#### Valentine Ruger & Hannah Dizell, *vs.*Hugh M‘Burney.

*Complainant having a life estate in a negro man, who was about ' to be sold at sheriff's sale, requested defendant to bid him off for her; which he did. Complainant and her husband agreed in writing to “warrant and*defend” *the negro to the defendant, till they should refund to him the money paid; which they promised to do on or before the first sale.day of September ensuing; and that otherwise defendant might retain him or sell him at their rislc. Bill claimed that the negro should be delivered up or sold. There being no proof of the money paid' by defendant having been refunded or tendered,*bill dismissed.

Bill states that the late Benjamin Dizell, by a post nuptial settlement, conveyed certain negroes,, and among others,the negro slave Morris, hereinafter mentioned, to the late Arthur Hughes, in trust for his wife, the complainant Hannah. 'The complainant, Valentine Ruger, has since been substituted in place of the said Arthur Hughes, dec’d. That the said Benjamin Dizell was indebted at the time of the settlement, but was possessed of property more than sufficient to pay all his debts. That after his death, the negro slave Morris, was taken in execution to satisfy a debt to one Isham Hutson, and the .complainants do not question or dispute the right of the execution creditor to be satisfied. But complainant, Hannah Dizell, applied to Dr. Hugh M'Burney to buy in the said ne-gfo slave for her, which he consented to do, and promised to convey the negro to said complainant, if the money which he might advance should be repaid within a given time. That the said Hugh M‘Burney informed the by-standers at the sale, that he was bidding for the complainant, and dissuaded them from bidding, by 'which means competition was repressed, and the *22negro was set down to him at .thé.price of $130 or thereabouts,, whereas the real.value was $600.

That complainant Hannah,by the intervention of her friends, raised the money,, and-within the time agreed on, offered to-repay to the said Hugh M'Burney the money advanced for the, Said negro; but he refused to return the negro, without .an allowance for .the trouble and expense which he had been at, in addition to the, interest of the money and the use and labour of the slave since the sale. . That.complainants have since tendered him the full amount of principal.and interest, which he has refused to accept, and,claims, to hold the negro as his own. Bill prays that , the .said H. M'Burney may-be declared to hold the-said slave-as a security onlj for the. money actually paid; and that the.negro-may either be re-conveyed to Valentine Huger, in trust for complainant. Hannah, or re-sold for the benefit of said complainant.and the creditors of Benjamin J. Dizell, and- for general relief.

The answer states- that complainant Hannah came to defendant,, with her,husband Benjamin Dizell, some,time before July 1821, and solicited him to buy the negro Morris; and they promised-that thfey would-refund'the, amount which he might pay, on or- before sale day in September following; and that in case -of their failing to do so, defendant might retain the negro, or sell him at .their risk. That defendant agreed to these proposals,,, and bought the. negro at the sheriff’s sales in July 1821, for $145,- which:he paid to the sheriff, and two dollars for the bill of sale.. Deniesthatbe prevented any persons from bidding, but-acted-, openly and without disguise. Denies that the price was inadequate. The complainants . mistake arises from misapprehension -of the interest sold,- which was only, the use of the negro during the life time of the complainant Hannah, as by the bill .of sale, will appear. But in.fact the negro-was not worth more than $400 at an.absolute sale; being of base character and diseased in the glands of the throat; that he has often been sick in defendant’s possession, and occasioned considerable expense for.medical attendance.

*23Defendant denies positively that complainant'-or any one for her, offered to refund to defendant the money he had paid for the negro, within-the appointed time. Defendant carried the negro again and again to Jacksonborough, 17 miles from his house, to meet Dizell and receive his mnoey, but was -always put off by excuses, or an oiler of a note and mortgage .instead of the money. Such conduct was a violation of the agreement which destroyed its obligation. He admits that after the death of Dizell, John L. Hunter called on1 him on the part' of complainant, but denies that he tendered any money or made any arrangement to paj\ He denies that the services of the negro were an equivalent for the use of the money, as he was sickly and disorderly, the more so, considering the uncertainty of defendant’s title. He avers that he sold a note for ,#200, with a year’s interest due, to raise the money to pay the person who lent him the money to pay for the negro, which was a loss occasioned by the failure of Dizell, and contends that he has a special lien or equitable mortgage, to-tlie full extent thereof. But defendant submits, that as the complainant has-failed p comply with her agreement, this court will not interfere, but leave the complainants to their remedy at law.

The complainants examined witnesses. General'Oswald was present at the sale, and heard the conversation between the parties; was proceeding to speak of the agreement, but on its appearing that the agreement had been reduced to writing, evidence of its contents were rejected, and the paper-was introduced in the following terms:

“We whose names are underwritten, -do hereby-state, that we requested Dr. M‘Burney to purchase at sheriff’s-sale, ‘a negro fellow of ours .named Morris, .and we'warrant and defend the said fellow Morris to said Dr, M^Burney, until we refund to him #147, being that which he the-said Dr. Hugh M£Burney páid the sheriff on our account; which we promise to pay on or before the first sale day in September next, otherwise the said Dr. Hugh M’Burney shall retain him, or to be sold at our risk.”

*Witness*— James' Smith. *Signed*— Benjamin J. Dizell,

Hannah .-Dizell.

*24John F. Myers, was present at a conversation between Hunter and IvRBurney. Hunter said he had $ 100 to pay M‘Bur-ney for Mrs. Dizell. M'Burney said the time for payment, was past, as by the terms of the agreement, and he had lost considerably by the sickness of the negro and his being unruly. The money was not produced by Hunter — believes it was $100. Hunter said he would rather pay the whole amount than M'Burney should keep the negro.

Defendant was about to call witnesses to prove the negro’s sickness and the expense incurred by physicians bills, (defendant being ill at the time, and unable to attend himself,) when the judge stopped him, sayisg the plaintiff had made out no case, and therefore ordered the bill to be dismissed.

From this order the complainants appealed, and moved that the same might be reversed and a decree made for the complainants, or the cause sent back for a re-hearing, for the following among other reasons:

1st. Because the- defendant had at most, no more *than a pledge*or mortgage of the negro, and complainant had a right to redeem, and should have been allowed so to do, or the negro *should have been decreed to be sold, and tke 'defendant ordered to account for his hire.*

2nd. Because it is unjust and fraudulent, as to the creditors of Benjamin Dizell, for whose benefit this bill is filed, • for the defendant to hold the negro absolutely.

Chancellor *Thompson.*

Isham Hutson, having an exe* éution against the complainant Hannah Dizell, it was levied on the negro Morris, who is the subject of the present litigation, in whom the complainant hád a life estate.

■ On the day of sale, complainant applied to defendant to purchase in the negro for her, and that she would redeem him by a specified time. The defendant did purchase the negro at the price of $145, and repeatedly tendered him to complainant and demanded a compliance with a written agreement between the parties, that the money should be retunded by the first sale day in September following. It is contended that this transaction must be considered as a mortgage. 1 admit that it must *25be viewed as a redeemable pledge; but surely it never dan be considered that the mortgager is entitled to redeem, unless upon payment of principal, interest and costs. No money has been tendered by the complainant, and until the amount of the purchase money with interest and costs is tendered, the complainant is premature in bringing her action.

It is ordered and decreed that the bill be dismissed with-ffosts. — -On appeal, decrees affirmed; by the whole court.