A. J. WALKER, C. J.
The bill of complainant seeks to foreclose an equitable mortgage on slaves, claimed to have been created by a verbal agreement. One of the appellant’s positions, in opposition to the equity of the bill, is, that a mortgage of personalty cannot exist in this State, except by virtue of an instrument in writing. We have no statute in this State, which requires that such mortgages should be in writing; and that they may be made without writing under the common law, seems a necessary result of the established principle, that in the absence of any statutory requirement to the contrary, a conveyance of personalty may be without writing. In the eases of May v. Eastin, 2 Porter, 422, and Deshazo v. Lewis, 5 St. & Por. 94, this court distinctly recognized the validity of unwritten mortgages of personalty ; and in Coster v. Bank of Georgia, 24 Ala. 59-60, it seems to have gone still farther, and conceded to a parol agreement to give a mortgage, upon which money was advanced, the effect of a mortgage upon an estate consisting both of realty and personalty; but the question of the statute of frauds is not shown by the record to have been pleaded, and was not noticed by the court.
The point arose in the court of appeals of New York, and the necessity of a writing to the validity of a mortgage of goods and chattels was distinctly denied. — Bank of Rochester v. Jones, 4 Comstock, 506. Of course, in all of the cases, the contestatio litis was between the parties to the mortgage; and such is the case here. The case of Bowers v. Oyster, 3 Penn. (Penrose & Watts,) 239, cited [137]*137on the brief of appellant’s counsel, was in reference to-a mortgage of land, and was decided upon the Pennsylvania statutes. The case of Hebron v. Centre Harbor, 11 N. H., does not touch the question in hand. Powell, in his work on mortgages, affirms that parol agreements for mortgages of lands are void; but it is so affirmed upon the statute of 29th Charles II, which required conveyances of land to be in writing. — 3 Powell on Mort. 1050 a, 1050 b.
The bill shows that there was an agreement; and if it was an agreement to give a mortgage, predicated upon the consideration of a debt contracted on the faith of the agreement, it will be upheld and enforced, between the parties a-nd their representatives, as a mortgage, upon the principle, that equity will consider that as done which ought to have been done. — Coster v. Bank of Georgia, supra; 1 Story’s Eq. Jur. § 61 g ; Read v. Gaillard, 2 Dess. 552.
[2.] But it is contended, that the bill does not show an agreement to give a mortgage, because there was no debt remaining to be secured by the mortgage. It is averred, that the defendant was under the necessity of procuring eight hundred and fifty dollars, to enable him to redeem the property by a specified day from jan incumbrance that was upon it. The bill then states an agreement by the defendant, that if the plaintiff’s intestate would make such a deduction from an old debt due to him as would reduce it to $750, and deliver up the note and bond which evidenced the debt, and advance the required sum of $850, then the negroes should become the property of the plaintiff’s intestate, subject to the defendant’s right to redeem within a short space of time. The bill then states a performance of that agreement on the part of the plaintiff’s intestate. The parties .certainly meant, by an advance of money, a loan. It was either a loan, or a payment. The import of the word 11 advance” is such as rather to indicate that there was a loan, than a payment of purchase-money. The question is, mortgage or conditional sale; and without arguing the point, we refer to several decisions of this court, which show that the transaction described by the bill amounted to a mortgage. [138]*138Crews v. Threadgill, at present term; Lock v. Palmer? 26 Ala. 312; Cunningham v. Turnipseed, 16 Ala. 501; May v. Eastin, supra; Eiland v. Radford, 7 Ala. 724 ; Flagg v. Mann, 2 Sum. 486.
