By Mr. Chief Justice SvrFOLD:
The defendants in error, P. R. Montgomery and W. Belcher, of Tennessee, charge by bill, that in 1807 or 1809, Hugh Montgomery, father of complainant Montgomery, conveyed to Hatfield, then of Campbell county, Tennessee, a negro girl, Malinda, for three hundred dollars. After bargaining for said girl, at the time of mailing the conveyance aforesaid, said Hatfield, in consideration of three bushels of salt, of the value of five dollars per bushel, paid him by said H. Montgomery, agreed to allow him the privilege of redeeming or repurchasing said girl at any time for said three hundred dollars, and interest thereon to the time of his offering to redeem; and an indorsement, containing this agreement, on said hill of sale, was then mads and signed by Hatfield — That in a reasonable time thereafter, said Hugh Montgomery, by his agent James M. Campbell, tendered to Hatfield the three hundred dollars, with interest, and demanded the negro, which was refused: that the bill of sale is in possession of Hatfield, so that complainants cannot produce the same; but they pray that Hatfield be compelled to produce it: that said cen-[62]*62veyance is a mortgage, and was so considered by said Hugh, and that said Hatfield has fraudulently at-temptéd to obliterate and deface said indorsement.
The bill farther charges, that in May, 1830, said -H. Montgomery assigned by instrument, here ready to be produced, all his right, title and interest in said mortgage, to complainant, Montgomery, and that by him, half thereof was assigned to Belcher; and that they would have redeemed said girl, but for the fraudulent conduct of said Hatfield: that, in or about 1-817, Hatfield, removed from Campbell county, Tennessee, to Marion, in the same state, where he resided until within six or nine months of the filing this bill, -when he removed to an obscure part of Jackson county, in this state, with said girl and her issue, (six, or eight children,) to avoid this claim; and prays a discovery of the number and names of the issue, &c.: it charges the hire to have far exceeded the three hundred dollars and interest: it prays an answer to all these allegations ; that an account be taken; that the bill of sale be cancelled, and the negroes delivered up, &c.
The plaintiff in error, as defendant to the bill, by his answer, positively denies all equity alleged; admits the conveyance, but avers the sale to have been absolute and unconditional, according to-the terms of the conveyance; he makes profert of it, and exhibits,, what he avers to be a copy, such as described by him, purporting to be absolute, and without seal. He further says, the back or white side of the bill of sale, on which there was no defeasance, became defaced by the accidental falling of the paper into some dye stuffi The bill of sale thus brought to view, purports to have been attested by Abner Lozell, as a subscribing witness. . The fact of its having been so attested, is not contested. The answer further avers, that this contract was executed not in 1807 or 1809, as charged, [63]*63but, in March, 1804, and the hill of sale, as exhibited, bears that date; shewing a lapse of twenty six years between the date of the conveyance! and the institution of this suit. The subscribing witness has not been examined, in proof of the alleged contract: his absence is in no way attempted to be accounted fot; nor is any manner of excuse offered, why his depositions were not taken in proof of the alleged defeasance. The contents of the instrument, both the face and the back, are charged as parts of the same contract, simultaneously made; so that a subscribing witness to any part of the conveyance, must be regarded as such, in relation to the entire instrument.
The answer denies that any offer was ever made by Montgomery’s agent, or otherwise, to redteem the property : it also denies, that the defendant ever - removed for the purpose of avoiding a suit for this property ; or that his removals were secret, or to any ob■scure place.
This brief examination of the bill and answer, is sufficient to present for consideration, a question highly important in principle, and one, which we deem decisive of this case. It is, whether, in the contract between Hatfield and Hugh Montgomery, in which the bill of sale was given, there was any valid agreement for the right to redeem or repurchase the iiegro girl ? If we are warranted in determining there was any, we must conclude there was one substantially such as charged in the bill.
This, as well as all other facts, must depend on the weight of competent evidence. Then what is the' •amount of such evidence? The testimony of Hugh Montgomery must be rejected as that of an incompetent witness, for'reasons presently to be stated.
■ The evidence of the other witnesses, is vague and conflicting, as respects the existence of any such de-[64]*64feasance : so that, if there were no legal objection applying to all the testimony on this point, it is questionable il‘ it could be considered tantamount to two positive witnesses, cr one and pregnant circumstances, in disproof of the defendants’ absolute denial of any defeasance — a matter clearly within his knowledge, and responsive to the allegation of the bill. Nothing .short of this will satisfy the rule of chancery, in this respect. But we are unavoidably led to the inquiry, whether any of the proof offered, on this point, can ■b,e regarded as evidence, while the subscribing witness remains unexamined; and while no foundation has been laid for the introduction of the secondary evidence 1 And is not this an additional objection to Montgomery’s testimony ?
