Opinion
(August Term, 1860.)
1. Where the payee of a sealed note took a mortgage of slaves for the security thereof, which he permitted to lie for at least sixteen years without the payment of any part, even interest, and during that time the slaves remained in possession of the mortgagor, who sold some of them for the satisfaction of other debts, it was Held that this amounted to a presumption that the right to foreclose had been abandoned.
2. Where the question was, whether the length of time during which the mortgagee of slaves had foreborne to enforce his security did not create a presumption of the abandonment of the right to foreclose, it was Held that the insolvency of the mortgagor was not evidence to rebut the presumption.
CAUSE removed from the Court of Equity of RUTHERFORD.
Shipp and Gaither for plaintiffs.
N.W. Woodfin and J. W. Woodfin for defendant.
The defendant Lane, in 1840, executed to the plaintiff Arthur Blake a sealed obligation for the sum of $2,000, which purports to be for value received, at which time a mortgage deed in the common form of a deed of trust, conveying seven slaves, was executed to the plaintiff Walter Blake, as trustee, to secure the payment of the said obligation, and the said instrument provides that the said Walter, as trustee, shall sell the property for the purpose aforesaid, unless the defendant should pay the said debt on or before 1 November, 1841, with interest. The deed provides that the defendant should retain possession of the slaves until the same should be wanted to answer the purposes of the trust, and the defendant did retain the possession of them, without any demand for the money or the property, until about 1856, when a bill in equity similar to the present was filed. The bill alleges the insolvency of the defendant, and that he is about to sell the slaves mentioned in the deed of trust and have them conveyed beyond the limits of the State, and that he is apprehensive that he will lose the benefit of his said security. He therefore prays for a writ of sequestration to restrain the defendant in this particular, and also that the trustee may be decreed to take possession of the slaves in question and sell the same for the satisfaction of the said debt. The bill of plaintiffs, by way of anticipating the (413) conclusion from the lapse of time, alleges the recognition of the existence of the debt by the defendant at various times and in various letters and other written evidences to the same effect, and attempts to explain the fact that the defendant has had possession of the slaves, and that nothing has been paid on the note and no attempt made for so long a time to enforce the mortgage by the allegation that the defendant was much oppressed with debt and has since become insolvent, and as he was in prosperous circumstances himself and did not need the money, from tenderness and kind feeling towards the defendant and his family, he gave him this long indulgence.
The defendant answers and insists on the long lapse of time from the day of forfeiture (1 November, 1841) to the date of the commencement of this suit (13 December, 1858) and his continued possession of the slaves as the grounds of a presumption that the plaintiff abandoned his right to enforce the security sought now to be set up. He admits the execution of the sealed note and the deed of trust set out in the bill, but he says these were made not for a loan of money or any other valuable consideration, but in order to keep his other creditors from seizing on these slaves for the satisfaction of their debts, and that it never was the design of the parties that the said mortgage or note should in any way be enforced. He alleges, further, that he did sell two of the slaves to neighbors of his, and applied the proceeds to the payment of other debts, and that the plaintiff Arthur made no complaint about it and has never given himself any concern as to the mode in which these slaves were treated.
There were proofs taken in the cause which are sufficiently treated of in the opinion of the Court.
Being set down for hearing, the cause was transmitted by consent.
The defendant held possession of the slaves for more than ten years after the execution of the mortgage. During that time some of them were sold for the satisfaction of other creditors, and the mortgagee makes no objection; and during the whole time, nothing is said or done in respect to the mortgage debt, and not even one cent of interest is paid or demanded.
From this state of things, the law requires the Court to presume that the right to foreclose, or otherwise enforce the mortgage, has been abandoned for some cause or other; whether by reason of a different arrangement which the parties may have made, or because the mortgage money has in fact been paid, or because, as is alleged in the answer, it never was the intention of the mortgagee to enforce the mortgage, are subjects beside the question.
The presumption of the abandonment of the right to enforce the mortgage being established, the question is narrowed to this: Do the plaintiffs offer evidence sufficient to rebut this presumption? Without entering into a detailed examination of the evidence, it is sufficient to say, after perusing and giving to the whole of the evidence full consideration, we are of opinion that no fact established by the proofs is sufficient to rebut the presumption of an abandonment of the right to enforce the mortgage. The proof in regard to the insolvency of the defendant and his consequent inability to have paid the mortgage debt is beside the question, because the slaves conveyed by the mortgage constituted a fund out of which the payment of the mortgage debt could at any time have been enforced; and for reasons of public concern, if the matter is allowed to stand for more than ten years, during which time the mortgagor is in possession, the Court is required to presume that the right to foreclose has been abandoned.
In regard to a mortgage of slaves, if the mortgagee holds possession for more than two years after the time of forfeiture, the equity of redemption is barred by the statute of limitations — showing that the policy of the law is to discourage all suits on stale claims, (415) especially in regard to property of this description.
PER CURIAM. Bill dismissed.
Cited: Headen v. Womack, 88 N.C. 470; Wiley v. Lineberry, 89 N.C. 18; Thornburg v. Mastin, 93 N.C. 262; Newton Academy v. Bank, 101 N.C. 489.