[3.] The argument, that delivery is indispensable to the validity of a verbal mortgage, cannot receive our approval. There is a distinction in that particular between mortgages and pledges. There is no distinction, and no reason for a distinction, between verbal and written mortgages-In Massachusetts, the court, apparently unmindful of the distinction between pledges and mortgages, seems to have regarded delivery as an indispensable ingredient of every mortgage, even when written, of personal property. Portland Bank v. Stubbs, 6 Mass. 422; Gale v. Ward, 24 Mass. 352; Tucker v. Buffington, 15 Mass. 477 ; Badlam v. Tucker, 1 Pick. 389 ; Bonsey v. Amee, 8 Pick. 236. But these decisions, as to that point, have not been approved or followed. — 2 Hilliard on Mortgages, 519; Goodenow v. Dunn, 21 Maine, (8 Shep.) 86. The cases, other than those of Massachusetts, to which appellant’s counsel refers in support of his argument, pertain only to the question of fraud, as affected by non-delivery and the want of possession in the mortgagee. — Murray v. Burtis, 15 Wend. 212; Look v. Comstock, ib. 244; Clow v. Woods, 5 S. & R. 275; Welsh v. Beekey, 1 Penn. (Pen. & Watts,) 57. In our State, the validity of mortgages of personalty, inter partes, although not accompanied by possession, is fully recognized. — Killough v. Steele, 1 St. & P. 262; Ross v. Ross, 21 Ala. 322; P. & M. Bank v. Willis, 5 Ala. 770; Mauldin v. Terrell & Mitchell, 14 ib. 814; Magee v, Carpenter, 4 Ala. 469; see, also, Brownwell v. Hawkins, 4 Barb. 491; 2 Hill, on Mort. 519, § 2.
The bill avers the expiration of the “ short time” allowed for the redemption by the defendant. That the law-day was passed before the commencement of this suit, is thus clearly shown.
We decide that the complainant’s bill contained equity, and the chancellor did not err in overruling the motion to dismiss.
[139]*139[4.] The answer distinctly admits all that is necessary to constitute an equitable mortgage for the $850 advanced by the complainant’s intestate. The bill claims that the mortgage was designed to secure another debt of $750. The chancellor granted the complainant relief as to the $850, but declined to grant any relief as to the other alleged debt; because it is denied to have existed or been secured by the mortgage, and the chancellor was of the opinion that the proof did not sustain the bill in that particular. The question arises, whether there is a fatal variance between the allegata and probata, because it appeared on the hearing that only one of the two debts alleged in the bill was secured by the mortgage. The variance was such as affected only the measure of the plaintiff’s recovery, and not either the character of relief, or the right to it. It therefore falls within the principle settled in Gilchrist v. Gilmer, 9 Ala. 985, and is not fatal. McLane v. Riddle, 19 Ala. 180; Montgomery v. Givhan, 24 Ala. 586 ; Barnes v. Williams, 28 Ala. 613.
The complainant’s relief, to the extent allowed by the chancellor, does not depend in the slightest degree upon the deposition of Clarkson. Its suppression would, not have changed the result; and there was, therefore, no injury to the appellant from the failure to suppress it, and there can be no reversal for such failure.
[5.] The chancellor erred in sustaining the complainant’s first exception to the register’s report.
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A. J. WALKER, C. J.
The bill of complainant seeks to foreclose an equitable mortgage on slaves, claimed to have been created by a verbal agreement. One of the appellant’s positions, in opposition to the equity of the bill, is, that a mortgage of personalty cannot exist in this State, except by virtue of an instrument in writing. We have no statute in this State, which requires that such mortgages should be in writing; and that they may be made without writing under the common law, seems a necessary result of the established principle, that in the absence of any statutory requirement to the contrary, a conveyance of personalty may be without writing. In the eases of May v. Eastin, 2 Porter, 422, and Deshazo v. Lewis, 5 St. & Por. 94, this court distinctly recognized the validity of unwritten mortgages of personalty ; and in Coster v. Bank of Georgia, 24 Ala. 59-60, it seems to have gone still farther, and conceded to a parol agreement to give a mortgage, upon which money was advanced, the effect of a mortgage upon an estate consisting both of realty and personalty; but the question of the statute of frauds is not shown by the record to have been pleaded, and was not noticed by the court.
The point arose in the court of appeals of New York, and the necessity of a writing to the validity of a mortgage of goods and chattels was distinctly denied. — Bank of Rochester v. Jones, 4 Comstock, 506. Of course, in all of the cases, the contestatio litis was between the parties to the mortgage; and such is the case here. The case of Bowers v. Oyster, 3 Penn. (Penrose & Watts,) 239, cited [137]*137on the brief of appellant’s counsel, was in reference to-a mortgage of land, and was decided upon the Pennsylvania statutes. The case of Hebron v. Centre Harbor, 11 N. H., does not touch the question in hand. Powell, in his work on mortgages, affirms that parol agreements for mortgages of lands are void; but it is so affirmed upon the statute of 29th Charles II, which required conveyances of land to be in writing. — 3 Powell on Mort. 1050 a, 1050 b.
