#### M. E. & M. Maples, by E. Broughton, their next friend *v.*Thomas Maples, Ex’or of E. Maples, John Durant et al. M. E. Maples and M. Maples *v.*J. M’Clendon and Thos. Maples.

The principle that a debtor has the right to give a preference among his creditors, is too well settled in this State, to be now questioned.

In a written assignment of this character any provision which secures an *undue*advantage to the *debtor*or *assignor,*has been held to vitiate the instrument so far as the rights of other creditors were *hindered*and *delayed.*The rule applies at least with equal force to the case of a *parol*assignment, or transfer, for the purpose of securing a preference.

In the case of Smith v. Henry, 2 Bail., 118 ; 1 Hill, 16, the court only determined that on a sale to pay a *pre-existing*debt, the continuance of the *vendor*in possession, authorised the legal presumption of a secret agreement or stipulation for this undue advantage, not to be rebutted by evidence, and that the sale was fraudulent *per se.*

The case of Smith & Henry does not proceed on the ground that the possession of' the vendor after a sale of chattels, is *per se*fraudulent. Such a principle it is believed could not, at this day, be maintained. If the possession of the *vendor*be consistent with the character of the transaction, or if the sale be *not*to secure *& pre-existing*debt, but in consideration of a price actually paid, or as in Briggs & Jones v. Blake & wife, 2 Hill, 629, where the vendor was to pay hire, in all these and' other instances of the like character, it has been held on sound principles that the possession of the vendor after the sale did not invalidate the transfer.

But where a debtor sells his property, to one of several creditors in satisfaction of his debt, the creditor becomes the owner of the property, and the debt is gone.' If, instead of enjoying that which is his own, the creditor permit the debtor to have the use of the property, without hire or reward, this is inconsistent with the ordinary conduct of men having a moderate regard to their'own interests, it secures an advantage to the debtor to which he is not entitled, by giving him an interest in the property, which cannot be rendered available to his other creditors in satisfaction of their demands. It creates a presumption of unfair dealing; that the preference which had been given was the price of this undue advantage.

It may well be presumed that property which the vendor continued to enjoy and of which for all substantial purposes, the vendee was only to be the nominal owner, was not sold at its full value ; but (as is said in Smith v. Henry) the conditions of such sales are usually known only to the parties, and are incapable of proof. The law supplies the defect, infers from the circumstances the existence of the corrupt agreement, and attaches to the transaction the character and penalty of fraud.

*301But the reasons upon which, in the case of an *absolute*sale of property to pay a pre-existing debt, the subsequent possession of the vendor, is held to be evidence of fraud in the transfer, per se, do not apply to the case of a *mortgage,*given to secure the payment of a 'pre-existing debt, and the possession of the mortgagor after condition broken,;is no evidence of fraud *per se*in the mortgage.

The distinction between the ordinary mortgages of chattels in England, and a mortgage of *slaves*in this State pointed out and illustrated.

*Before JOHNSON, Chancellor, at Sumter, January Term,*1838.

This case came up on an appeal from the decree of - his honor, the chancellor, dismissing the complainant’s bill. The decree which embodies a full statement of the facts in the case was as follows:

“ Thomas Maples had from time to time received from and on account of his mother, large sums of money, and on' a final account and settlement he was found indebted to her in the sum of #9,381, and on the 14th June, 1823, he gave her a bond conditioned for the payment of that sum, and to secure the payment thereof hecgave her a mortgage of certain slaves, Jacob, Joe, Peter, Jim, Jerry, Mary, Rate, Pris, January, Charles, Clarissea, big Jim and Sam. This mortgage was duly recorded in the September of the same year.

On the 2d of July, 1824, the said Elizabeth Maples made and executed her last will and testament, the fourth clause of which is in the following words, viz: “ I *lend*all the rest and residue of my estate, both real and personal, w'hich I now, or may hereafter have, make or acquire in any way or manner whatsoever, and I also *lend*the whole of which I hold by bond and mortgage from my son, Thomas Maples, dated the 14th day of June, 1823, to my son Thomas Maples, *during his natural life,*and *at his death*I give and bequeath the whole of the same to the *lawful issue of his body forever;*and *should he never have lawful issue,*then the samé to be *at his disposal by will or otherwise,*forever, embracing the whole of my estate, except what I have given to my grand children ; ” and appointed the said Thomas Maples her executor. She died in 1825, and her will was duly proven in February, 1826.

