Merrill v. Dawson

17 F. Cas. 86, 1846 U.S. App. LEXIS 540

• Court: U.S. Circuit Court for the District of Arkansas
• Decided: October 12, 1846
• Status: Published

Opinion

JOHNSON, District Judge.

The first exception points to the omission of the name of James L. Dawson, as one of the defendants, in the caption of the depositions of Trap-nail, Dorris, Walker, White, Bogy, and Hammett; but his name appears as a defendant in the order of the court appointing commissioners, in the notices served on the defendants, in the caption of the interrogatories which were filed and attached to, and issued with, the commission, in the commission which issued under ■ the authority of this court, and in the oath of the commissioners to execute the same. The commissioner states, in the caption of the depositions, that they were taken in pursuance of said commission and interrogatories, in each of which the names of all the defendants are fully stated. Under these circumstances, it cannot, in my judgment, be said, that the depositions do not appear to be taken in this case, and this exception is overruled. [Keene v. Meade] 3 Pet. [28 U. S.] 6.

The second exception is, that notice of filing interrogatories, and the time and place of taking such depositions, was not given to Roane, Badgett, Taylor, and Fowler. The notice was served on Taylor, Roane, and Fowler, by delivering to each of thfem a true copy of the notice, and on Badgett and Fish, by leaving a true copy of the notice with a white member of the family, and on Dawson and Baylor by delivering a true copy to their counsel, they not being residents of this dis-triet. This, in my opinion, is a good service of the notice. By the 13th rule of practice for the courts of equity of the United States, the service of a subpoena may be made by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some free white person who is a member or resident in the family. If this be a sufficient service of a subpoena to notify the defendant of the suit, it ought to be considered sufficient service of a notice in any subsequent proceeding in the cause. This exception is also overruled. The third exception is in these words: “Only a part of the interrogatories of said ccmplainant were propounded to and answered by, each of said witnesses.” Not having arrived at any satisfactory conclusion upon this exception, in the absence of the presiding judge, a decision upon it will be deferred to the next term of this court The fourth exception is, “that the deposition of Henry D. Mandeville, taken at Natchez, on the 8th of March, 1845, was taken without any sufficient notice having been served on said defendants, of the time and place of taking the same.” The answer to this exception is, that where the deposition is taken according to the acts of congress, at a greater distance from the place of trial than one hundred miles, no notice is required. By the certificate of the magistrate before whom the deposition was taken, it appears that the witness lives more than one hundred miles from this place. That his certificate is competent evidence of the fact, is established by the adjudication of the supreme court, in the case of the Patapsco Ins. Co. v. Southgate, 9 Pet. [34 U. S.] 617. The court say: It was sufficiently shown, at least prima facie, that the witness lived at a greater distance than one hundred miles from the place of trial. This is a fact proper for the inquiry of the officer who took the deposition, and he has certified that such is the residence of the witness.- In the case of Bell v. Morrison, 1 Pet [26 U. S.] 356, it is decided that the certificate of the magistrate is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury. This exception is overruled.

The fifth exception is to the competency of the evidence contained in the deposition of Mandeville. The decision of ‘this exception will be reserved to the final hearing.

The sixth exception is to the authority of the magistrate, before whom Mandeville’s deposition was taken. It was taken before Thomas Fletcher, “judge of the probate court, within and for the county of Adams, and state of Mississippi”; and the inquiry is, whether he is authorized by the acts of congress to take depositions. By the thirtieth section of the judiciary act of 1789 [1 Stat. 80], depositions de bene esse may be taken before any judge of a county court of any of the United States. Is Thomas Fletcher a judge of a county court of any of the United States? In order to decide this question, we must look into the laws of the state of Mississippi. That this court is bound to take notice of the laws of Mississippi, is clearly settled by the supreme court of the United States, in the case of Owings v. Hull, 9 Pet. [34 U. S.] 625. The court there held that the laws of all the states in the Union are to be judicially taken notice of, in the same manner as the laws of the United States are to be taken notice of by the circuit courts of the United States. Looking, then, into the laws of Mississippi, we find a court of probate established in each county of the state, with jurisdiction in all matters testamentary, and of administration, and of orphans’ business; in the allotment of dower, in cases of idiocy and lunacy, and of persons non compos men-tis; see section eighteen of the fourth article of the constitution, and the acts of the legislature of 1833, law 444. By the fourth section of the act it is provided, that the court of probate in each county shall provide a seal for said court, thereby constituting it a court of record. The question then is, Is this a county court? It is a court of record established in each county in the state, and styled “the probate court of the county of-.” I am clearly of opinion that it is such a county court as is contemplated by the act of congress, and that depositions may be taken before the judge thereof. The deposition of Mandeville is a deposition taken de bene esse, and may be read on the final hearing, unless the defendant shall show that the witness has removed within the reach of a subpoena after the deposition was taken, and that fact was known to the party, according to the decision of the supreme court in the case of the Patapsco Ins. Co. v. Southgate, 5 Pet. [30 U. S.] 617; Russell v. Ashley [Case No. 12,150]. This exception is therefore overruled. •

On the 3d day of June. 1847, the following opinion was given on the exceptions to depositions previously filed:

At the last term the defendant’s second exception to the plaintiff’s depositions was overruled. The attention of the court is again called to that exception, as not having been fully considered. The notice of the time and place of taking the depositions, is insisted to be insufficient. 1 am, however, of opinion that no notice was necessary. It was an ex parte commission, in which the defendants, after, being duly notified, failed to join, by filing cross inten-oga-tories. In taking depositions under a commission, notice of the time and place of executing the commission is requisite, where the commission is a joint one. But when it is not joint, but ex parte, notice is not required. See 1 Smith, Ch. Prac. 364; 1 Newl. Ch. Prac. 262.

