Opinion
May Term, 1819.
From Orange.
A negro slave being mortgaged in 1784, and the parties living in the same neighborhood all the time, the mortgagor never applied to redeem until 1805. The mortgagee in answer to the application said "he was old, and unwilling to have a law suit; and he would deliver up the negro if the mortgagor would pay the money loaned, with interest, and charge nothing for the hire of the negro. This is a recognition of a then subsisting unsatisfied mortgage, and relieves the Court from considering whether in this country the time of redemption should be shortened, from the policy of our laws in quieting claims at law within a shorter period than is required in England.
The time is to be computed from the last period at which the parties treated the transaction as a mortgage; in an action at law, the acknowledgment of the mortgagee in this case would take the case out of the statute of limitations. For as the law requires not an express promise for the creation of a duty, but raises the promise whenever there is a sufficient legal consideration, so it will keep that promise alive, where there is an acknowledgment of a sufficient subsisting unsatisfied consideration.
Nor can it avail the mortgagee anything, that he declared he would give up the negro, to buy his peace. Things exist independent of their names; if from the nature of the thing it afford no evidence of the debt or duty, if the sole object of it was to avoid labor or expence, not from a belief of loss in the thing itself, then it can weigh nothing, because it confesses nothing; and if it be taken as the confession or acknowledgment of the party, and taken altogether, there is no debt or duty acknowledged. But if from the nature of the offer, confession or acknowledgment, the Court perceive in it an acknowledgment of the debt or duty, that weight is to be given to it, which is given to all other evidence, notwithstanding the party, at the time of making it, attempt to give it a name which he thinks will make it weigh nothing.
Complainants filed their bill to redeem a negro slave mortgaged to Defendant's testator many years before the filing of the bill; and the facts as agreed upon by the counsel were as follows:
On 21 December, 1784, William Shepperd being in possession of the negro boy Limus named in the bill, borrowed 30 l. (219) from Thomas Wilson, and to secure the payment thereof executed to Wilson a deed in the following words, to-wit:
"Know all men by these presents, that I, William Shepperd, of Orange County, in the State of North Carolina, have bargained, sold and delivered unto Thomas Wilson of the County aforesaid, and by these presents in plain and open market according to due form of law, have bargained, sold, set over and delivered, one negro boy Limus, about eight years of age, unto the said Thomas Wilson, for and in consideration of the sum of thirty pounds, in gold and silver to me in hand paid, by the said Thomas Wilson; and I do hereby warrant the title of the said negro boy, to the said Thomas Wilson from the right, claim or title of any person or persons whatsoever: Provided nevertheless, and it is hereby agreed by and between the said parties, that if the above said William Shepperd, his heirs or assigns, shall well and truly pay or cause to be paid unto the said Thomas Wilson, the aforesaid sum of thirty pounds, in gold or silver, with lawful interest from the date hereof, on or before the 20th day of March, next ensuing the date hereof, then and in that case, the title to the said negro boy Limus, shall revert to and be vested in the said William Shepperd, and not otherwise. Witness my hand and seal, 21 Dec'r, 1784.
"WM. SHEPPERD, (Seal.)
"Done in presence of "WM. RAY, "SALLY HAYWOOD."
"22 December, 1784.
"I acknowledge to stand the risk of the within negro's life, and if he should die in the space of the time within mentioned, that it shall be my loss. WM. SHEPPERD."
On 1 May, 1790, Thomas Wilson assigned the said deed to Andrew Murdock, who took possession of the negro Limus immediately and continued in possession until the filing of this bill. In the fall of 1790, Murdock called upon Shepperd, and requested him to take the negro Limus and pay him the thirty pounds with the interest which had accrued thereon. Sheppered refused. He lived within twelve miles of Murdock's residence, and was in good circumstances, able, at any time from 1790 to the filing of the bill, to advance the thirty pounds and interest.
In February, 1805, Shepperd tendered the money which Wilson had loaned to him, with the interest which had accrued, and demanded the negro, and seven hundred dollars for his services whilst in Murdock's possession. Murdock (220) refused to accede to the demand; but saying that he was old and unwilling to have a law suit, he declared his willingness to deliver up the negro Limus, if Shepperd would pay him the thirty pounds with interest, and demand nothing for the negro's services.
