Craft v. Bullard

1 S. & M. 366

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

This is a motion to dissolve an injunction staying a judgment at law.

The complainant charges in his bill, and it is distinctly admitted by the defendant in his answer thereto, that the bill of sale from the former to the latter conveying the two slaves, Henry and Charles, although absolute and unconditional upon its face, was, in point of fact, intended as a mere security for the payment of the money for which the judgment at law was obtained. I can have no doubt, therefore, that the transaction between them amounted to nothing more than an ordinary mortgage, and that it was in no sense a conditional sale of the slaves. It is well established, upon both principle and authority, that an absolute deed may be converted into a mortgage, by parol evidence, showing that it was intended as a mere security, and that the grantor will then be let into all the rights and privileges of a mortgagor. Whether the complainant presents himself in such shape as to entitle him, to these privileges, is now a proper question for examination ; because, if the complainant would not be entitled to relief under his bill, upon final hearing, it is clear the injunction ought not to be retained. The only ground that I «an perceive the complainant has for relief in the premises, grows out of his character as mortgagor. The only relief, that I am advised of, which this Court can grant a mortgagor against his mortgagee, is that of allowing him to redeem the mortgaged property, upon a bill properly shaped for that purpose. Here the bill states, that one of the slaves was placed in the possession of the defendant, and yet remains there, so far as the complainant is advised ; and then prays, not for a redemption of the slave, but for an account of his hire and of his value, and for a perpetual injunction against the judgment at law. The right of a mortgagor to call the mortgagee to account, is incident to, and, as a general rule, can only arise under, a bill for redemption. Postlewaite v. Blythe, 3 Mad. Rep. 242; Goldsmith v. Asburn, 1 Edw. Ch. Rep. 560. A mortgagor has no right to force the mortgagee to take the property at an assessed value, and cannot call for an account upon any such principle. According to this view of the case, if'nothing more had appeared than what is shown by the complainant’s bill, I should have discharged the injunction ; but the defendant discloses, by his answer, the fact, that he has since sold the slave that went into his possession, and thus put it out of his power to surrender him : this entitles the complainant to call for the value of the slave, and, I think, cures what would otherwise have been a fatal defect in the structure of the bill. The complainant is clearly entitled to the slave, or his value, as well as an account for his hire, by way of set-off against the payment of the mortgage-money. I give no opinion as to the effect of the subsequent agreement between the parties, as to the mode of settling the difficulty between them. Whether it is to be regarded as fixing the amount to which the complainant is entitled as a credit for the hire and value of the slave, is a question that will properly arise upon taking the account.

Let the motion to dissolve the injunction be overruled.