Upon the defendant’s third exception, no opinion was expressed at the last term. It is as follows: “Only a part of the interrogatories of said complainant were propounded to, and answered by each of said witnesses, &c., they should be therefore suppressed.” I am now satisfied that this exception is not well taken. The commission for taking these depositions, is not a joint, but an ex parte, commission in which the defendants failed to join; and it is only in cases of a joint commission that it becomes necessary that all the interrogatories should be propounded. Where the commission is ex parte,. the party refusing' or failing to join it, would not be permitted to put any interrogatory to the witness, although he might be present at the examination. In such a case it is not incumbent on the person- taking the deposition to cause all his interrogatories to be propounded to the witness. He is at liberty to put as many or as few of them as he thinks proper, with the exception of the last interrogatory, which must be put. This is the settled practice in the high court of chancery in England. See Newl. Ch. Prac. 267. Exception overruled.

On the 23d of August, 1847, the cause came on for hearing, and the court delivered the following opinion:

This is a bill in chancery, filed by Merrill, for the foreclosure of a mortgage of sundry slaves, executed to him by the defendant, James L. Dawson; and from the bill, answers, and evidence in the cause, the material facts appear to be as follows: That on the ilth of April, 1837, one N. L. Williams made his promissory note to the defendant Dawson, for the sum of $11,428.22, payable two years after date, and negotiable at the Planters’ Bank of Mississippi at Natchez; and on the 1st June, 1837, said Williams executed to said Dawson a like promissory note for the sum of $1,150, payable twelve months after date; and said Dawson, being desirous of raising money on said notes, obtained from the complainant his indorsement upon said notes, as additional security thereto, and to secure and indemnify him against his liability thus assumed, as the surety of Dawson; the said Dawson, on the 25th of November. 1S37, executed to said Merrill a mortgage upon sundry slaves therein named and described, the condition of which said mortgage was, that “if the said Dawson shall pay to said Merrill the sum of $12,578.22 (the amount of said two promissory notes), on the day the said notes shall become due, then the said indenture to be void.” That on the 29th day of December, 1837, the said mortgage was recorded in the recorder’s office in Jefferson county in this state, without acknowledgment or proof of its execution, except before a judge of the state of Mississippi. That the slaves named and described by the said mortgage were in the said county of Jefferson, on the plantation of Dawson, where he resided; and so remained in his possession until the 11th day of October, 1841, when all of them, except those claimed by the defendant, Sophia M. Baylor, were sold by the sheriff of Jefferson county, upon judgments and executions against the said Dawson; at which sale the defendants purchased, and received possession of a part thereof. That on the 28th day of November, 1837, the said Dawson presented said notes to said Planters’ Bank, and by the discount thereof obtained the money to become due by said notes; that when the said notes became due and payable, neither the said Dawson nor the said Williams ever paid any part thereof, but suffered them to remain wholly unpaid until the 4th day of March, 1842, when the complainant, as the indorser thereof, paid the full amount of principal and interest due by said notes. Dawson, in his answer, admits all the material allegations in the complainant’s bill. The defendant, Sophia M. Baylor, claims the following slaves, embraced in the mortgage, namely, Dick, Beverly, Lucas, Porter, and William, as her own property at the time the mortgage was executed by Dawson, who admits, in his answer, that he had only conditionally bought them of her, which condition he was unable to perform, so as to get a title to said slaves. From an examination of the evidence in the cause, I am satisfied that these five slaves were the property of Mrs. Sophia M. Baylor, and that Dawson had no right to mortgage or otherwise dispose of them. The bill, therefore, as to the defendant .Baylor, will be dismissed. The remaining defendants allege, in their answers, the mortgage set up by Merrill, the complainant, is as to them fraudulent and void, not having been made upon a good and valuable consideration, and bóna fide, but with the intent to defraud the creditors and purchasers of Dawson; that it never was legally recorded; that the possession of the slaves did not accompany and follow the mortgage, but remained and continued with Dawson, the mortgagor, arter the mortgage is alleged to have been made, and never were in the possession of Merrill, and is therefore fraudulent and void.