Thomas Maples was at the time largely indebted to other persons, and he afterwards became still further involved; for these *302debts judgments were obtained against him, and in the end these negroes *were*all *sold*under *execution,*and purchased by the defendants, each purchasing on his own account one or more of the negroes.

The complainants, M. E. & M. Maples, are the infant children of Thomas Maples, and they claim to be entitled to a vested remainder in the negroes and to the right of possession on the death of Thomas Maples. They charge in their bill that some of the negroes have already been removed out of the limits of the State and that there is reasonable ground to believe that there is danger of the others also being removed and so disposed of that they will be defrauded_of their rights, and they pray that the defendants may be restrained from removing those in their possession out of the jurisdiction of the court, and that they may be compelled to give security for their forthcoming, together with their present and future issue and increase, on the death of the said Thomas Maples. The fact of the execution of the bond and mortgage, and of the execution of Mrs. Maples’ will, are not contradicted, and the defendants rest their defence mainly on the ground that the mortgage executed by Thomas Maples to his mother, was fraudulent and void as to his creditors.

The evidence of Mr. James, who was sworn on the trial, left no doubt on my mind that the debt for which the bond and mortgage was given, was bona fide, and that the property mortgaged was not more than an adequate security. Thomas Maples had received large sums of money, on account of his mother, and had disposed of the proceeds of her share of the joint crops made by them, to his own usé. Many of the circumstances are particularly known to this witness, and he assisted them in making the settlement which *left him*the debtor to the amount of the bond. And the circumstances out of which the defence arises, may be thus concisely stated.

Thomas Maples was the only surviving sop of a very indulgent mother who did not attempt to control him in any thing. He lived in the house with her and worked the plantation on which she lived, jointly, and with his own and her negroes, consisting of an equal, or perhaps a greater number than his own. He sold and *303disposed of the whole proceeds of the crops to his own use, both before and after the execution of the mortgage, up to the. time of her death. He was exceedingly prodigal, and in a fair way to waste his whole estate. He was much indebted to Mr. James; the witness knowing his indebtedness to his mother, advised her to secure herself by a mortgage. In adopting this course “ *witness thought*the mother had in view not only to secure herself, but to secure it for him against his prodigality, and to save it for him in the end. *Did not think*she expected to get any money from him, but for her absolute necessities. Thomas Maples entered into it with reluctance, and witness,' acting for the mother, represented to him that she ought to be secured and might resort to suit unless he gave the mortgage. *Thinks*Thomas knew that his mother never intended to collect the money from him, but intended to save it for his benefit after her death.” The mortgage covered all the property of which Thomas Maples was possessed at the time.

In support of the allegation of fraud, the defendants rely on the circumstances—

1st. That Thomas Maples retained possession of the property mortgaged, after the condition was broken.

2d. That it covered all the property of which he was possessed, notwithstanding he was at the time otherwise largely indebted.

3d. It is assumed, that in giving preference to his mother, Thomas Maples expected to derive, and she intended to confer, a personal benefit on him, and therefore it is insisted that the mortgage is fraudulent and void.

The two first grounds of the defence whether taken separately or together, is not evidence of moral fraud, for these circumstances may well exist consistently with perfect fairness. One creditor has the right to secure his debt, to the exclusion of others, if the debtor consent, and of course the right to take a lien on all the debtor’s property, if that be necessary. The fact that all the debtor’s property is included in a mortgage and thát he retained possession after a sale, or contrary to the terms of a mortgage, or after a condition broken, frequently enter into fraudulent transactions and are therefore suspicious circumstances ; but it never has been held that they were conclusive evidence of fraud, and in this *304instance they are sufficiently explained. The mortgage is not before me, and I do not know whether it contained any covenant that Thomas Maples should retain possession of the negroes, nor do I regard it as -very material to the question in hand. In the first place, it does not follow, from the circumstances, that he did retain the possession after the execution of the mortgage. He lived in the house with his mother, and superintended the plantation on which they were employed. He had the direction and control of these and all the other negroes which belonged to his mother, and worked them together’. Both appear to have exercised over them such control as their situation and the relation in which they stood to each other, required ; and it is a familiar rule that if the possession is vacant, it enures to the benefit of him in whom is the title, and the same rule must obtain, when, as in this case, the possession is in common with others. Conceding, however, that Thomas Maples had the exclusive possession even after condition broken, that is not conclusive evidence of-a fraudulent intent, but a circumstance that may be explained. Permitting the mortgagor to remain in possession of the mortgaged property, although there is no covenant to that effect, is too common here to excite suspicion. Mortgages are intended as a mere security, and it is very unusual for the mortgagee to insist on the possession of the property *‘,*and if, on the instant his debt becomes due, he is bound, on the pain of forfeiting his security, to take possession of the property or foreclose the mortgage, it might operate injuriously not only to the debtor, but also, peradventure, to the creditor. It is only a circumstance which enters into the question of fraud, and would operate in proportion *to the*time *to*which the indulgence had been extended, Gist v. Pressly, 2 Hill’s C. R., 325. This mortgage bears date 14th June, 1823, and was payable, I think, at one year. Mrs. Maples died in 1825, so that the bond was due one year, perhaps, before her death; and this circumstance standing alone, when considered with reference to the relation in which the parties stood, ought not to be considered conclusive evidence of fraud.

