#### WILEY C. BAILEY *vs.*E. CARTER & AL.

The time fixed in a statute, as a bar to the redemption, in the case of an express mortgage, specifying a day of forfeiture, must also be applied to a right of redemption, arising by construction of a Court of Equity, and the time must be e'omputed from the accruing of the right to sue.

A Court of Equity can no more disregard a statute of limitation and repose, than a Court of Law can.

' Appeal from the Court of Equity of Yancy County, Spring Term, 1851, his Honor Judge Settle presiding. *•

The bill is for the redemption of a slave, Maria. The parties lived in Yancy, and the plaintiff, as a surety for a debt to the original defendant, Carter, conveyed the slave to him by deed bearing date September 13, 1841, purporting 'to be- absolute, in consideration of the price of $400' *283At the same time Carter executed a written agreement, to reconvey the slave, on the payment of the $400, with interest thereon from date, on or before the 1st day of January next following. Carter took the slave into possession, and, on the 2d day of November, 1843, the plaintiff gave up to him the agreement to reconvey, or defeasance, with a written endorsement from the plaintiff, assigning it to Carter, “for value received.” The bill was filed in April, 1847, and alleges, that the debt to Carter was not $400, but only $150 originally ; and that Carter was Sheriff of the county, and had in his hands several executions against the plaintiffs property, and availed himself of the power he thereby had over the plaintiff, to obtain from him the surrender of the defeasance, without any consideration therefor, although the slave was of the value of $500, or more.

Carter answered, that on the 13th of September, 1841, the plaintiff owed him the full sum of $400, for debts previously or then contracted, and that the value of the slave was not then more than that: That the plaintiff made frequent efforts to sell her to other persons up to November,. 1843, and could not get more for her; and that, finding he •could not, the plaintiff then proposed to sell her absoluely to the defendant, and that, in order to close the business, and obtain an indefeasible title, he and the plaintiff agreed for the equity of redemption at the price of $52 50, and thereupon the plaintiff surrendered the defeasance, which was intended as an extinguishment of the right to redeem. The answer states, that the defendant had, ever since, held and claimed the slave as his own absolute property, and without any claim on the part of the plaintiff of any right of redemption; and, thereupon, it insists on the lapse of time, and on the act of Assembly limiting the time, &c.

*J. W. Woodjin*for the plaintiff.

*N. W.*Woodjin, and *Gcdlhev*for the defendants.

*284Ruffin, C. J.

There are two statutes making the laches of a mortgagor a bar to redemption. One was passed in 1826, and enacts, that the presumption of the abandonment of the right of redemption on mortgages generally, shall arise from the lapse of ten years after the forfeiture of. the mortgage, or last payment on it. That forms the 14th sec. of Rev. Stat. chap. 65, and has no application in this case. The other is the act of 1830, and forms the 17th sec. of the same Rev. Stat.; and it enacts, that, when a mortgagor of personal property shall fail to perform the conditions of the mortgage for the space of two years from the time of performance specified in it, or shall omit for that period after the forfeiture of the mortgage, to file a bill claiming the equitable right to redeem, such mortgagor shall be forever barred of all claim in equity to such personal property. The period of two years seems to be short, and, it may be feared, will not unfrequentty operate severely on the necessitous people, who are compelled to mortgage slaves. But, as the enactment stands, it concludes the plaintiff’s case, which is within its letter. It was argued on his behalf, that the case was taken out of the act by the subsequent dealings, whereby Carter obtained a surrender of the defea-sance, and, in effect, a release of the equity of redemption, by undue means, and without any consideration : constituting fraud and oppression on the plaintiff, amounting to a new and substantive ground of relief. It is not necessary to consider the proofs as to the consideration for the surrender, and the circumstances under which it was obtained ; because, allowing the facts to be as alleged by the plaintiifi the relief, in respect thereof, would be simply to put that transaction out of the plaintiff’s way, as being,, in itself, a bar to the redemption, to which he had an equity, according to the terms of the original mortgage, and .leave him to insist on that equity, if done in due time — that is, within two years from the *1st*of January, 3842. It may be, that the dealing for the equity of redemption in No*285vember, 1843, was such a recognition of it, as would au-thorise the time to be computed from that period.. Whether that be so, or not, is not now to be decided; for, supposing the affirmative, the bill would still be barred, since it was not filed for upwards of three years after that dealing. For, undoubtedly, the time fixed in the statute as a bar to redemption, in the case of an express mortgage, specifying a day of forfeiture, is also to be applied to a right of redemption, arising by construction of a Court of Equity, and the time must be computed from the accruing of the right to sue. The Court of Equity can no more disregard a statute of limitation and repose, than a Court of Law can.

Per Curiam. Bill dismissed with costs.