right being now given by statute, it is recognized in courts of law.
DETINUE for a negro, tried on the last circuit, at NEW HANOVER, before his Honor, Daniel, J. The plaintiff's claimed title as follows: The slave in dispute had belonged to one James Saltar, who had died intestate, and administration upon his estate had been committed to one Locke; David J. Melvin, who married a daughter of Salter, had mortgaged the whole of his interest in the estate of Saltar to the plaintiffs. The mortgage deed contained a stipulation that Melvin should retain possession for five years, which was the period limited in which the mortgage debt was to be repaid. This mortgage was duly proved and registered. The defendants claimed under Melvin by a subsequent purchase, and proved that after the execution of the mortgage to the plaintiffs, by an order of the county court of Bladen, where Saltar lived, a division of his slaves took place, when the slave in dispute was assigned to Melvin, and was delivered to him by Locke. This order was made without filing a petition, and there was no judgment of the court confirming the division. After the expiration of the five years, during which, by the terms of the mortgage deed, the slave was to (99) remain in Melvin's possession, he being then in that of the defendant, the plaintiffs made a demand of him, and upon a refusal, instituted this suit. For the defendants it was contended that at the execution of the mortgage, Melvin and wife had only an equitable interest in the estate of Saltar, and consequently that the plaintiffs acquired no legal title thereby, and that the division being irregular, did not vest a legal title either in the plaintiffs or Melvin. But the presiding judge, thinking that as the slave was delivered to Melvin as a part of his distributive share in the estate of Saltar, Melvin must be considered as holding him by the permission of the plaintiffs; and as he, after the expiration of the time limited for the payment of the mortgage debt, could not dispute the title of the plaintiffs, so neither could the defendants.
No counsel for either party.
A verdict was returned for the plaintiffs, and the defendants appealed.
What would be the effect of a payment by the administrator to a distributee, after an assignment by the distributee, and notice thereof to the administrator does not arise in this case. For this action affirms the delivery of the slave in question to the distributree, and claims the benefit thereof. Nor need we examine the regularity of the proceedings of the county court in ordering a division of the intestate's estate, for both the plaintiffs and defendant claim under it. In fact, the delivery of the slave by the administrator, no matter whether the court had jurisdiction or not, or whether the petition and order for a division were regular or irregular, passes the property. It is true a case might arise where a delivery was made in pursuance of an irregular or invalid order for a division, and under an impression that such order was compulsory on the administrator, which might afford grounds to set aside and annul the delivery as being made under a mistake. (100) But that is not this case. For these reasons, we deem it unnecessary to enter into the question whether the court had jurisdiction, or whether the proceedings were regular, but found our opinion upon the effect of the delivery of the slave in question to Melvin, as his wife's portion, in whole or in part of her father's estate. The only remaining question is, What was the effect of that delivery on the then state of facts, with the subsequent demand of the slave, and the commencement of this suit?
We are all of opinion with the presiding judge, that Melvin, the husband, received the slave in question as mortgagor, for himself and his mortgagees, according to their respective rights; and that he continued to the time of his sale to hold in that character; and that the defendants coming in under him, with notice of the mortgage, either express or implied (for the mortgage was duly registered), held the slave until the demand in the same manner. We do not fully understand what is meant in the argument appearing in the case that a distributive share of an intestate's estate is a mere equity, and that the defendants are purchasers for a valuable consideration. If by it is meant that a court of equity, or a court proceeding by its forms, is resorted to, to enforce payment or delivery of a distributive share, the position is admitted. For it is true that the forms of a court of law do not afford an adequate redress, because the right to distribution is of modern date, and was introduced after those forms were settled. But if it is meant that it is not a right recognized by and as binding at law, as it once was, in conscience only, the position is denied. It is a right given by statute, its extent and nature defined, and must therefore be known to and recognized in courts of law as a legal right. But if it is a mere equity, binding in conscience, the defendants cannot protect themselves from its obligation in the hands of mortgagees. For although they allege themselves to be purchasers for value, yet they do not allege that they had no notice of the mortgage. And if they did, it would be disproved by its registration, which is notice to the world. As to the right of the husband to sell or mortgage his wife's distributive share for value, I presume (101) that will not be denied.
PER CURIAM. Judgment affirmed.