Madison v. Grant

29 Ky. 641, 6 J.J. Marsh. 641, 1831 Ky. LEXIS 293

• Court: Court of Appeals of Kentucky
• Decided: October 31, 1831
• Status: Published

Opinion

Chief Justice Robertson

delivered the opinion of the court.

On a bill filed by Grant vs. Madison for the foreclosure of a mortgage on a slave, the cir-' cult court decreed peremptorily, on the hearing of the case, that Madison should pay to Grant the sum supposed to be due, and that execution might issue there-i0r*

The decreeis certainly erroneous. As theappellee proceeded inrem,the circuitcourthad no other power than to decree a simple foreclosure of the equity of redemption, whereby the title to the slave would have been vested irrevocably in the mortgagee, or to direct a sale of the slave for the purpose of making the amount due on the mortgage, unless on or before a day given in a nisi decree for that purpose, the mortgagor had paid it: The bill sought nothing else; and the court had no jurisdiction over the case for any other purpose.

Ewing, for appellant.

The decree also seems to be for a larger sum than appeared to be due. The use of the slave by the mortgagee for a year, should at least, extinguish the interest on the money for that year. The appellee alleges, in his bill, that he agreed to pay and did pay $20 for the hire of the slave. The appellant says that the slave worked for the interest of the money: $20 exceeded the legal interest; and there is no proof that the appellant ever paid any thing for the use of the slave. Wherefore, the utmost that he could be entitled to would be the principal sum due with interest commencing at the time when the slave was restored to the appellant.

Decree reversed, and the cause remanded for such further proceedings and decree as, according to this opiuion, shall be proper.