It is true, as contended in argument, that in the case of Hall vs. Phelps,
The case last reviewed, and those referred to, I think, establish the principle conclusively, that if the rule can be relaxed, (of which I express no opinion,-)' ■it can only be in cases of negotiable securities, for the benefit of commerce. The defeasance in question, ■if one -ever existed, being like the body of the instrument, in the nature of a conveyance of property, must require the same grade of proof, whether the instrument be indorsed or not. Had the entire contract, or the defeasance alone been by parol, then this rule of evidence, (as in the case of English vs. Lane,b of the present term,) could have hadnoap-plication to the case, because it could not have appeared that the parties had in the more solemn manner, agreed to rest the entire contract on written evidence, and to rely on the particular knowledge, or general intelligence and veracity of a designated individual, to prove the agreement.
In the case of Rinaldi vs. Rives,c it was held that where there is written evidence in the power of the party to procure, parol evidence of the confession or admission of the adverse party, respecting the existence and contents of the instrument, is inadmissible as evidence; that the latter is an inferior grade of testimony. The analagous principle follows, that if an attested instrument has been lost or destroyed, the [67]*67party claiming the benefit of it must establish the contents by the subscribing witness, if his evidence can be procured, if not, he must remove the suspicion which otherwise arises from its absence, by laying the usual foundation for secondary proof The late decision of this Court, in the case of Robinson's adm’r vs. Burnett, maintains the same principle, shews the sacred character of this description of evidence, and that it cannot be dispensed with, when practicable to be obtained; and that the purely voluntary act of the adversary, cannot deprive a party of the benefit of it..
The same principle is strongly maintained, especially in reference to deeds and other instruments intended to have the same effect, by Starkie in his Treaties on Evidence.a He says “If the deed or instrument produced purport to have been attested by one or more witnesses, whose names are subscribed, the party must call at least one of the witnesses; and in cases where the instrument labors under any doubt or suspicion, he ought to call them all: that the law requires the testimony of the subscribing witness, because the parties, by selecting him as the witness, have mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of the circumstances which took place; because he knows those facts which are probably unknown to others. “ So rigid,” says he., “ is this rule, that it is not superseded in the case of a deed, by any admission or acknowledgment of the execution by the party himself, whether the action be brought against the obligor himself, or against his assignees-after his bankrupty, nor by any admission of the execution made by the defendant in his answer to.a bill in equity,” in a different suit:— That, “ the rule applies, whether the question be between the parties to the deed, or strangers;-whether-the deed be the foundation of the action, or but coh [68]*68‘k^er8E or "whether it still exists or has been cancell-ed; and though the issue be directed by a Court of Equity, to try the date, not the existence of the deed.a
The recent adjudication, in Henry & Emott vs. Bishop,b is as strong a case as can be imagined to test the principle. The action was covenant. One whose-name appeared' as a subscribing witness to the' cove--hant, (which also contained the names of two other' Subscribing witnesses,) was introduced to prove the execution. He testified that he saw the two other witnesses subscribe itthat he executed it as attorney forthe- plaintiff;; and that the instrument ever since its date had been in his possession -r and that, after the- period for the performance, the defendant stated -to- him his inability to comply with the contract,, and requested that -the plaintiff would release him.. But this witness farther stated, that he did not subscribe his name- as a witness at the execution of the instrument, but that he had done so since the trial had been called on.. The Supreme Court there.held’,, thát, as it did not appear but that the subscribing witness might have been, produced, and the witness offered could not be viewed as such, not having attested the instrument at the time of its execution, his evidence could not be received. In that case, it will be noticed, there could have been no difficulty respecting the 'identity of the instrument ;■ yet the testimony was rejected, because the witness-offered was'not one-of those selected by the parties, to mate the proof and explain the circumstances. It is also1 worthy of remark, that this latter decision was by the- sanie- Court, and twenty years later than in Hall vs. Phelps, which has been referred to as an authority on the part of the defendant in error.
