#### John W. Anderson *vs.*Hugh K. Aiken.

*Mortgage*— Fraud—Jurisdiction—Parties.

A purchaser in Florida of a mortgaged slave, removed the slave to this State, and here sold him to one who carried him beyond the *jurisdiction:*— Held, that the purchaser, who bought with notice of the mortgage, was liable in equity to the mortgagee : and that the mortgagor was a necessary party to the bill.

BEFORE DUNKIN, OH.,. AT CHARLESTON, JUNE, 1859.

This case was heard upon the report of the master, which is as follows:

I beg leave respectfully to report that I have been attended by the solicitors, and have taken testimony in this ease as follows:

On 6th March, 1856, W. E. Chambers, Jr., then a resident of Florida, being indebted to the plaintiff iti the sum of $2,000 on note, executed a mortgage of certain lands and slaves in Florida, to secure the payment of this debt and future advances — the plaintiff being his factor and doing business in Savannah. That at the maturity of the note in January, 1S57, the debt had reached about $4,000, and is'stil! due at the date of this report. This mortgage was duly recorded in the proper office, and within the proper time, as required by the laws of Florida.

Among the negroes mortgaged was one described in that instrumentas “a mulatto man named Thomas, aged about twenty-two years.” It is in evidence that Chambers owned another negro man named Tom, described as “ of a black complexion ;” his age is not given. That besides Thomas, to be hereinafter more particularly referred to, two of the mortgaged negroes have been sold by W. E. Chambers, Jr., viz: one to W. E. Chambers, Sr., with the consent of the *233mortgagee, but the mortgagor received the purchase money, and one to some person unknown. The value of these negroes and their price have not been proved before me.

The plaintiff is not shown to have consented to any other sale but that to W. E. Chambers, Sr.

It further appears that about the early part of the year 1857, W. E. Chambers, Jr., became indebted to H. K. Aiken & Co., (of which firm defendant is a partner,) in the sum of $2,300. That in the spring of 1857, defendant visited Chambers on his plantation in Florida, to procure a settlement of his debt, and then or at some other time, as he states in his answer, he saw the mortgage on record, but he alleges that Chambers told him the mortgaged negro was not this Thomas, but another of the same name. That he procured from Chambers a bill of sale of the negro, and brought him to Charleston, and there is no proof that he used any disguise or concealment in doing so. That soon after his arrival he offered him for sale to a witness, who describes him as named Thomas, “a likely brown man, about twenty-two years of age.” That Aiken represented to this witness, that he got him from a man in Florida, named Chambers; that Chambers was indebted to parties in Savannah, and had mortgaged some of his negroes to secure the payment, and that he .(Aiken) was not certain whether this was one of the negroes or not, and as there was some doubt about it, he would not guarantee the bill of sale. That Chambers had informed him there was no mortgage on this negro Tom; that there was another Torn, who was in the mortgage. The witness took legal advice, and declined the sale. He says Thomas was ruptured, but as he was recommended by Aiken as a good coachman, he would have given $700 for him, if the title had been good. Immediately thereafter, viz: 9th June, 1857, Aiken sold the negro by public auction, in Charleston, for $800, to a negro trader — the purchaser receiving Aiken’s bill of sale.

*234I reportas my opinion that Thomas was worth $S00 when sold, and his hire is worth, annually, $120.

The proof is that the plaintiff cannot realize his debt from Chambers without the mortgaged property. It has not been shown to my satisfaction whether, after the sale of the negroes referred to, the balance of the mortgaged property would or would not be sufficient to pay the plaintiff’s debt.

I further find that H. K Aiken & Co. have obtained judgment at January Term, 1858, in Charleston, against W. E. Chambers, Jr., for $1,494 10, being the balance due them after crediting the amount of the sale of Thomas. In this suit Chambers was held in bail, and W. E. Ellison, S. C. E. Chambers and John Adger, became his sureties, and the bail has been fixed by the return of *non est*on the *ca. sa.*

Dunkin, Ch. The facts of this case are presented in the report of the evidence.

If the charge of the bill had been established, that the defendant fraudulently assisted Chambers in the clandestine removal of his property, with a view to defeat his creditors, the suit might be maintained upon the authority of *Pickett vs. Pickett,*2 Hill Ch., 470. But the denial of any fraudulent design, or even clandestine removal, is corroborated and sustained rather than impugned by the testimony.

So, too, assuming the identity of the slave Tom, the plaintiff holding a mortgage from Chambers, of both real and personal estate, might maintain his bill in this Court for account and foreclosure; but in such proceedings the debtor and mortgagor, Chambers, would of course be a necessary party. Nor is this the scope of the bill.

It has been held that, after condition broken, the mortgagee of a chattel is regarded as the owner. *Wolf vs. O’Farrell,*1 Tread. Const. Rep., 151.