The exceptions to the mortgage I will proceed to consider; and, first, as to the registry or recording of the mortgage. Previous to the enactment of the Revised Statutes of this state, which took effect and went into operation by the governor’s proclamation of the 19th March, 1S39, there existed no law or statute requiring mortgages of personal property, made on consideration deemed good or valuable in law, to be recorded. The statute concerning conveyances (Steel & M. Dig. 131) relates solely to deeds, conveyances, bonds, and other obligations for lands, tenements, and hereditaments, and contains no provision whatever relating to deeds, conveyances, or mortgages of personal property. The Statute of Frauds (Id. 2G7) contains the following provisions: “And moreover, if any conveyance be of goods, chattel's, and be not on consideration deemed good or valuable in law, it shall be taken to be fraudulent within this act. unless the same be by will duly proved and recorded, or by deed in writing acknowledged or proved by the witnesses in the office of the clerk of the superior court of this territory, the clerks of the circuit courts, or before any justice of the peace or other competent authority within the county wherein one of the parties lives, within three months after the execution thereof, or unless possession shall really and bona fide accompany the gift or conveyance; and in like manner, where any goods or chattels shall have been pretended to have been loaned to any person with whom, or, claiming under him, in whose possession (they) shall have remained for the space of five years without demand made ana pursued by due process of law. on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of any use of property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken as to creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation, or limitation, or' use of property were declared by will or deed in writing, proved and recorded as aforesaid, and even then the creditors or purchasers may show actual fraud; and on such fraud being established, every such gift, contract, sale, loan, or possession shall be set aside in favor of such creditors or purchasers; and the provisions of this section shall also be extended to subsequent creditors after such pretended gift, sale, contract, loan, or conveyance.” The second section of this act' expressly provides, that “this act shall not extend to any estate or interest in any lands, tenements, or hereditaments, goods or chattels, which shall be upon good or valuable consideration, and bona fide and lawfully conveyed as aforesaid, nor to any person or persons who may be subsequent purchasers for bona fide considerations without notice.” It is manifest, then, that the Statute of Frauds (which is only declarations of the common law), does not extend to the mortgage in this case, nor embrace it in any of its provisions, provided it was made upon a valuable consideration and bona fide; and if it were not, then it is inoperative and void, independent of the statute. But although mortgagees of personal property were not required to have their mortgages recorded, yet they were allowed and permitted to have them recorded if they deemed it expedient. This I infer from the following provisions, under the heads in the above digest of “Recorder” and “Mortgages.” The first section under the head “Recorder” provides that there shall be an office of recorder in each and every district or county, which shall be called and styled “the recorder’s office;” and the recorder shall duly attend the service of the same, and provide well bound books, wherein he shall record all deeds and conveyances which shall be brought to him for that purpose, according to the true intent and meaning of this act. The first section under the head of “Mortgages” provides, that every mortgagee of any real or personal estate in this district (territory), having received full satisfaction and payment of all sum or sums of money as are really due him by such mortgage, shall, at the request of the mortgagor, enter satisfaction upon the margin of the record of such mortgage recorded in the said recorder’s office, which shall for ever after discharge, defeat, and release the same. From these provisions, it can hardly admit of doubt, that mortgagees were entitled to have their mortgages recorded in the recorder’s office; for unless they were recorded, how is it possible that the entry of satisfaction could be made upon the margin of the record of such mortgage? The statutes are silent as to the acknowledgment or proof of the execution of the mortgage before it shall be admitted to record, but expressly requires the recorder to record all deeds and conveyances which shall be brought to him for that purpose; neither do the statutes declare that the registry of a deed or mortgage of personal estate shall operate as notice to creditors or purchasers; and in the absence of such a provision, I do not feel warranted in giving to it such a construction. The mortgage, then, in the present ease, was properly admitted to record in the recorder’s office, in Jefferson county, without requiring acknowledgment or proof of its execution. The acknowledgment before the judge in Mississippi being unauthorized by law. is to be considered as null and void. It stands, then, as a mortgage legally recorded, notwithstanding the registry thereof does not operate as constructive notice to creditors and purchasers.

The next inquiry is, Whether the defendants had notice of the mortgage before they became purchasers? They claim to be bona fide purchasers at the sheriff’s sale, without notice of the complainant’s mortgage or lien upon the property. Notice of a lien or incum-brance upon property binds the purchaser, if received by him at any time before the execution of the conveyance and payment of the purchase-money, and arrests all further proceedings towards the completion of the purchase; and if persisted in, is held to be'done in fraud of the equitable incumbrance. 2 Pow. Mortg. 619; Frost v. Beekman, 1 Johns. Ch. 301. In the case of Wormly v. Wormly. 8 Wheat [21 U. S.] 449, it was said by Judge Story to be a settled rule in equity, that a purchaser without notice, to be entitled to protection, must not only be so at the time of the contract or conveyance, but at the time of the payment of the purchase-money; and in Jewett v. Palmer, 7 Johns. Ch. 68, Chancellor Kent said: “A plea of purchase for a valuable consideration without notice, must be with the money actually paid; or else, according to Lord Hardwicke, you are not hurt.” The averment must not only be that the purchaser had not notice at or before the time of the execution of the deeds, but that the purchase-money was paid before notice. There must not only be a denial of notice before the purchase, but a denial of notice before payment of the money. Even if the purchase-money be secured to be paid, yet if it be not in fact paid before notice, the plea of a purchaser for valuable consideration will be overruled. Hardingham v. Nicholls, 3 Atk. 304. There is not in the answers of the defendants, or either of them, any denial or any thing equivalent to it, that the purchase-money was actually paid before they had notice of the mortgage. This averment is essential, and cannot be supplied by intendment in order to make the plea available. The defendants, then, have not placed themselves in the attitude to call for proof on the part of the complainant, that they really and in fact had notice. But admitting their denial of notice to be full and complete, the evidence in the cause conclusively establishes the fact that they and each of them had actual notice of the mortgage before they made the purchase. The defendants Roane and Taylor admit that they saw the record .of the mortgage in the recorder’s office, before they purchased, but believed it to be fraudulent and made merely for effect The defendant Fish says, in his answer, “this respondent thinks there was no general notoriety on the subject of this mortgage, as he never heard it spoken of but once before he purchased one of said negroes, and then it was said to be fraudulent by the persons speaking of it.”