On the particular point, of Montgomery’s general competency as a witness for these complainants, the [69]*69case of Roberts vs. Anderson,a is a strong authority against it. There the principle was ruled, that one who is charged to have fraudulently acquired title to land, and fraudulently conveyed it, though by a mere quit claim deed, without covenants, is incompetent as a witness for his grantee, in a suit brought against him by a person claiming it as a bona fide purchaser. Here, the question of fraud by Montgomery, as well as by Hatfield, was in issue; and it does not even appear that Montgomery’s was only a quit claim conveyance to the complainants — consequently, on this ground also, he was incompetent to prove the deed. But if these objections to the competency and certainty of the complainants’ evidence could be overcome, when the great lapse of time is considered, I should be constrained to say, the circumstances do not establish the right of redemption, as in case of a mortgage. In Conway's ex. vs. Alexander,b Chief Justice Marshall, in delivering the opinion of the Court, illustrates this subject very satisfactorily. He maintains the unquestionable right of all persons laboring under no legal disability, to stipulate contracts either in the nature of mortgages, or conditional sales, and sustains the validity of either, according to such stipulations, and the true intent of the parties. The contrary principle, he says, would transfer to the Court of Chancery, the guardianship of adults, as well as of infants ; and to sustain a sale with a reservation to the vendor of the right to repurchase the same property at a fixed price, and at a specified time, does not conflict with either the letter or the policy of the law. But, that the policy of the law does prohibit the conversion of a real mortgage into a sale, is clearly conceded: and in doubtful cases, the leaning of all the Courts has been against conditional sales, and in favor of mortgages, as the only effectual means of protecting borrowers of money. [70]*70In the same case, it is said, that, as conditional sales, if really intended, are valid, the inquiry in every such case must be, whether the contract in the specific case was intended, as a security for the repayment of money or an actual sale ; that the form of the deed in questions of this nature, is not conclusive either way — that “the want of a covenant to repay the money is not complete evidence, but is a circumstance of no inconsiderable importance. If the-vendee must be restrained to his principal and interest, that principal and interest ought to be secured’ The Chief Justice also remarked, that the adequacy of the price is a highly important consideration in determining whether a contract was intended as a mortgage or conditional sale.- (See also, Chapman's adm'r vs. Turner.)a
In the case before us, it appears that the girl was only about nine years of age, and there is not a scintilla of proof that the three hundred dollars paid, was not the full value of the slave ; the answer avers it to have been considerably more. Let it also be remembered, that the bill does not simply charge a contract of mortgage; the allegation is, that Hatfield agreed to allow Montgomery the privilege of redeeming or repurchasing, said girl. Then, if without proof, the truth of the allegation be admitted, surely it could not be contended, that an agreement to repurchase at a subsequent undefined period, but in contemplation doubtless, of only a few years, could entitle the party or his assignee to this privilege, after the lapse of twenty or thirty years. If the evidence clearly disclosed the true intention of the contract, the reasonableness of it could have little or no influence on our deliberations. Our province would only be, to enforce the contract according to the agreement; or if the intention wras incompatible with the law, to en[71]*71force the contract according to its legal effect, if any it had. But here, the intention not being thus manifest, it is proper we should consider the motives which ■could have induced the contract. Then, can any rational motive be imagined, why Hatfield should have taken a slave nine years of age; have advanced an amount of money equal to her fall nakle, if not more $ made himself responsible for her hire when of any •use, and at any rate responsible for a restoration of the girl, with her increase, if any, at the expiration of the twenty six years that have elapsed, or even one fourth of that time, on the re-payment ' of the three hundred dollars, and interest thereon. The probability cf such a contract, is farther excluded by the fact, that no security was taken for the money, when Montgomery’s circumstances appear to have' been very doubtful; even his personal responsibility does not appear to have been contracted. Had the slave died, the loss must have been Hatfield’s; if to live and increase, such a contract, in the time that has elapsed, must deprive him of all the negroes, and thereby affect his interest to the amount of about sixteen hundred dollars, when an absolute purchase of the same slave, or another of the like description, Would have secured all without the least responsibility. • Before we can conclude that a valid contract ■of this kind exists, we should require clear and satisfactory evidence of it; and that the complainants had strictly entitled themelves to this advantage. But, as has already been shewn, the complainants, after this long term of time, have not produced to the Court the best evidence the case admits of, or given any excuse for not doing so. Another consideration weighing strongly against the probability that a mortgage was intended, is the further fact,' alleged by the coiu-plaijiants themselves, that Montgomery, while deli[72]*72vering .up to Hatfield the possession of the negro, with an absolute bill of sale for the same, should not, have taken into his own keeping a seperate defeasance, instead of relying, as he says he did, on an in-dorsement on the conveyance, to be kept by Hatfield.
The argument of counsel, has involved in this case another question, which, under different circumstances, would require grave consideration. It is, whether" the lapse of time between the execution of this contract, and the institution of the suit (being twenty six years) operates as a bar to the relief sought ? and if it would, in the absence of any subsequent acknowledgment on the part of Hatfield, have the complainants established sufficient acknowledgments to avoid this bar ? Was it not further necessary, that they should have disclosed in their bill any circumstances which could excuse the delay ?