Whether he should be considered owner in the sense of enabling him to maintain a bill for specific delivery .against the *person in possession*of the slave, upon the principle of *235*Young vs. Burton,*McM. Eq., 25fi, it is not necessary here to inquire. The bill is filed on the assumption that the plaintiff is “the actual owner of the slave,” sets forth the sale by the defendant before any demand made, and the only specific remedy which the plaintiff seeks is, that “the defendant may be decreed to pay over to the plaintiff the full value of the slave Thomas, with interest, &c.” If the plaintiff is entitled to this, it may be recovered by an action of trover, according to the case already cited, *Wolf vs. O’Farrell;*or, if an action of trespass would be more appropriate, the ordinary tribunal is open for that purpose. See *Montgomery vs. Kerr,*1 Hill, 291.

It is ordered and decreed, that the bill be dismissed.

The plaintiff appealed on the grounds:

1. That the defendant is shown to have acted, fraudulently in assisting Chambers to remove his property, with the intention of defeating the plaintiff’s claim.

2. That whether Aiken and Chambers did or did not *intend*to defraud Anderson, “by their conduct, their success, and a fraud upon an innocent creditor, have become inseparable,” and this entitles the plaintiff to relief in this Court.

3. That the bill is filed *inter alia*to compel defendant, a creditor, with two adequate securities, to surrender one to the plaintiff, who had but one : and this is a familiar ground of equity jurisdiction.

4. Because a mortgage, executed in another State, does not confer on the mortgagee the power of seizure, or right to sue at law here, even after condition broken ; and if it ever were so, the Act of 1843 has rendered recording necessary to such power. The plaintiff submits, therefore, that he had no adequate remedy at law, his mortgage not having been so recorded.

*Martin,*for appellant.

*2361. The circumstances of the removal and sale of the slave, and appropriation of the proceeds by Aiken, leave no other possible interpretation but an intention to defeat Anderson’s mortgage. This is fraud, and needs not to have been done clandestinely, as the decree assumes. *Pickett vs. Pickett, 2*Hill Ch., 471; *Petius vs. Smith,*4 Rich. Eq., 198; *Farr vs. Sims,*Rich. Eq. Ca., 122; *McMeekin vs. Edmunds,*1 Hill Ch., 288 ; Story Eq., sec. 333, 349, 395, 396, 397, 400.

2. Anderson has an equity to compel Aiken, who had a general lien on Chamber’s property, to release all claim upon the slave upon whom Anderson had only a specific lien. *Bank of Hamburg vs. Howard §•*Garmany, 1 Stro. Eq., 177.

3. If Aiken has not acted fraudulently, he is a purchaser of the slave subsequent to Anderson’s mortgage, and without notice. As to him, the mortgage would, therefore, be void. 11 Stat., 256. Neither could he be sued in trover nor trespass as the decree assumes, unless it was first shown, that the mortgage conferred such right by the laws of Florida. For although remedies belong to the *lex*fori, yet the merits and rights of the parties are controlled by *lex loci contractus.*The right, according to the latter, may be *in rem,*not *in personam.*If these positions are correct, it follows, that Anderson could only pursue his remedies in this Court. Story’s Conflict of Laws, sec. 558 and 56S; *Napier and Gidier,*Speer Eq., 215; *Cameron and Wurtz,*4 McC., 278.

*Simonton,*contra.

The opinion of the Court was delivered by

O’Neall, C. J.

In this case, it seems that the defendant visited the mortgagor on his plantation, in Florida, and saw the mortgage, under which the complainant claims, on record. This, beyond all doubt, was sufficient notice to him. It is true, his debtor told him that the mulatto man Thomas, then before him, and described in the mortgage as “a mulatto man named Thomas, about twenty-two years of age,” was *237not the man in the mortgage, bat that he was another man of the same name. Whether there ever was* another mulatto man named Thomas, who belonged to Chambers, does not appear. He had a black man of that name.

The defendant, with the knowledge which the mortgage gave him, purchased the mulatto man, named Thomas, in satisfaction of his debt, removed him from Florida, and in Charleston sold him at auction, without a warranty, to a negro trader, for $800. The question is, who in equity-must bear the loss ? Beyond all doubt, the complainant’s legal title is perfect; but he canuot avail himself of it, inasmuch as the defendant, knowing or believing that the slave would be recovered from him, if he remained in South Carolina, sold him to one who was likely to remove him, and who did remove him to parts uuknown. I am clear the defendant is answerable. The cases of *Pickett vs. Pickett, 2*Hill Ch., 471 ; *Pettus vs. Smith,*4 Rich. Eq., 196, are full and clear authorities to that point. But it may be, as has been suggested, that the other mortgaged slaves which have been sold, and the other property, real and personal, mentioned in the mortgage, may have been, or ought to have been applied to the satisfaction of the mortgage, and that thus the mortgagee has a sufficient remedy without resorting to the slave sold by Aiken. To reach what may be the true state of facts in these respects, and also to ascertain the amount of the complainant’s debt, it is necessary that the mortgagor, W. E. Chambers, should be a party.

It is therefore ordered and decreed, that the circuit decree be set aside, and the case remanded to the circuit, with leave to the complainant to so amend his bill as to make W. E. Chambers, Jr., a party, and to set out his mortgage more fully, and the debt secured thereby, and the property therein mortgaged, and what has become of the same; and any other matter which he may be advised, is material to his cause.

Johnston and Wakdlaw, J. J., concurred.

*Decree set aside.*