These admissions are amply sufficient to charge these defendants with notice of the mortgage. But by adverting to the depositions taken in this case, it will be seen that actual notice of the mortgage is conclusively proved against each of the defendants before the sale was made by the sheriff. Martin W. Dorris, in his deposition, says, “I believe that F. W. Trapnall proclaimed the existence of said complainant’s incumbrance, and forbid the sale; and that Samuel C. Roane, Samuel Taylor, N. H. Fish, and Col. Fowler, were present in hearing of such proclamation; and that he heard Samuel Taylor say since the said sale that he was aware of the existence of said mortgage.” Robert W. Walker in his deposition, says, “I know that said record book B. was lying open at page 174, in the clerk’s office of said county, on the morning of said sale, subject to inspection, and that Absalom Fowler, in person, examined said record book, and inspected said deed of mortgage. I believe that it was generally known and spoken of at the sale by those present, that the complainant Merrill had a mortgage on the negroes.” Drew White says, that he, as deputy sheriff, sold the negroes in contest, and that when said sale was about to commence, he proclaimed, in the presence and hearing of said Roane, Taylor, Fowler, and Fish, that said negroes would be sold subject to all incumbrances, without reference.to any particular incumbrance. He further states, that.F. W. Trapnall did forbid the sale of said negroes on behalf, he thought, of William Dawson. Ignace Bogy states, that “at the time said slaves of Dawson were sold by the sheriff of Jefferson county, X heard F. W. Trapnall, Esq., in an audible voice, forbid the sale of them, at the time when they were offered for sale, at the instance of some person whose name I do not now recollect; and said defendants, Roane, Taylor, Fish, Bad-gett, and Fowler, were present at the time, but as I did not have their ears, I cannot say that they also heard him.” John J. Hammett, sheriff of Jefferson county, who made the sale, states, “that it was generally understood and spoken of by those present at said sale of said negroes, that said complainant Merrill had a mortgage upon them. I believe said Trapnall did, on behalf of one William Dawson, forbid publicly, the sale of said negroes. I believe that said defendants were all present at that time; and that when about to commence the sale of said negroes, I, as sheriff as aforesaid, proclaimed publicly and audibly, in the hearing of all present, and notified all persons that I offered said negroes for sale subject to all incumbrances, and that I would convey to the purchasers of said negroes the interest and title of said Dawson only; and that there were some three or four mortgages recorded in the clerk’s office upon said negroes, to which mortgages I referred all persons present, and requested them to go into the clerk’s office and examine for themselves before purchasing; and I believe that said defendants Roane, Taylor, Fowler, Fish, and Badgett were all present and heard such proclamation.” Frederick W. Trapnall states: “I was present at the sale of the negroes of J. L. Dawson, at the October term of the circuit court of Jefferson county, in 1841, and at the request of Dawson at the time the sale was about to take place, I proclaimed in a loud voice that the negroes then offered for sale by the sheriff were embraced in a deed of mortgage, made by him to A. P. Merrill, which was then of record in' Jefferson county, which was then unsatisfied, and I therefore forbid the sale. My impression is, that Absalom Fowler, Samuel O. Roane, Samuel Taylor, Nathaniel H. Fish, and Noah H. Badgett, defendants in this suit, were present on that occasion, and were within hearing of my voice. Badgett was standing by me at the time, and heard my proclamation; a good .deal of conversation took place upon the subject. The sheriff then proclaimed that the negroes had been appraised, and would be sold subject to it.”

The evidence just recited is, in my judgment, amply sufficient to charge the defendants with actual notice of the mortgage under which the complainant claims; the proof is too clear, direct, and positive, to admit of any reasonable doubt.

The remaining inquiry is, Whether the mortgage in this case was made upon a good and valuable consideration, and bona fide, or with the design and intention of defrauding the creditors and purchasers of Dawson. The main ground relied upon by the defendants’ counsel is, that the possession of the slaves did not accompany and follow the mortgage, but was retained by the mortgagor, and this circumstance is insisted to be conclusive and untraversable evidence of fraud; but that, if not conclusive evidence, at least a strong badge of fraud, sufficient, in this case, to render the mortgage inoperative and void against the defendants. A bill of sale absolute upon its face, made by a person who still continues in possession of the property, has been held both in England and in this country, by the highest tribunals, to be, per se, fraudulent as to the creditors and subsequent purchasers of the person so retaining possession. This doctrine received the sanction of the supreme court of the United States in the case of Hamilton v. Russell, 1 Cranch [5 U. S.] 309. The fact of possession not accompanying such a bill of sale, is considered conclusive evidence of a fraudulent intent, and as to creditors and purchasers the bill of sale is, in a judgment of law, fraudulent and void; but the continuance of possession by a mortgagor is not considered as having the same conclusive and vitiating effect upon the mortgage. There is an essential difference between the effect of a possession retained by the maker of an absolute bill of sale, and the possession retained by the maker of a mortgage. The object of the one is to pass the absolute right of property, and the object of the other is to give a security defeasible upon a particular contingency; the possession in the former case is utterly incompatible with the deed; whereas, in the latter case, there exists no such incompatibility. Whilst, therefore, the possession in the former case may be correctly said to form the conclusive and untraversable evidence of fraudulent intent, and under the deed, per se, fraudulent, such cannot be admitted to be the effect of the possession in the latter case. Possession by the mortgagor before forfeiture cannot be construed to be fraudulent, because it is consistent with the title, that not vesting until forfeiture. Nor can the continuation of the possession, after a breach of the condition, of itself, unconnected with any other circumstance of lapse of time, or the conduct of the mortgagee, be considered as a strong badge of fraud. The deed is still a mortgage; the right of the mortgagee is still contingent and collateral, and the possession of the mortgagor is not necessarily inconsistent with the title.

