#### ARTHUR BLAKE AND ANOTHER *against*HENRY E. LANE.

Where the payee of a sealed note took a mortgage of slaves for the security thereof, which he permitted to lie for at least sixteen years, without the pay-meut of any part — even interest, and during that time the slaves remained in possession of the mortgagor, who sold some of them for the satisfaction of other debts, it was *Held*that this amounted to a presumption that the right to foreclose had been abandoned.

Where the question was, whether the length of lime, during which the mortgagee of slaves had foreborne to enforce his security, did not create a presumption of the abandonment of the right to foreclose, it was *Held*that the insolvency of the mortgagor was not evidence to rebut the presumption.

Cause removed from the Court of Equity of Rutherford county.

The defendant, Lane, in 1840, executed to the plaintiff, Arthur Blake, a sealed obligation for the sum of two thousand dollars, which purports to be for value received; at which time a mortgage deed, in the common form of a deed of trust, conveying seven slaves, was executed to the plaintiff, Walter Blake, as trustee, to secure the payment of the said obligation, and the said instrument provides that the said Walter, as trustee, shall sell the property for the purpose aforesaid, unless the defendant should pay the said debt on or before the 1st day of November, 1841, with interest. The deed provides that the defendant should retain possession of the slaves until the same should be wanted to answer the purposes of the trust, and the defendant did retain the possession of them without any demand for the money, or the property, until about the year 1856, when a bill, in Equity, similar to the present, was filed. The hill alleges the insolvency of the defendant and that he is about to sell the slaves, mentioned in the deed of trust, and have them conveyed beyond the limits of the State, and that he is apprehensive that he will lose the benefit of his said security. He, therefore, prays for a writ of sequestration to restrain the defendant in this particular, and also that the trustee may be decreed to take possession of the slaves in question, and sell the same for the satisfaction of the *413said debt. The bill of plain tiffs, by way of anticipating the conclusion from the lapse of time, alleges the recognition of the existence of the debt by the defendant at various times, and in various letters and other written evidences to the same effect, and attempts to explain the fact, that the defendant has had possession of the slaves, and that nothing has been paid on the note, and no attempt made, for so long a time, to enforce the mortgage, by the allegation, that the defendant was much oppressed with debt, and has since become insolvent, and as he was in prosperous circumstances himself and did not need the money, from tenderness and kind feeling towards the defendant and his family, he gave him this long indulgence.

The defendant answers and insists on the long lapse of time from the day of forfeiture (1st Uovember, 1841,) to the date of the commencement of this suit, (13th December, 1858,) and his continued possession of the slaves, as the grounds of a presumption that the plaintiff abandoned his right to enforce the security sought now to be set up. ITe admits the execution of the sealed note and the deed of trust, set out in the bill, but he says these were made not for a loan of money, or any other valuable consideration, but in order to keep his other creditors from seizing on these slaves for the satisfaction of their debts, and that it never was the design of the parties that the said mortgage or note should, in any way, be enforced. He alleges further, that he did sell two of the said slaves to neighbors of his, and applied the proceeds to the payment of other debts, arid that the plaintiff, Arthur, made no complaint about it, and lias never given himself any concern as to the mode in which these slaves were treated.

There were proofs taken in the cause, which are sufficiently treated of in the opinion of the Court.

Being set down for hearing, the cause was transmitted by consent.

*,S7iipp*and ■Gaither, for the plainiiffs.

*JÜ. W. Woodfin*and *J. W. Woodfoi,*for the defendant.

*414Pearson, C. J.

The defendant held possession of the slaves for more than ten years after the execution of the mortgage ; during that time some of them were sold for the satisfaction of other creditors, and the mortgagee makes no objection, and during the whole time nothing is said or done in respect to the mortgage debt, and not even one cent of interest is paid or demanded.

From this state of things, the law requires the Court to presume that the right to foreclose, or otherwise enforce the mortgage, has been *abandoned*for some cause or other ; whether by reason of a different arrangement, which the parties may have made, or because the mortgage-money has, in fact, been paid, or because, as is alleged in the answer, it never was the intention of the mortgagee *to*enforce the mortgage, are subjects beside the question.

The'presumption of the abandonment of the right to enforce the mortgage being established, the question is narrowed to this : Do the plaintiffs offer evidence sufficient to rebut this presumption ? "Without entering into a detailed examination of the evidence, it is sufficient to say, after perusing and giving to the whole of the evidence full consideration, we are of opinion that no fact, established by the proofs, is sufficient to rebut the presumption of an abandonment of the right to enforce the mortgage. The proof in regard to the insolvency of the defendant and his consequent inability to have paid the mortgage debt, is beside the question, because the slaves conveyed by the mortgage, constituted a fund, out of which, the payment of the mortgage debt could, at any time, have been enforced, and for reasons of public concern, if the matter is allowed to stand for more than ten years, during which time the *mortgagor is in possession,*the Court is required to presume that the right to foreclose has been abandoned.

In regard to a mortgage of slaves, if the mortgagee holds possession for more than two years after the *tíme*of forfeiture, the equity of redemption is barred by a statute of limitations —showing that the policy of the law is to discourage all suits *415on stale claims, especially in regard to property of this description.

Pee Cubiam, Bill dismissed.