It has been before observed, that the evidence left no doubt about the bona fides of the debt for which the bond and mortgage *305were given, or that the property mortgaged was not more than sufficient security, and there is as little question that Mrs. Maples’ purposes were the same precisely that she expressed to the witness, Mr. James; her son had expended for her a large amount of money, , and was otherwise greatly indebted. In his prodigal habits she foresaw that poverty and want must overtake him. The impulses of the mother’s heart must have suggested the propriety of averting the consequences, if it could be done consistently with the rights of others. The bond and mortgage were the means resorted to in pursuance of the intention of securing the property for him in the end, and generally, to guard against his own imprudent habits. The will before referred to, was the consummation' of her intentions. Now, it does not appear from the evidence, that there was any express agreement that she should not demand payment of the debt, or to secure the property ultimately to his use, nor was that qestion pressed on the witness, for what reason I am not aware; but the son, says Mr. James, was aware that was her intention, and whether derived immediately from her, or through another channel, is perhaps immaterial. That it operated, however, as an inducement for him to give the bond and mortgage, is, I think, reasonable, if not a necessary inference. It could not have been otherwise unless he had been so reckless as to be wholly indifferent to his own necessities, and that consideration probably overcame the repugnance which he at first manifested, to enter into the arrangement. But that Mrs. Maples contemplated a fraud, would hardly gain credit with the most sceptical. As relates to herself, all the circumstances are so natural, so entirely in accordance with the feelings of the mother, that designed fraud might as well be attempted to be extracted from the manifestations of her affections in any other manner. The negotiations between them were carried on through Mr. James, who is above, the suspicion of participating in a fraud. There was no secrecy — no concealment; the mortgage was promptly recorded in the proper office and accessible to all, and yet it is insisted this is a legal fraud, and avoids the mortgage.

This subject has been frequently, and so recently, under the consideration of our courts, and all its bearings so fully and ably *306discussed, that little remains to be said that could throw further light on the general doctrine; Smith v. Henry, 3 Bail. 118,• same v. same, 1 Hill. 16; Gist v. Pressly, 2 Hill. C. R. 325; Jones & Briggs v. Blake, ib. And whatever doubts I may entertain about the policy and propriety of some of the rules laid down, I feel bound by their authority. I have never been able to see clearly, the propriety of the distinction between moral and legal fraud, and my judgment has always been opposed to enlarging the boundaries of constructive frauds, for there is scarcely any circumstance or combination of circumstances, short of actual fraud, and from which fraud is implied, that may not enter into the most fair and upright transaction ; and my own experience is, that a great deal of fraud is committed in carrying out the rules which have been prescribed for its prevention. Take for example, the rule laid down in Smith and Henry, 1 Hill. 22, that if the debtor stipulates with his creditor for any benefit to him, it is fraud in both. Now, it was well remarked by the counsel for the complainants, in the course of the argument, that the law gave to one creditor, with the consent of the debtor, the right to make his debt secure, even to the exclusion of other like meritorious creditors, and why should he not be permitted to purchase that preference at any price that he should see fit? Where is the fraud if he release one-half of the debt, to purchase security for the other? If the security consists in the absolute sale or mortgage of property, what wrong is done to other creditors, if he permit the debtor to retain the property fora limited time, as a reward for that preference? Other creditors are in no worse condition on that account, than they would have been if the creditor had taken possession of the property ; on the contrary, the mere use of the property, if it be productive, is to that extent calculated to increase the means of the debtor. And on examination, it will be found that many of the other rules are calculated to work equally injuriously in particular cases. The only support which these rules have, is derived from the consideration that frauds are usually practised in secret, and the intention is judged of by those circumstances which usuallyand necessarily enter into fraudulent contracts. I have, however found it very difficult to bring my mind to the conclusion, that *307any combination of circumstances ought to be regarded as conclusive evidence of fraud, when opposed to positive proof of fairness, but I feel concluded by the rule in Smith and Henry, that *if the debtor stipulate for a beTiefit to himself,*it is fraud; and without recapitulating the circumstances of this case, I think they lead irresistibly to the conclusion that such was the intention here.— Mrs. Maples *avowed*it, and her will is itself a manifestation of the intention; and although it was prompted unquestionably by natural affection and founded in the purest motives, the effects are precisely the same, as to other creditors, as if it had originated in the basest fraud, and that Thomas Maples acted under the influence of a probable benefit to himself, admits, I think, of no doubt. It is therefore ordered, that the complainants’ bill be dismissed.”