The utmosl extent to which the authority of the decision can be carried, is that the tribunal, whose province it is to decide the facts, may infer a fraudulent intent, from the fact of possession remaining in the mortgagor. But this inference may be dispelled by the proof of other facts showing the transaction to be fair and bona fide. McGowan v. Hoy, 5 Litt. (Ky.) 240, and the authorities there cited; Head v. Ward, 1 J. J. Marsh. 280. See. the case of U. S. v. Hooe, 3 Cranch [7 U. S.] 73; also, Wheeler v. Sumner [Case No. 17,501]; D’Wolf v. Harris, [Id. 4,221]; Maples v. Maples, Rice, Eq. 300; Fishburne v. Kunhardt, 2 Speer, 564; Gist v. Pressley, 2 Hill, Eq. 318; 2 N. H. 15, 547; Smith v. Acker, 23 Wend. 653.

Are there any other marks or badges of fraud in the present case? From all the facts and circumstances connected with the mortgage, independent of the declaration of Dawson after he made the mortgage • (and they are clearly incompetent evidence), .1 have seen nothing from which an inference of fraud and collusion can be deduced. The execution of the mortgage by Dawson, and his indorsement of the two promissory notes, is established by Dorris and Hammett, who prove his handwriting; and the indorsement of the notes by Merrill, is proved by the cashier and teller of the Planters’ Bank. The discount of the notes, and the payment of the money to Dawson by the Planters’ Bank, and the payment to the bank of the notes by Merrill, on the 4th March, 1842, is established by the testimony of the same witnesses. The mortgage itself was actually recorded in the recorder’s office in Jefferson county, on the 29th December, 1837. These facts clearly prove that the mortgage was made upon a good and valuable consideration, and bona fide, and not with the design or intent to de- • fraud creditors and purchasers. Where this appears from the evidence in the cause, the inference of fraud, if any, arising from the mortgagor’s possession is dispelled, and not calculated to cast a shade upon the mortgage. •The defendants in their answers aver, that from the declaration of Dawson stating that the mortgage was merely nominal, and made only for .effect to shield his property, they regarded the mortgage as fraudulent and void. No principle of the law of evidence is better settled than that the declarations of the grantor impeaching a deed he has made, are incompetent, and cannot be received for that purpose.

The conclusion to which I have arrived from a consideration of all the circumstances of the case is, that the mortgage was made upon a valuable consideration and bona fide, is free from the taint of fraud and collusion, and that the complainant is entitled to the relief he seeks.

The ¿nquiry here arises as to the decree which ought now to be made. In the ease of Downing v. Palmateer, 1 T. B. Mon. 66, the court of appeals of Kentucky states the practice in the following terms: “The practice of the courts of equity on this subject is simple, and ought not to be departed from. Whatsoever controversies may arise about the validity of a mortgage, its forfeiture and its payment, in whole or in part, is decided upon at its first hearing, and the courts ascertain what is due, and by interlocutory decree declare that unless this sum is paid, or tendered by a particular time, the mortgage shall be foreclosed, and a sale decreed, if a sale is proper to be had. The time so given ought to expire in term time, and is sometimes, under extraordinary circumstances, lengthened by the chancellor. If, when that time expires, payment is moved with such costs as the chancellor shall adjudge, the mortgage is released, and there is an end to the controversy! “If a tender and refusal is relied on, the money is brought into court, with such costs as shall be allowed, and the party is thus permitted to redeem. If, on the contrary, neither payment nor tender is relied on (in all of which matters the court ought to adjudge), the court may decree an absolute foreclosure in many cases without sale; but if a sale is prayed for, and deemed expedient, the chancellor decrees it accordingly, and appoints his commissioners to execute it.”

The principle and practice above laid down I deem to be correct, and they will be acted upon in the present case.

Decree: This cause came on to be heard at this term, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, namely: That the bill as to the defendant, Sophia M. Baylor, be, and the same is hereby dismissed with her costs to be paid by her (to) the said complainant. And it is further ordered and decreed, that unless the sum of eighteen thousand nine hundred and thirty-four dollars shall be paid or tendered to the said complainant, or his solicitor, by the remaining defendants, or any or either of them, on or before the first day of next term of this court, they, the said defendants, are from thenceforth to stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged property in the bill mentioned, and a sale of said mortgaged property decreed, if a sale thereof shall be deemed expedient by this court. And the question of hire of the mortgaged property, of costs, and all other questions in the cause not now decided, are reserved to the further decree of this court

William Dawson, James Smith, and Garland Hardwick, having disclaimed, the bill was dismissed as to them.

