#### *M. L.*Bryan, *adm’or, and J. C.*Richardson, *vs. U. M. Robert.*

A surety, who obtains an assignment of the mortgage of a slave, given by his principal to secure the same debt on account of which he is surety, may file a bill against an innocent purchaser from the mortgagor for a specific delivery of the slave.

If the innocent purchaser of a mortgaged slave should, on coming to a knowledge of the mortgage, send the slave out of the State, with a view to defeat the lien of the mortgage, *qumre,*would he be liable to account for the value of the slave to the parties whose interests the mortgage was intended to protect ?

*Before*Harper, Ch. *at*Barnwell,

February, 1844.

*The Chancellor.*At a sale of the personal estate of one Robert Minors, deceased, James M. Loper became the purchaser of a slave named Stephen, for which he gave his bond to Benjamin Coleman, the administrator, with Joseph C. Bryan, the intestate of the complainant, Martin L. Bryan, and the complainant James C. Richardson, as sureties, together with a mortgage of the property. Loper shortly afterwards sold the slave to one J. M. Myers, and, as it is stated, delivered the possession of him. Before any bill of sale executed, the defendant Ulysses M. Robert bargained with Myers for the purchase of Stephen, at the alleged price of $625, and the bill of sale was executed directly from Loper to Robert. The complainants state their liability on the bond; that Loper is utterly insolvent; that Myers and defendant purchased with knowledge of the mortgage ; that defendant has sent the slave out of the state, and they pray that he may be compelled to produce him, or to account for his value towards satisfaction of the debt to the estate of Minors.

The defendant pleads that he is a *bona fide*purchaser for valuable consideration without notice, and answers, denying notice fully and explicitly.

An attempt was made to prove notice, but I think it failed entirely. It amounted to no more than this ; that an advertisement of the sale of the estate of Minors, specifying its terms, was put up at a store, where was the defendant’s post office, and to which he was in the habit of resorting.

A witness proved the acknowledgment of Myers of his having received of defendant $625, as the price of Stephen.

I have no doubt but that the complainants might have sus*12tained their bill against Loper, while the negro was in his possession, and the administrator of Minors, to compel the former to pay off his debt, or the latter to enforce his mortgage. And they would have the same equity against any purchaser from Loper, having notice. But as it would be merely an equity, they could not enforce it against a *Iona fide*purchaser without notice. Notice is denied, and as I have said, it has not been proved. It was shewn that the mortgage had been assigned to the complainants, and it was urged that this vested the legal title in them, and that they may recover on this legal title. It appeared, however, that the assignment was made after the filing of the bill, and only the day before the hearing. This was not, therefore, and could not be, a part of the case made by the bill, and cannot properly be considered. It might perhaps be within the discretion of the court, if justice and convenience required it, to retain the bill and give leave to amend. But I am satisfied such a bill could never be sustained. It is plain that this does not come within the class of cases in which a bill is held to lie for the specific delivery of a slave. It is plain that if complainants have the legal right, their remedy is by action of trover at law. It is true, that it is said in *Miller vs. Furse,*Bail Eq. 187, that such an objection to the jurisdiction must' be taken by demurrer, plea or answer, and not *ore tenus*at the hearing. But it was- impossible for the defendant in this case to object otherwise than he did at the hearing, as the charge formed no part of the bill. A claim that is made *dehors*the bill, may certainly be defended *dehors*the answer. The bill is dismissed.

The complainants appealed, and now moved this court to reverse the decree of his Honor the Chancellor, and for a decree in their favor, on the following grounds.

1. Because the plea that the defendant was a purchaser for valuable consideration without notice was informal, insufficient, and contrary to the rule and practice of the court.

*2.*Because the legal title being in the complainants, the plea could not avail.

3. Because it was proven that the defendant had notice of the mortgage before he removed the negro, and he cannot therefore be protected by his own wrong, and should be compelled to bring back the negro within the jurisdiction, or account for his value.

4. Because upon the case as made by the bill, answer and proof, the decree should have been for the complainants.

*13And also, (if need be) the following ground will be used.

That leave should have been granted to amend the bill so as to state the assignment of the mortgage to the complainants.

Bellinger, for the appellants.

*J T. Aldrich,*contra.

*Curia, per*JohnstoN, Ch.

It appears to have come out in evidence, at the hearing, (and, so far as we can see, without objection to the evidence,) that the plaintiffs had obtained an assignment of the mortgage after the filing of their bill. The court was precluded from giving effect to the case thus made out, because it transcended the statements of the bill.

The Chancellor, speaking of the case thus presented, says it was not “a part of the case, made by the bill, and cannot properly be considered. It might be within the discretion of the court, if justice and convenience required it, to retain the bill and give leave to amend. But I am satisfied,” he continues, “such a bill could never be sustained. It is plain that this does not come within the class of cases in which a bill is held to lie for the specific delivery of a slave : it is plain that if complainants have, the legal right, their remedy is by action of trover at law.”

These observations show, that, if the Chancellor had been of the opinion, that the legal title, superadded to the equities of the plaintiffs, could have countervailed the defendant’s plea of innocent purchase, and that this case came within the principle of *Young vs. Burton,*McM. Eq. 255, he would have given leave to make the amendment indicated by him.

We are of opinion, that this is one of the cases calling for a specific delivery. The case, in my judgment, is much stronger than *Young vs. Burton.*A portion of the court, in that case, doubted whether a decree should be made for the delivery of specific slaves, unless the bill stated the peculiar circumstances imparting a particular value to the property, or set forth the particular purposes which rendered its delivery necessary. It was held, however, by a majority of the Judges, that wherever the plaintiff stated a case in which the defendant was in possession of his slave, he stated a case entitling himself to the interposition of this court, unless, indeed, the defendant, by the exhibition of an equity on his part superior to that of the plaintiff, could turn him over to his legal remedy.

Although one of the dissenting Judges in that case, I should not, even then, have doubted the authority or duty of the court *14to interpose in such a case as this. The plaintiffs, since their assignment, stand as mortgagees of a chattel, out of which, specifically, their debt is to be paid. The defendant, as purchaser of the mortgaged property, is entitled to redeem; and, if the property should be subjected to the mortgage, he is also entitled to whatever of the proceeds of sale may remain, after the mortgage debt is satisfied. The plaintiffs’ case, therefore, is one for the foreclosure of their mortgage ; and it is not perceived how an. action of trover, even if one lay, would furnish them their appropriate remedy.

We think, therefore, the plaintiffs should have leave to amend: but this should be granted upon payment of the costs of the amendment.

In granting this leave, we purposely abstain from expressing any opinion upon the judgment which should be given in the case, as it will then stand. But we conceive that it will not be improper to indicate that one part of the bill, as it was originally framed, and stood at the hearing, and which seems to have escaped the Chancellor’s attention, deserves to be maturely considered : and it is that part which charges that -the defendant, (supposing him to have had no notice of the mortgage when he bought,) yet that coming to a knowledge of it afterwards, he removed the property, which a view to defeat its lien and to destroy those interests which the plaintiffs had in its enforcement. It may be, that such a case may fall within the principle of *Pickett vs. Pickett,*2 Hill Ch. 470, or some analagous principle.

It is ordered that the decree be set aside; that the cause be remanded to the circuit court; and that the plaintiffs have leave to amend the bill upon payment of the costs of their amendment.

Johnson and Dunkin, CC. concurred.

Harper, Ch. absent.