The bill shows that there was an agreement; and if it was an agreement to give a mortgage, predicated upon the consideration of a debt contracted on the faith of the agreement, it will be upheld and enforced, between the parties a-nd their representatives, as a mortgage, upon the principle, that equity will consider that as done which ought to have been done. — Coster v. Bank of Georgia, supra; 1 Story’s Eq. Jur. § 61 g ; Read v. Gaillard, 2 Dess. 552.
[2.] But it is contended, that the bill does not show an agreement to give a mortgage, because there was no debt remaining to be secured by the mortgage. It is averred, that the defendant was under the necessity of procuring eight hundred and fifty dollars, to enable him to redeem the property by a specified day from jan incumbrance that was upon it. The bill then states an agreement by the defendant, that if the plaintiff’s intestate would make such a deduction from an old debt due to him as would reduce it to $750, and deliver up the note and bond which evidenced the debt, and advance the required sum of $850, then the negroes should become the property of the plaintiff’s intestate, subject to the defendant’s right to redeem within a short space of time. The bill then states a performance of that agreement on the part of the plaintiff’s intestate. The parties .certainly meant, by an advance of money, a loan. It was either a loan, or a payment. The import of the word 11 advance” is such as rather to indicate that there was a loan, than a payment of purchase-money. The question is, mortgage or conditional sale; and without arguing the point, we refer to several decisions of this court, which show that the transaction described by the bill amounted to a mortgage. [138]*138Crews v. Threadgill, at present term; Lock v. Palmer? 26 Ala. 312; Cunningham v. Turnipseed, 16 Ala. 501; May v. Eastin, supra; Eiland v. Radford, 7 Ala. 724 ; Flagg v. Mann, 2 Sum. 486.
[3.] The argument, that delivery is indispensable to the validity of a verbal mortgage, cannot receive our approval. There is a distinction in that particular between mortgages and pledges. There is no distinction, and no reason for a distinction, between verbal and written mortgages-In Massachusetts, the court, apparently unmindful of the distinction between pledges and mortgages, seems to have regarded delivery as an indispensable ingredient of every mortgage, even when written, of personal property. Portland Bank v. Stubbs, 6 Mass. 422; Gale v. Ward, 24 Mass. 352; Tucker v. Buffington, 15 Mass. 477 ; Badlam v. Tucker, 1 Pick. 389 ; Bonsey v. Amee, 8 Pick. 236. But these decisions, as to that point, have not been approved or followed. — 2 Hilliard on Mortgages, 519; Goodenow v. Dunn, 21 Maine, (8 Shep.) 86. The cases, other than those of Massachusetts, to which appellant’s counsel refers in support of his argument, pertain only to the question of fraud, as affected by non-delivery and the want of possession in the mortgagee. — Murray v. Burtis, 15 Wend. 212; Look v. Comstock, ib. 244; Clow v. Woods, 5 S. & R. 275; Welsh v. Beekey, 1 Penn. (Pen. & Watts,) 57. In our State, the validity of mortgages of personalty, inter partes, although not accompanied by possession, is fully recognized. — Killough v. Steele, 1 St. & P. 262; Ross v. Ross, 21 Ala. 322; P. & M. Bank v. Willis, 5 Ala. 770; Mauldin v. Terrell & Mitchell, 14 ib. 814; Magee v, Carpenter, 4 Ala. 469; see, also, Brownwell v. Hawkins, 4 Barb. 491; 2 Hill, on Mort. 519, § 2.
The bill avers the expiration of the “ short time” allowed for the redemption by the defendant. That the law-day was passed before the commencement of this suit, is thus clearly shown.
We decide that the complainant’s bill contained equity, and the chancellor did not err in overruling the motion to dismiss.