On the 15th of May, 1848, the cause came on for further and final hearing, and THE COURT pronounced the following final decree: »

This day come the parties by their respective solicitors, and this cause coming on for a further and final decree in the premises, it doth satisfactorily appear to the court here, from the pleadings and proofs herein, that the indenture of mortgage mentioned in the bill was made in good faith, for a good and valuable consideration, on the 25th of November, 1837, by the said James L. Dawson, one of said defendants, to and with the said Ayres P. Merrill, the complainant, for the purpose of securing the payment by the said Dawson of the two promissory notes particularly mentioned in the said mortgage and bill of complaint, namely, one for eleven thousand four hundred and twenty-eight dollars and twenty-two cents, dated 1st of April, 1837, and due two years after the date thereof; the other for eleven hundred and fifty dollars, dated 1st of June, 1837, due twelve months after the date thereof, drawn by N. L. Williams, and payable to the. order of the said James L. Dawson at the Planters’ Bank of Mississippi at Natchez, and indorsed by said James L. Dawson, and also by the said Ayres P. Merrill, as security for said Dawson, to enable the said Dawson to obtain the discount thereof at the said Planters’ Bank, as alleged in the bill: and which said mortgage was also made, and intended to be made, to indemnify and save the said Merrill harmless in regard to his indorsement of said notes. That on the 28th of November, 1837, said bank discounted said notes for the sole and exclusive use and benefit of him, the said Dawson, and placed the proceeds to his credit on the books of the bank, and subsequent to that time paid said proceeds to him or order, and that said bank thus became the bona fide holder of said notes for a valuable consideration; that when said notes respectively became due and payable, the said N. L. Williams, as well as the said Dawson, wholly failed to pay the same to said Planters’ Bank, nor did any other person pay the same for them, nor any part thereof; and therefore the notes were duly protested for non-payment. And on the 4th day of March, in the year 1842, the said Ayres P. Merrill, by reason of the premises and as last indorser, was obliged to pay and did pay the sums of money in said promissory notes specified, together with Interests, costs, &c., up to that time, amounting in the aggregate to-fifteen thousand five hundred and ninety-three dollars and sixty-one cents, to the said Planters’ Bank of Mississippi at Natchez, and then took up the same, and became, and from thenceforward continued to be, the legal holder and owner of said notes; and that being such legal holder and owner thereof, by virtue of the payment aforesaid, he did, on the 7th day of September, 1842, commence this his suit, to avail himself of the provisions of said mortgage, and to foreclose the same. That at the making of said indenture of mortgage, the said James L. Dawson was possessed, as of his own absolute property, of certain negro slaves specified in said mortgage and bill of complaint, and then upon his plantation in the county of Jefferson and state of Arkansas, of the names and then of the ages respectively next mentioned, namely, negro man named Jim, sometimes called “Old Jim,” forty years old; Governor, twenty-two years old; Sandy, twenty-one years old; Connell, twenty years old; Tom, nineteen years old; negro woman named Phoebe, seventeen years old; Catharine, eighteen years old; Maria, sixteen years old; Mary, fifteen years old, and Eliza, eighteen years old; negro boy named Ransom, twelve years old, and Jim, sometimes called “Young Jim,” eleven years old; all of whom were likely and valuable slaves, and continued in the possession of the said James L. Dawson until the 11th of October, 1841, and were and are hereby declared subject to the mortgage debt mentioned in the pleadings. That a male infant child of said Phoebe, named Jackson; that another male infant child of said Phoebe, named Beverly; that an infant boy of said Mary, named Henry; and that an infant girl of said Maria, named Prances, bom since the making of said mortgage, as well as'such other of the issue of such mortgaged slaves, not herein specially named, as may have been bom since the making of said mortgage, ought to be, and hereby are declared to be, subject to the operation of said mortgage, and are to be sold towards discharging the said mortgage debt. That on the 11th of October, 1841, the said negro slaves, men, women, and children (excepting Beverly, bom since), having been first valued according to law by three appraisers, sworn for that puipose, were sold as the property of said James L. Dawson, under execution, at the court house door of Jefferson county, and which sale, if valid at all, was, in the opinion of the court, subject to said mortgage and to the rights of said Merrill, under and by virtue of the same; and that on that occasion the said Samuel Taylor purchased and obtained possession of • Old Jim, ‘Catharine, and Ransom; that at the same time Samuel C. Roane purchased and obtained possession of Sandy, Connell, and Young Jim; that at the same time the defendant Fish purchased and obtained possession of Governor; that at the same time the defendant, Absalom Fowler, purchased and obtained possession of Tom, Mary and her infant boy named Henry, Maria and her infant girl named Frances, Phoebe and her infant boy named Jackson, and said negro woman named Eliza. That about a week after said sale, the defendant, Noah H. Badgett, purchased of said Fowler the said negro woman Phoebe and her infant boy named Jackson, and also the said negro woman Eliza; and that said Phoebe, since her acquisition by the said Badgett, has given birth to a male infant boy named Beverly. That if any notice was necessary, the said defendants respectively, as it satisfactorily appears to the court from the pleadings, circumstances, and proofs herein, had sufficient actual notice of the existence of said mortgage, before and at said sale, to render their purchases respectively subject to it.