In the fall of 1805, Shepperd filed this bill to redeem the negro, and prayed for an account. Murdock, in his answer, insisted upon the full price at which the negro had been mortgaged, upon his application to Shepperd in 1790, to redeem, and Shepperd's refusal, upon the lapse of time from 1790 to the filing of the bill in 1805, upon Shepperd's ability to advance the money, and the understanding of the parties as to the risk of the negro's life after 25 December, 1785.
It was submitted to this Court to decide, whether the Complainants be entitled to redeem; and if so, upon what principle the account of the services of the negro ought to be taken.
This must be either a contract of sale or mortgage; it cannot be both, nor can it be one without possessing all its essential requisities. the attempt, therefore, to throw on the mortgagee the risk of the life of the negro, after a particular period, and when it was a mortgage, was vain. It is true it is a circumstance to show it was not a mortgage; but it is of no avail, allowing it to be one. For it is impossible that a thing shall be and not be at the same time. Assuming this to be a mortgage, as it unquestionably is, the risk of the slaves's life was with Shepperd as long as the contract continued a mortgage; that is, as long as the slave was redeemable.
The principle question in this case is, whether the equity of redemption be lost; and we are relieved from the decision of the point pressed upon the Court, that in this country the time of redemption should be shortened, from the policy (221) of our laws in quieting claims at law within a shorter period than is required in England: For we consider the transaction of 1805, a few months before this bill was filed, as a complete recognition of its being then an existing mortgage. The time is to be computed from the last period at which the parties treated the transaction as a mortgage. Here, the Defendant, Murdock, offered to surrender the slave, if the mortgage money and interest should be paid to him, and the hire given up. This is acknowledging the tenure by which he held him; that he had never foreclosed the equity of redemption, and that Shepperd had never released or abandoned it. In an action at law, where the statute of limitations were relied on, it would have taken the case out of the statute, although he demanded an exemption from the hire. For as the law requires not an express promise for the creation of a duty, but raises the promise wherever there is a sufficient legal consideration, so it will keep that promise alive where there is an acknowledgment of a sufficient subsisting, unsatisfied consideration. As if a man were to say, that "I purchased a horse of you twenty years ago, for which I agreed to give one hundred pounds; but I have never paid you, and I never will, and I shall rely on the statute of limitations." There can be no doubt but that this would take the case out of the statute of limitations, contrary to his express declaration. So Murdock refusing to deliver up the negro upon the usual terms of redemption, yet acknowledging enough to shew that it was an unsatisfied mortgage, shall be compelled to surrender up the mortgaged property upon the usual terms; nor can it avail him any thing, that he declared that he offered those terms to buy his peace, by way of compromise. Things exist independent of their names: their names are only to point out or designate them. The thing is not altered by its name: Call it as you please, it remains the same thing still. If from the nature of the thing it afford no evidence of the debt or duty, if the sole object in making (222) it was to avoid labour or expense, not from a belief of loss in the thing itself, then of course it can weigh nothing; because it confesses nothing, and if it be taken as a confession or acknowledgment of the party, and taken altogether, there is no debt or duty acknowledged. But if from the nature of the offer, confession or acknowledgment, call it what you will, the tribunal which decides the fact, perceives in it an acknowledgment of the debt or duty, that weight is to be given to it which is afforded to all other evidence, notwithstanding the party, at the time of making it attempt to give it a name which he thinks will make it weigh nothing. In this case, there cannot be a doubt that the party misnamed it, in saying his only object was to buy his peace. His object was, to liquidate a claim from which he had serious apprehensions. It must, therefore, be considered as a recognition of the mortgage.
This may be called a hard case, because Shepperd lay by so long. But Murdock might have hastened him, by calling upon him in a Court of Equity, to redeem or to be foreclosed. Shepperd may, therefore redeem upon paying the principal and interest due on the mortgage, up to the time of redemption; for his exorbitant demand for hire, discharged the virtue of the tender in 1805. Murdock must account for a moderate hire up to the same period, and be allowed for all expenditures made on the slave, of every description, and for loss of time. The Court would make Shepperd pay the costs, were it not for the precedent — Each party must pay his own costs. (223)