[139]*139[4.] The answer distinctly admits all that is necessary to constitute an equitable mortgage for the $850 advanced by the complainant’s intestate. The bill claims that the mortgage was designed to secure another debt of $750. The chancellor granted the complainant relief as to the $850, but declined to grant any relief as to the other alleged debt; because it is denied to have existed or been secured by the mortgage, and the chancellor was of the opinion that the proof did not sustain the bill in that particular. The question arises, whether there is a fatal variance between the allegata and probata, because it appeared on the hearing that only one of the two debts alleged in the bill was secured by the mortgage. The variance was such as affected only the measure of the plaintiff’s recovery, and not either the character of relief, or the right to it. It therefore falls within the principle settled in Gilchrist v. Gilmer, 9 Ala. 985, and is not fatal. McLane v. Riddle, 19 Ala. 180; Montgomery v. Givhan, 24 Ala. 586 ; Barnes v. Williams, 28 Ala. 613.
The complainant’s relief, to the extent allowed by the chancellor, does not depend in the slightest degree upon the deposition of Clarkson. Its suppression would, not have changed the result; and there was, therefore, no injury to the appellant from the failure to suppress it, and there can be no reversal for such failure.
[5.] The chancellor erred in sustaining the complainant’s first exception to the register’s report. By the sustaining of that exception, the mortgagee was relieved from a charge of interest on the annual hire of the slaves, from the end of each year after he went into possession. The result thus attained was, that the mortgagee received interest upon his debt, and enjoyed the annual profits of the mortgagor’s slaves, without accountability for interest. This ruling is supposed to have been made on the authority of Hogan v. Stone, 1 Ala. 496. But that decision is pronounced in reference to a case where, in the language of the decision, “the defendant was in possession under a purchase, and [was] only a constructive mortgagee in possession;” and where, besides, the rents and profits largely exceeded the debt and interest, and the' attempt was to swell the bal[140]*140anee against the mortgagee by a charge of interest. That decision seems to have been chiefly placed upon the authority of Breckenridge v. Brooks, 2 A. K. Marsh. 341, in which the rents were ’ credited as they were received upon the debt; and the court decided, that the mortgagee was not chargeable with interest upon the rents received after the discharge of the mortgage debt. Whether we would follow those decisions, in a case-of like features, we will not now decide; but we cannot, upon them, sustain the chancellor’s ruling, without doing greater violence to the authorities, English and American, abd to justice, than our sense of judicial propriety will permit. We cite the authorities, which fully sustain the charge of interest. Shephard v. Elliot, 4 Madd. 254; Wolcott v. Sullivan, 1 Edw. Ch. 405; Quarrell v. Beckford, 1 Madd. 269; 3 Powell on Mort. 957 b, notes; 1 Hilliard on Mort. 420; Saunders v. Frost, 5 Pick. 270.
[6.] The annual taxes was a charge upon the slaves, for the payment of which the chancellor, by sustaining the complainant’s second exception to the register’s report, gave the mortgagee the benefit. — 4 Kent’s Com. 188 (m.) 166; 1 Hill, on Mort. 420, § 9.
[7.] The mortgagee was not accountable for the value of the slave which died in his possession, and all liability for her terminated by her death, there being no proof^of fraud or negligence. — 4 Kent’s Com. supra.
[8.] It is not an invariable rule to make annual rests in talcing the account against the mortgagee, and in a case where, as in this, the mortgagor was largely in arrear, and the mortgagee obtained possession in a legitimate way, such rests ought not, in general, to be made against him; certainly not unless a like course was pursued in reference to the other side, in which event the appellee would be the loser by making the rests, as his side of the account is much the larger. — 3 Powell on Mort., supra.
We have carefully examined the testimony before the register; and we are not convinced that the register has erred in his estimate of the hire, to the prejudice of .the [141]*141appellant; and we approve the action of the chancellor in refusing to disturb the estimates reported by him.
We do not think that any of the exceptions to the register’s report, except as to the interest, ought to have been sustained; and the chancellor was manifestly right in perpetuating the injunction.
The interest on the annual hire was correctly-calculated by the register, from the end of each year, beginning with ■the commencement of the mortgagee’s possession.
The decree of the chancellor is reversed, for the single error as to the interest on the annual hires, and remanded for the single purpose of allowing the chancellor to correct his decree in that particular. The appellee must pay the costs of this appeal.