That upon the proof in this cause, the court is of opinion, and doth find the said negro slaves respectively to be of the following value, namely, Old Jim, five hundred dollars; Governor, eight hundred and fifty dollars; Sandy, eight hundred dollars; Connell, eight hundred dollars; Tcm, eight hundred dollars; Phoebe and her said child Jackson, one thousand dollars; Beverly, another child of said Phoebe, fifty dollars; Catharine, eight hundred dollars; Mary and her said child Henry, seven hundred and fifty dollars; Maria and her said child Frances, nine hundred dollars; Eliza, seven hundred dollars; Ransom, eight hundred dollars; Young Jim, six hundred dollars. That subpoenas in this case were served on the said Fowler on the 10th, on said Badgett on the 12th, on said Roane on the 14th, on said Tayloi on the 14th, and on the said Fish on the 15th day of September, 1842; and the court here being well satisfied that said negro slaves are insufficient to discharge said mortgage debt, and that the hire thereof, according to the rate as proved by the depositions in this cause, ougnt to be applied towards the extinguishment of said interest and principal, such hire to be estimated from the time of the service of the subpoena on said defendants respectively, up to this time.

That from the proofs in the cause, the court ’is of opinion, and doth find the value of the hire of the following negro slaves in the possession of Absalom Fowler: for Mary, seventy dollars; for Tom, one hundred dollars; for Maria, seventy dollars per annum; and for which the said Fowler is declared accountable, at the rates aforesaid, to be computed against him from the 10th day of September, 1842, when the subpoena was served upon him, and which makes an aggregate amount of thirteen hundred and fifty-eight dollars, and for which said amount decree ought to be rendered in favor of the complainant That the court is also of opinion, and doth find the value of the hire of Phoebe, in the possession of the said Noah H. Badgett, to be seventy dollars per annum, which being computed from the 12th day of September, 1842, the 'time when the subpoena was served upon him, amounts to three hundred and ninety-six dollars, which is chárgeabie against said Badgett, and for which a decree ought to be rendered in favor of the complainant. That S. H. Hempstead, Esq., the solicitor of the said complainant, produced and read in open court a certain memorandum or agreement in writing, executed in duplicate by and between the said Ayres P. Merrill, acting in that behalf through S. H. Hempstead, his attorney in fact, of the one part, and Samuel Taylor and Nathaniel H. Fish, two of said defendants, of the other, dated the 10th day of December, 1847; and also a certain other memorandum or agreement in writing, also executed in duplicate, by and between the said Ayres P. Merrill, acting in that behalf through S. H. Hempstead, his attorney in fact, of the one part, and Samuel O. Roane, one of said defendants, of the other, dated the 22d day of April, 1848; whereby it manifestly appears that the said Samuel Taylor, Nathaniel H. Fish, and Samuel C. Roane, acknowledging the right of said complainant to subject the said slaves so purchased by them respectively to the said mortgage, and to recover reasonable hire therefor, and also with a view to end any further litigation, as far as they are concerned, adjusted and compromised with said complainant, and in such adjustment, said Samuel Taylor, not delivering the said slaves purchased by him, accounts for the same as follows: Old Jim at five hundred dollars, Ransom at eight hundred dollars, and Catharine at eight hundred dollars, amounting in the aggregate to twenty-one hundred dollars, and which is the appraised as well as the real value thereof, and for the hire thereof nine hundred dollars; mating an aggregate of three thousand dollars. That said Nathaniel H. Fish, not surrendering Governor, accounts for him at eight hundred and fifty dollars, the appraised as well as the real value of him, and for his hire three hundred dollars, making together eleven hundred and fifty dollars. That said Samuel C. Roane, not delivering Sandy, accounts for him at eight hundred dollars, the appraised as well as the full value, and for the hire of the slaves purchased by him as aforesaid six hundred dollars, making together fourteen hundred* dollars; that he elects to surrender to the complainant Connell, who is to be received at eight hundred dollars, the appraised as well as the full value thereof, and Young Jim at six hundred dollars, the appraised as well as the full value thereof, making for the two fourteen hundred dollars; and which two last-mentioned slaves are hereby decreed to the complainant, by consent of parties and to carry out said agreement, making altogether the sum of six thousand and nine hundred and forty-nine dollars, to be applied towards the extinguishment of said mortgage; and with which the said James L. Dawson is to be credited on said mortgage debt, as of the day of the rendition of this decree. The court here being satisfied, that by said compromise the said defendant Dawson obtains as large if not a larger credit on said mortgage debt than if said negroes were sold; and there is nothing in controversy, as far as said Taylor, Fish, and Roane are concerned, except costs. That the court here from the pleading and proofs in the cause, is of opinion, and doth find the indebtedness of the said defendant Dawson, up to this time, upon said mortgage, to be twenty-one thousand and three hundred and twenty-eight dollars for principal and interest, and deducting therefrom the said credit of six thousand and nine hundred and forty-nine dollars, that the balance justly (due) and owing by the said defendant Dawson to the said Ayres P. Merrill, and in ar-rear at this time upon said mortgage, and secured thereby, is fourteen thousand three hundred and sixty-nine dollars ($14,369).