[copy op bond.]

*“State of South-Carolina.*— Sumter *District.*

Know all men by these presents, that I, Thomas Maples, of the district and State aforesaid, am held and firmly bound to Elizabeth Maples, of said district, in the penal sum of $19,963 66 cents, to the payment of which sum, I do bind myself, my heirs, executors and administrators, unto the said Elizabeth, her heirs, administrators and assigns. Witness my hand this 14th day of June, A. D. 1823. The condition of the above bond is such, that if the above bound Thomas Maples shall well and truly pay to the said Elizabeth Maples, $9,981 63 cents, on or before the 1st day of January next ensuing the date, then the above obligation to be void, else to remain in full force and effect.

Thomas Maples, [l. s.]

Signed, sealed and delivered, in the presence of—

*Matthew James.*

*Swepson Cox.*

[copy MORTGAGE.]

*“State of South-Carolina.*— Sumter *District.*

Know all men by these presents, that I, Thomas Maples, have this day bargained, sold and released, and by these presents do *308bargain, sell and release, convey and deliver, unto Elizabeth Maples, the following personal property: One negro man named Jacob, aged 52 years ; one do. Joe, aged 35 years ; one boy Peter, aged 16 years; one do. Jim, aged 11 years; one do. Jerry, aged 12 years; one negro woman named Mary, aged 18 years; one do. Kate, aged 38 years; one boy named Pedro, aged 10 years ;. one do. named January, aged 10 years; one do. named Charles, aged 7 years; on„e girl,.Clarissa, aged 5 years ; one man named Big Jim, aged 28 years; one old man, Sam, aged 75 years, the said negro slaves and their increase, and also two wagons and gear, five head of horses, three mahogany tables, one celerett, and one Jersey wagon, for and in consideration of #9,981.63 cents. To have and to hold the aforesaid property unto the said Elizabeth Maples and her heirs forever, upon the following condition: Whereas the said Thomas Maples has this day, viz.'the 14th day of June, in the year of our Lord 1823, given his penal bond to the said Elizabeth Maples, in the sum of #19,963 66 cents, conditioned for the payment of #9,981 83 cents, on or before the 1st day of January, in the year 1824. Now if the said Thomas Maples shall well and truly perform and pay the condition of the said bond, then the above and within bill of salé to be void, else to re-mainpn full force. As witness my hand and seal, this 14th day of June, A. D. 1823. Thomas Maples, [l. s.]

Signed, sealed and delivered, in presencéof—

*Mfltthew James.*

*Swepson Cox.”*

The complainants appeal from the decree of the chancellor, by which the bill is ordered to be dismissed, and move to reverse the same, and that the prayer of the bill be gi-anted upon the following grounds, to wit:

1. Because thp transactions between Thomas Maples and his mother, in relation to the mortgage and the possession of the slaves, were fair and honest, and clear of actual .fraud, ahd so proved to the satisfaction of the chancellor; and the ends of justice cannot be subserved by sacrificing the truth'and justice of the case to the *309supposed advantages of an inflexible rule, by which constructive fraud is imputed in the face of positive proof to the contrary.

2. Because it was not proved that Thomas Maples was induced to give the mortgage in consequence of any agreement on the part of Mrs. Maples, that he should retain the possession of the property, or that she would not urge the debt; and because if such agreement was proved, that does not constitute fraud.

3. Because the retaining possession by the mortgagor of personalty, after condition broken, is not fraud *per se,*and incapable of explanation.

4. Because such retaining possession by the mortgagor, after condition broken, is sanctioned by the immemorial practice of Carolina, and is not, therefore, a circumstance of fraud.

5. Because only two of the negroes purchased by John Durant are embraced in the mortgage, viz. Kate and Clarissa, and the principles carried out by the decree apply only to them. The bill ought, therefore, to have been sustained as to the remaining slaves purchased by him, which slaves Thomas Maples claimed only by virtue of the will.