After the views already taken of the case, in other respects, I will content myself with a brief notice of these questions. It must be borne in mind, that the defendant, by his answer, as by statute he might, has demurred to the relief sought; and also pleaded in bar the limitation of time, and that the demand is stale.
The counsel for the complainants contend, that, to relief against fraud, as here charged, there is no limitation; and that this is a mortgage of that description, which allows to complainants the period of the mortgagors’ life-time to redeem in. I concede, that in .equity a mortgage is regarded as a mere security for a debt; that while it continues a subsisting mortgage, and until foreclosure, the mortgagor continues the real owner of the mortgaged property; and that in a court of law, except as to the mortgagee, the principle is the same: also, that as a general rule, that which is once a mortgage, continues such until the [73]*73object be effected. This doctrine is declared more particularly in reference to real estate, but as a general rule, I consider it also applicable to personal property. It does not, however, follow, that if fraud has been practised, the adverse party has unlimited time for the prosecution of his rights, after his knowledge of the existence of those rights, and of the fraud committed ; or, that in case of a mortgage, more than any other deeds, that the law will not presume payment or a discharge of the equity, after an unreasonable lapse of time.
An authority, on which both parties appear willing to rely, in reference to this point, is Haddock’s Chancery,a There it is said, that the statute of limitations cannot be pleaded to a bill for the discovery merely offraud, length of time forming no bar. That, “no length of time,” as Lord Ershine more than once emphatically observed, “ can prevent the unkennelling of fraud.” Lord Notingham also remarked, that, “no delay could purge a fraud; that every delay arising from it, adds to its injustice, and multiplies the oppression.” Haddock, however, in immediate connection with the above quotations of these distinguished Chancellors, and on their authority and that of others, continues, by saying, “ Where the fraud was committed a considerable time back, the bill ought to state,' that it roas discovered within six years before the bill was filed; or a waiver of the objection as to length of time should appear on the face of the proceedings; length of time always forming a strong objection, where it can be used to shew acquiescence, but in no other way : that “ though persons are embarrassed, and reduced by the fraud of others, yet the Courts cannot act upon such circumstances, for then there would be an end of all limitations of actions in the case of distressed persons ; for if relief might be giv[74]*74en after twenty years, on the ground of -such distress* it may after thirty, forty, or fifty years.
In the case of Hovenden vs. Lord Annesley,a the subject of fraud and of limitations in chancery is ex? amined at great length ; and the principle is maintained, that even in cases of fraud* the right must be prosecuted in a reasonable time after the discovery of the facts constituting fraud. The Lord Chancellor remarks* that the question as to the simple effect of the lapse of time, is very material: he quotes, with approbation, the old maxim of the law, Vigilaniibus non dormientibas servio lex. Again, he remarks, that it is said Courts of Equity are not within the statute of limitations : this is admitted in one respect ■ “they are not within the words of the statute, because the words apply to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered:” I think it a mistake, in point of language, to say that Courts of Equity act merely by analogy to the statutes i they act in obedience to them. The statute of limitations, applying relief to certain legal remedies — for recovering the possession of lands, for recovering of debts, •&c.: Equity, which in all cases follows the law* acts on legal titles, and legal demands, according to matters of conscience which arise, and which do not admit of the ordinary legal remedies; nevertheless, in thus administering according to the means afford-ed by a Court of Equity, it follows the law.