It is therefore ordered and adjudged and decreed, that the said James L. Dawson do pay to the said Ayres P. Merrill the said balance of fourteen thousand three hundred and sixty-nine dollars, which includes principal and interest, and is the sum now justly due upon said mortgage, after allowing the credit aforesaid. That the said James L. Dawson, Absalom Fowler, and Noah H. Badgett be, and they are hereby absolutely barred and foreclosed from all equity of redemption in and to all or any of the slaves specified in the said mortgage, or to the issue thereof bom since the making of said mortgage; and it is further ordered, adjudged, and decreed, that Samuel A. White be, and he is hereby, appointed a commissioner in this case, and to whom the said Absalom Fowler and Noah H. Badgett, without any unnecessary delay, and upon request being made by him, are required to surrender and deliver said slaves so purchased and possessed by them respectively as aforesaid; that is to say, that the said Absalom Fowler be, and he is hereby, required to surrender to such commissioner said slaves, Tom, Mary, and her child Henry, and Maria and her child Frances, aforesaid, and the issue thereof, if any, by whatever name known or distinguished, and bom since he acquired them; and that said Noah H. Badgett also be, and he is hereby required to surrender to such commissioner said slaves Eliza and Phoebe, and her two children named Jackson and Beverly, and such other of her issue, if any, by whatever names known, bom since he acquired her; and the said commissioner may, If it is necessary, sue out a writ of assistance to obtain the possession of said slaves, or any of them. And it is further ordered, adjudged, and decreed, that in case the said Absalom Fowler and Noah H. Badgett, or either of them, should be unable to deliver, or should fail or refuse to deliver, the slaves so purchased by them as aforesaid, upon the request of said commissioner, then and in that event it is further ordered, adjudged, and decreed, that for Tom, Mary and her child Henry, and Maria and her child Frances, or any one of them which the said Absalom Fowler is unable, or should fail or refuse to deliver, he shall be held accountable and liable, and shall pay to the said complainant, Ayres P. Merrill, the value thereof, as fixed and ascertained in a previous part of this decree, and to which reference is now made for the value thereof respectively, and for the collection thereof a special execution may issue, as at law; and for said negro Eliza and negro woman Phoebe and her said children, Jackson and Beverly, or any of them which the said Noah H. Bad-gett is either unable or should fail or refuse to deliver up to such commissioner, he shall in like manner be held accountable and liable to said complainant, Ayres P. Merrill, for the value thereof respectively, as fixed and ascertained in a previous part of this decree, and to which reference is now made respectively, and for the collection of which a special execution may issue, as at law; but before any such execution can be taken out in either case, the said commissioner must file in the office of the clerk of this court an affidavit stating such inability, failure, or refusal to deliver on request, and then said execution may issue against the proper persons upon the application of the complainant or his solicitor, and which shall be executed by the marshal as executions in ordinary cases; and whatever moneys may be made thereon shall be applied towards the extinguishment of the balance of said mortgage debt; and it is further ordered, adjudged, and decreed, that if the said commissioner shall obtain the possession of all or any of said slaves, or the issue thereof aforesaid, either by voluntary delivery to him, or by his own exertions, or by a writ of assistance, he shall sell the same at the front steps of the state house in the city of Little Rock, at public auction, for cash in hand, on some convenient day to be fixed by him, first giving at least thirty days’ notice of the time and place of sale, by publication in the “Arkansas Banner,” and advertisements posted up at three public places in the city of Little Rock; and that said commissioner be, and he is hereby empowered to make proper bills of sale to the purchaser or purchasers, and that, after paying the expenses of sale, he pay to the said complainant or his solicitor the proceeds of such sale, and which proceeds must be applied towards the extinguishment of said mortgage debt; or if the complainant should purchase the negroes, or any part of them, at such sale, the amount bid by him must be allowed as a credit on said mortgage debt; and that a copy of this decree be furnished by the clerk to said commissioner, and that he make a full report of his proceedings to the next term of this court; and it is further ordered and decreed, that the said Absalom Fowler do pay to the said complainant the said sum of thirteen hundred and fifty-eight dollars, it- being the hire of said slaves, Tom, Mary, and Maria, according to the rates and computed hire mentioned in the introductory part of this decree, and for which sum an execution may issue as at law, upon the application of the complainant or his solicitor, and the amount,* when collected, is to be placed as a credit upon the said mortgage debt; and it is further ordered and decreed, that the said Noah H. Bad-gett do pay to the said complainant the said sum of three hundred and ninety-six dollars, being the hire of the said slave Phoebe, according to the rate and computed hire mentioned in the introductory part of this decree; for said sum execution may issue, as in the last-mentioned case, and the amount collected shall be placed in like manner upon said mortgage debt; and it is further ordered and decreed, that the costs of this suit be taxed by the clerk against the said defendants Taylor, Roane, Fowler, Fish, and Badgett, the proportion of one-fifth part thereof to each one of them, and that they respectively pay said costs in that proportion; but the costs of the defendants, James L. Dawson, Baylor, Smith,-Hardwick, and William Dawson, are excepted out of the costs as above ordered to be paid. The costs occasioned by these defendants must be paid by the complainant. Whereupon the said defendants, Absalom Fowler and Noah H. Badgett, come and pray an appeal from a decree rendered herein to the next term of the supreme court of the United States; and thereupon, the court being fully advised in the premises, is of opinion that said prayer ought to be, and the same is hereby • granted. And thereupon, it is further considered and ordered by the court, that, upon the said defendants Fowler and Badgett, or either one, giving security according to law for the prosecution of said appeal to effect, and to answer all damages and cost, if they fail to make their plea good in the said supreme court; that the appeal hereby granted is to operate as to both or either who may give the required security, against said complaint as a supersedeas.

Appeal bond was given by Fowler, a transcript taken, and the case removed into the supreme court [where the judgment below was affirmed. 11 How. (52 U. S.) 375].