M. E. Maples & M. Maples *v.*Jacob M’Clendon & Thomas Maples.

In this case, which was tried with the former, the judgment of the court is substantially the same. The chancellor dismissed the bill.

The complainants appealed and moved to reverse the decree upon all the grounds taken-in the last case except the fifth.

Curia, per Dunkin, Ch.

The principle that a debtor has the right to give a preference among his creditors, is too well settled in this country .to be now questioned, even were the court less satisfied than they are of its correctness. In the decisions on the subject, certain leading modifications have been introduced, which are scarcely less well understood than the rule itself. In a written assignment of this character, any provision which secures an undue advantage to the debtor or assignor, has been held to vitiate the instrument, so far as the rights of other creditors were hin*310dered and delayed. The rule applies at least with equal force to the case of a parol assignment, or transfer for the purpose of securing a preference. The court, in Smith v. Henry, only determined that on a sale to pay a pre-existing debt, the continuance of the vendor in possession, authorized the legal presumption of a secret agreement, or stipulation for this undue advantage, not to be rebutted by evidence, and was fraudulent, per se.

The chancellor who heard this cause at the circuit, dismissed the bill contrary to his own opinion, both of the law and facts, in deference t.o the authority of Smith & Henry. The only inquiry for the consideration of this court, is whether the decree pronounced is a necessary or legitimate inference from the law of that case.

It is proper to keep in mind, that Smith & Henry does not proceed on *the*ground, that the possession of the vendor, after a sale of chattels, is per se, fraud. Such a principle, it is believed, could not at this day be maintained. If the possession of the vendor be consistent with the character of the transaction, or if the sale be not to secure a pre-existing debt, but in consideration of a, price actually paid, or, as in Briggs & Jones v. Blake & Wife, 2 Hill. 629, where the vendor was to pay hire — in all these and other instances which might be adduced, it has been held, on sound principle, that the possession of the vendor, after the sale, did not invalidate the transfer. Indeed, in the case of Smith & Henry, p. 22, the court distinctly declare, “that it would not do to say, that the retaining possession by the vendor, after a sale, of itself constitutes fraud,” and the distinction is then made on which that decision is founded, and which has been already indicated. Now when a debtor sells his property to one of several creditors, in satisfaction of his debt, the creditor becomes *the*owner of the property and the debt is gone. If instead of enjoying that which is his own, the creditor permits the debtor to have the use of the property without hire or reward, this is inconsistent with the ordinary conduct of men, having a moderate regard to their own interests; it secures an advantage to the debtor, to which he' is not entitled, by giving him an-interest in the property which cannot be rendered available to his other creditors, in satisfaction of their *311demands. It creates a presumption of unfair dealing, that the preference which had been given, was the price of this undue advantage. It may well be presumed, that property which the vendor continued to enjoy, and of which, for all substantial purposes, the vendee was only to be the riominal owner, was not sold at its full value. But, as is said in Smith & Henry, the conditions of such sales are usually known only to the parties, and are incapable of proof. The law supplies the defect, infers from the circumstances the existence of the corrupt agreement, and attaches to the transaction the character and penalty of fraud.