The case of Shelby’s heirs vs. Shelby's heirs,b maintains fully the principle, that the statute of limitations will be a.bar to any relief sought in Equity, if it be a case where relief could have been given at law ; also, that it will run against fraud. In respect to fraud, this exception is admitted, “ that where it has been secretly practised, the statute'will not be a bar; [75]*75but it is necessary in sucli case, to aver in the bill, that the fraud was not discovered within three years before the institution of the suit; and the complainant must shew, at least from circumstances, that he could not well be supposed to have known that he was defrauded at an early period; otherwise this part of the bill will be considered unsupported.” An authority,a particularly relied on by the complainant’s counsel, on this point, has reference to a case where a mortgage on land had lam dormant twenty years, and it was considered that the lapse of time was sufficient to afford a presumption of payment; but that this period was only a circumstance on which to found a presumption, and not in itself a bar. In that case, it was held, that the report of the state officers, by order of the Senate, on the petition of the occupants of the premises, that the mortgage was outstanding, and which also ascertained the balance due on the mortgage, was sufficient to repel the presumption of payment; especially when connected with the circumstance, that the premises remained uncultivated, and a forest until within six or eight years of the time when the claim was asserted.-Vide Jackson vs. Pierce.b In that case it is shewn, that the agents of the state had formally and solemnly acknowledged the existence of the mortgage, and the balance due upon it. The subject of that litigation was real estate, when of this it is personal; and in this, the lapse of time exceeded that (after deducting for the revolutionary war,) not less than five or six years. In this caso •also, if all the evidence taken, could be regarded as-, competent, it would fall short of the other, in respect, to the nature and extent of the acknowledgments. The same author, on the same page, cites other ad-, judged principles, which have a more direct application to the case before us : thus, where there has beeui [76]*76no foreclosure, nor entry on the land by the- mortgagor, nor interest paid within twenty years, the mortgage is not regarded as a subsisting title.a Again-a poggeggion of the mortgagee of a slave fox twenty-two years, unaccompanied with any act or acknowledgment, recognizing a mortgage, is a bar to the equity of redemption.b He further says, that in determining whether the equity of redemption is gone, the time is to be computed from the last period at which the parties treated the transaction as a mortgaged.c
In Marks vs. Pell,d a bill was filed for- an account, and for- a re-conveyance thirty years- after the deed alleged to have been a mortgage- was given, during all which time-the defendant had been in possession. It was there held, (the subject being real estate,) that parol evidence of the mere confessions of the defendant, made seventeen years after- the deed, that it was taken as a security for a- debt, was insufficient to entitle the plaintiff to relief; that the claim had become too stale to be thus revived.
In Kane vs. Bloodgood,e this subject was very elaborately investigated. The controversy related to bank stock. The Chancellor decreed that the statute of limitations was- a good plea in equity, as well as at law r that those trusts which are mere creatures of a court of equity, and not within the cognizance of ■a' court of law, are not within the statute of limitations; that so long- as there is a continuing and subsisting trust, acknowledged and acted on by the parties, the statute does, not apply :■ but that, if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period, may constitute a bar in equity :• and that other trusts, which are the ground of an action at law» are not exempt from the operation of the statute.
The Supreme Court of the United States, in Bell [77]*77vs. Morrison, et al,a pronounces the statute of limitations to be a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time; but to afford security against stale demands, after the true state of the transaction may have been forgotten, or become incapable^ of explanation, by reason of the death or removal of witnesses ; that, therefore, instead of-being viewed- in an unfavorable light, as an unjust and discreditable defence, it should have-received such support from the courts of justice, as would have made it what it was intended emphatically to be, a statute of repose. The principle was there also recognised, that if the bar of the statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and to be in terms unequivocal and determinate ; and if any conditions are annexed, they ought to be shewn to have been performed.
Now, consistently with the established principles of law, which have been reviewed, and which are considered more than sufficient on the present occasion, it is impossible the complainants can obtain the relief sought upon what appear to be- the facts of the case.
After what has been said, it is unnecessary to notice more particularly any of the complainants’ evidence, except that of the witness Campbell, who is regarded as highly reputable, and whose testimony relating to the alleged tender of the money, is free from all the objections stated in relation to the other proofs relied upon. It is in substance, that between seventeen and twenty years prior to the institution of this suit, he, as attorney of H. Montgomery, demanded the negro in question, with her increasehe is under the impression that he told Hatfield he had the [78]*78amount of money which had been advanced; he does not recollect telling him he would pay the amount of money due, and interest, but that he said to him he was authorised to pay whatever might be due on settlement, andwould have done so on settlement and delivery of the negroes; but that Hatfield refused to receive the money, saying the negroes were not in his possession also stating that he had a good title to them.. The effect of this evidence, whether proof of a legal ten-del' or not, (and concerning which I do not stop to inquire,) is unequivocal and conclusive proof that Hatfield, at that time disavowed the existence of any mortgage or other trust, and openly professed to hold adversely to the claim now attempted to be established.
Thus it appears, that after the lapse of six or eight years from the contract, Hatfield denied to Montgomery’s agent, which implies full knoudedge to the principal, the existence of any defeasance, or any right of redemption ;• that then there was a farther lapse of say eighteen years, during which this claim was suffered to lie dormant;, while Hatfield continued in the peaceable enjoyment of the property. What period short of that which has intervened in this case, would be considered sufficient to bar a claim of this description, is a question of intrinsic difficulty ; therefore, no, definite opinion is expressed upon it. But we have no-hesitation in saying, a period far short of that which has occurred, is amply sufficient; and that it would be so after deducting all the time that coxdd be claimed in consequence of Hatfield’s removals, as charged';- if' such deduction be, on principle allowable.
Then, on this ground, and the absence- of competent proof that a defeasance ever existed, we are of opinion the decree of the Court below must be reversed, and the complainants bill dismissed..
2 Johns. Rep. 451.