#### Owen Holmes *et al. v.*John H. Hall *et al.*

¡V mortgagor of a chattel, having the right of possession for a stipulated period, cannot, after the expiration of that period, dispute the title of file mortgagee, and the same rule applies to hi? vendee.

Detinue, for a negro, tried on t he last circuit, at New-Hanover, before his Honor Judge Daniex.. The plaintiff’s claimed title as follows : The slave in dispute had belonged to one *James Saltar,*who had died intestate ; and administration upon his estate had been committed to one *Locke', David J. Melvin,*who married a. daughter of *Saltar,*had mortgaged the whole of his interest in the estate of *Saltar*to the plaintiffs. The mortgage deed contained a stipulation that *.Melvin*should retain possession for five years, which was the period limited in which the mortgage debt was to be repaid. This mortgage was duly proved and registered. The defendants claimed under *Melvin*by a subsequent purchase, and proved that after the execution of the mortgage to the plaintiffs, by an order of the County Court of Bladen, where *Saltar*lived, a division of *his*slaves took place, when the slave in dispute was assigned to *Melvin,*and was delivered to him by *Locke.*This order was made without filing a petition, and there was no judgment of the court confirming the division. *99After tbe expiration of the fire years, during which, by the terms of the mortgage deed, the slave was to remain In *Melvin's*possession, he being then in that of the de-, fondant, the plaintiffs made a demand of him, and upon a refusal, instituted this suit. For the defendants if was contended, that at the execution of the mortgage, Melvin■ and wife had only an equitable interest in tbe estate of *Saltar,*and consequently that the plaintiffs acquired no legal title thereby,, and that the division being irregular, did not vest a legal title either in the plaintiffs or *Melvin,*Eat the presiding judge thinking, that as the slave was delivered to *Melvin,*as a part of his distributive share in the estate of *Saltar, Melvin*must he considered as .holding him by the permission of the plaintiffs; and as he, after the expiration of the tune li-suited for the payment of the mortgage debt, could not dispute the title of the plaintiffs, so neither could the de-fendauts.

A verdict was returned for the plaintiffs, and the defendants appealed.

No counsel appeared for either party in this court.

HeNsersoN, Chief-Justice.,

What would be the effect of a payment by the administrator to a distributee* after an assignment by the distributee, and notice thereof to the administrator, does not arise. in this case. For this action affirms the delivery of the slave in question to the distributee, and claims the benefit thereof. ,Noi* need we examine the regularity of the proceedings of the County Court, in ordering a division of the intestate’s estate; for both the plaintiffs and defendant claim under it. In fact, the delivery of the slave by the administrator, no matter whether the court had jurisdiction or not, or whether the petition and order for a division were regular or irregular, passes the ]iroperty. It is true, a case might arise, where a delivery was made in pursuance of an irregular or invalid order for a division, and under an impression that such ,order was compulsory on the administrator, which might afford grounds to set aside and annul the delivery, as being made, under a mistake, *100But that is not this case. For these reasons, we deem it unnecessary to enter into the question, whether the court had jurisdiction, or whether the proceedings were regular; but found our opinion upon the effect'of the delivery of the slave in question to *Melvin,*as his wife’s portion, in whole or in part of her father’s estate. The only re-" maining question is, what was the effect of that delivery on the then state of faéts, with the subsequent demand of the slave, and the commencement of this suit.

Courts of law afford no remedy for a distributive share, because their forms were fixed before the right'to distribution was given.

But the right being now given by statute, it is recognized in courts of law..

We are all of opinion with the presiding judge, that *.Melvin,*the husband, received the slave in question, as mortgagor, for himself and his mortgagees, according to their *respective-rights;*and that he continued to. the time of his sale to hold him in that character; and that the defendants coming in under him, with notice of the mortgage, either express or implied, .(for the mortgage was duly registered,) held the slave until the demand, in the same manner. We do not fully understand what is meant in the argument appealing in the case, that a distributive share of an intestate’s estate is a mere equity; and that the defendants are purchasers for a valuable consideration. If by it is meant, that a court of equity, or a court proceeding by its forms, is resorted to, toen-force payment or delivery of a distributive share, the position is admitted. For it is true, that the forms of a court of law do not afford an adequate redress, because the right to distribution is of modern date, and was introduced after those forms were settled. But if it is meant, that it is not a right recognized by, andas binding, at law, as it once was, in conscience only, the position is denied. It is a right given by statute, its -extent and nature defined;, and must therefore be Icnown to, and recognized in courts of law, as a legal right. But if it is a mere equity binding in conscience, the defendants cannot protect themselves from its obligation in the hands of mortgagees. For altho’ they allege themselves to he purchasers for value, yet they i do not allege that they had no notice of the mortgage. And if they did, it would he disproved by its registration, which is notice to the world. As to the right of the husband to sell or *101mortgage Ms wjfels distributive share *for value, T*pre-mime that will not be denied.

Per Curiam — JudgmeNt affirmed.