Are these reasons applicable to the case of a mortgage ? It has been already adjudicated in our own courts, (notwithstanding very high English authority to the contrary,) that until condition broken, the possession of the mortgagor is no evidence of fraud. It is well said in Gist v. Pressley, 2 Hill. C. R. 328: “It is the common understanding and practice of the country, that possession shall not be taken till condition broken. It is a conditional sale, to provide for satisfying.a debt, and, in conscience and equity, the party is not entitled to his satisfaction until the debt is due.” Is then the improbability so violent, that a mortgagee would honestly permit the day to pass without enforcing his mortgage— does the mortgagor, continuing in possession after condition broken, .thereby acquire such gratuitous and undue advantage, that the law infers fraud between the parties, and will admit of no explanation ? That is the isolated question for the determination of the court. — And it cannot be denied, that expressions in the books are not wanting, which would lead to the conclusion, that there is no difference between a mortgage of chattels, after condition broken, and an absolute sale. But let us apply the reason of the rule in Smith & Henry, to the case of a mortgage after condition broken. What undue advantage does the debtor derive, and what loss does the creditor, in consequence of the possession not being changed immediately on the forfeiture, so that it should be presumed the result of a corrupt agreement ? The debt of the mortgagor is secured, not extinguished, by the mortgage. Although the mortgagor remains in possession, the interest on his debt continues to accumulate, and is a compensation to the mortgagee for *312the use of the property, or rather, for his forbearance to enforce his mortgage. So far from being a disadvantage to his other creditors, the continued possession of the mortgagor may, and probably will afford him an opportunity of removing his embarrassments. At least in nine cases out of ten, such is the object and motive of both parties, and such is the conviction of his other creditors, and however a contrary course might place beyond question the integrity of the transaction, a forced sale of .negroes under a mortgage, rarely benefits any other creditor than the mortgagee. But, above all, if the other creditors suspect collusion, or that their rights are affected by the indulgence granted to the mortgagor, it is always in their power to put an end to the enjoyment of this collusive, or merely prejudicial possession of the mortgagor, by subjecting the property to sale under execution, and appropriating the proceeds, after sátisfaction of the mortgage, to the payment of their own debts. If at such sale the mortgagee becomes the purchaser, and the mortgagor continues in possession, the transaction then becomes obnoxious to the rule of Smith & Henry. Perhaps the court might here stop, when it is remembered that in England, in New-York, in Massachusetts, and in many other States in the confederacy, the rule of the earlier cases has been gradually relaxed; the “stern doctrine,” as it has been termed by Mansfield and Buller, has been ameliorated and modified, and it is now conceded by the ablest and most uncompromising advocate, of what he designates “ as the conservative principle in our jurisprudence,” that the rule of throwing the burthen on the vendee or mortgagee, but permitting him to rebut the presumption by proof, “ is evidently as high toned as any that the courts of justice in this country, can by a permanent practice sustain.” 2 Kent. 528.

This court will not be charged with being behind the age, when they express an indisposition to enlarge the class of cases, in which fraud shall be a presumption of law, and not an inquiry to be determined by testimony. The case of Smith v. Henry, is not this case; nor is the decision, dismissing the bill, deemed a necessary .inference from the principles in that case adjudicated.

*313It may not be irrelevant to add, that some prominent distinctions exist between a pledge of goods in England and a mortgage of slaves in South-Carolina, and the reasons of the rules applicable to the one, have no existence in relation to the other. The usual subjects of mortgage in England and other countries, and on which the cases have arisen, are furniture, merchandise, &c., articles which are consumed in the use. But slaves in South-Carolina, partake more of the nature of realty, and in the laws of some of the southern States, are so regarded. Although the transfer of this species of property does not require the solemnities which accompany a conveyance of land, yet the possession is, by no means, so unequivocal a criterion of title as in other chattels.— The law which protects them from distress for rent, when found on the premises of *another, is*only one evidence of the recognized distinction which exists.

But many of the mischiefs, which in other countries arise from mere ostensible ownership, are obviated by our registry laws.— As early as 1692, it was provided 'that the mortgage of chattels, first recorded, should have a priority, and, although the omission to record does not vitiate the instrument, yet the danger of a junior mortgage, and the suspicion which often attaches to the want of recording, have given to the provisions of the statute, in the understanding and practice of the country, an efficacy almost imperative. It has been repeatedly adjudged, that recording was notice. In Thayer v. Cramer, 1 M’Cord. Ch. Rep. 395, it was held to preclude a purchaser of lands from the mortgagor, to avail himself of the statute of limitations. In the subsequent case of Thayer and Davidson, (not reported,) which was a mortgage of a slave, it was determined by Chancellor Harper, on full consideration, that possession by a purchaser from the mortgagor, for four years after condition broken, protected his title by the statute of limitations, a protection for which, it would seem unnecessary to resort to the statute, if the possession of the mortgagor, after condition broken, rendered the lien void in law.

In the case under consideration, the good faith of the transaction is abundantly vindicated in the decree of the chancellor.— The justice of the debt was fully proved — the mortgage was im*314mediately recorded, and, at the sale, express notice was given to the defendants, and the price bid, was in reference to the defect of title. The purchasers now insist upon holding the property discharged of the mortgage, and their claim has been sustained. On the validity of the limitation in the will of Mrs. Maples, the court are satisfied with the judgment heretofore pronounced at the circuit.

*W. Desaussure*& *Moses,*for the motion.

It is the unanimous judgment of the court, that the decree made in January, 1838, should be reversed, and it .is so ordered. It is further ordered and decreed, that the defendants be restrained from removing the slaves beyond the jurisdiction of this court, and that they give security to the commissioner in equity for Sumter district, for the forthcoming of the negroes, on the death of Thomas Maples.

Johnson and Johnston, Chancellors, concurred.