#### *The Bank of the State of South Carolina and James Legare, complainants, vs. Peter Gourdin, Isaac Edward Holmes, James Gadsden Holmes, The South Western Rail Road Bank, The Bank of Charleston, South Carolina, Alexander H. Brown, and The Society for the Relief of Elderly and Disabled Ministers of the Clergy of the Independent or Congregational Church in the City of Charleston, defendants. Christopher G. Morris, Trustee of Mrs. Charlotte M. H. Holmes, vs. The Bank of Charleston, So. Ca.*

1. Defendant, I. E. H. sold and conveyed, on the 1st March, 1838, to P. G. an undivided moiety of a plantation and slaves employed thereon, for which, the latter paid, in cash $10,000, in part, executing for the residue seven several bonds, and a mortgage of the property. I. E. H- being indebted to the Bank of the State of South Carolina, in June, 1838, assigned to the Bank, as collateral security, four of said bonds, one of which the bank assigned to L. with the knowledge and consent of I. E. H. for full consideration, on account of the debt due by the latter. For like valuable consideration, I. E. H. assigned a fifth bond, to L. the 7th January, 1839. He also assigned and delivered to the society for the relief of elderly and disabled Ministers &c., the sixth bond to secure the payment of a loan; and it was understood and proved, that in all the assignments of P. G’s. bonds, the mortgage should stand as a security for payment of them in the hands of the assignees. J. E. H. was also indebted to the Rail Road Bank, and on the 5th June 1839, to secure the debt, executed a mortgage to the Bank, of an undivided, moiety of the plantation and slaves retained by him in his sale to P. G, with twenty-five others, by name. When these mortgages were exe-. cuted, I. E. H. said to the President of the Bank, that there was no necessity to record them, as the debts intended to be secured would be punctually paid, who made no reply, but handed them to the cashier. He stated, on, examination, that he understood the silence of the President as an acquiescence in the proposition not to record, and that then the solvency of tho mortgage was not doubted. These mortgages were recorded in the Secretary of State’s office, on the 27th Nov. 1841. I. E. H. being also indebted to the Bank of Charleston, confessed judgment to them on the 27th November, 1839; *fi. fa.*lodged in the sheriff's office to bind the same day. De? fendant, J. G. H. was endorser for I. E. H. to the Bank, against whom they also entered up judgments, and afterward assigneds them to C. G. M., trustee of the separate estate of the wife of J. G. H., in consideration of $5,000, abpirt one thjrd of the judgments. In 1840, I. E. H., and P. G. agreed tq *440rescind their contract, but no formal reconveyance was made; but the fact of the agreement was stated in a writing between them of the 16th Dec. 1841, by which the former released the latter from liability on the several bonds, saving the rights of those to whom they had been assigned. I. E. H., by bill of sale of the 18th Dec. 1840, and recorded in the Secretary of State’s office, the 10th Nov. 1841, conveyed to P. G, in pursuance of the agreement to rescind, twenty-five slaves by name, in consideration of the $10,000 paid him at the purchase; these slaves being embraced in the mortgage of the 5th June, 1839, to the Rail Road Bank. To indemnify P. G. against the assigned bonds, I. E. H. mortgaged to him all the interest he had in the negroes which were included in P. G’s. mortgage to himself. Recorded 10th Dec. 1841. P. G. denied that when this mortgage was executed he had any knowledge of the mortgage to the Rail Road Bank. P. G. jointly with I. E. H. remained in possession of the plantation and slaves till February, 1842, when all the slaves were delivered to the agent of the Rail Road Bank, to be sold in satisfaction of their mortgage, except the twenty-five claimed by P. G. under the bill of sale from I. E. II. After the execution of the bill of sale by I. E. H. to P. G. the former assigned to defendant, J. G. H. all his estate and effects, for the benefit of his creditors.

2. As to the claims of the Bank of the State of South Carolina, the Society for the relief of elderly and disabled Ministers, &c, and complainant, F, they were entitled to all the security which the mortgage from G. to I. E. II. afforded for the payment of their demands.

3. Independent of the agreement when the bonds were assigned, that the mortgage should stand as a security, they were entitled to it without such agreement. *Vide Green*vs. *Hart,*1 J. Rep. 591; Story’s Eq. 308-11.

4. The permitting of the mortgagor of an unregistered mortgage of personal property, to retain possession of the mortgaged property, is not conclusive evidence of fraud, and may be explained.

5. The mortgagee of personal property, having neglected to register his mortgage, is not bound to seize the property, the day the condition is broken, or lose his lien.

6. Regarding the circumstances of failing to register a mortgage of personal property, and take possession, as badges of fraud, the actual fraudulent intention must be established; it must appear that some one would be injured, if the deed or transaction were permitted to stand.

7. The acquiescence on the part of the R. R. Bank, in the request of the mortgagor not to record, coupled with the failure to take possession, not enough to make out a case of fraud, as, from the testimony, it seemed most probable that the request was made by the mortgagor, rather for the purpose of gaining time to extricate himself from his difficulties, than to gain predit on the faith of the mortgaged property in his possession.

*4418. As between the R. R. Bank and the Bank of Charleston, the non-registration oí the mortgage to the former, could not have prejudiced the latter, having given credit before the execution of the mortgage.

9. This court, regarding the mortgage merely as a security, would have restrained the mortgagee from enforcing his security, until he was entitled to have his debt, and as the debt of the R. R. Bank was not due till after the judgment and execution of the Bank of Charleston, it was immaterial to the latter bank, whether or *not the*former took possession of the slaves.

10. The legal title to the moiety of the slaves mortgaged to the R. R. Bank being in them, nothing remaining in the mortgagor, but a mere equity, there was nothing on which the lien of the execution of the Bank of Charleston could attach.

11. The Bank of Charleston obtained judgment against I. E. H, the principal, on certain promissory notes due them; the one entered up on the 27th November, 1839, and the other, on the 11th June, 1842. They also entered up judgments against the endorser on the notes, on the last mentioned date, and about the 20th June following, assigned, by deed, to one M, in consideration of a certain sum to be paid them, the said two judgments, against the indorser, “and all sum and sums of money, and benefit whatsoever, that may be obtained by means of the same, or any execution or executions, issued thereupon, and all the estate, right, title, and interest whatsoever, of the said bank in the same,” and constituted him their attorney irrevocable, to prosecute the said executions. Prior to the 20th June, the Bank had levied on the property of the principal.

12. On a bill filed by the assignee, to enjoin the Bank from enforcing their judgments and executions against the principal, it was *held,*that their claim against him was not extinguished by the assignment of their judgments against the indorser.

13. As between P. G, the R. R. Bank, and the Bank of Charleston, P. G. held entitled to retain the slaves mortgaged by him to I. E. H, in his bill of sale of December 18, 1840.

14. The cases of *Maples*vs. Maples, Rice Ch. 300, and *Gist*vs. *Press*ly, 2 Hill Ch. 318, cited and approved.

The complainants filed this bill on the 1st March, 1842, for an injunction against the Bank Charleston, who had taken in execution certain negroes of Isaac Edward Holmes and Peter Gourdin, and for an account of the amount due on the various liens claimed by the complainants, the Bank of Charleston and the other parties. On the 5th March, 1842, the following order was made in the cause :

*442“It is Ordered, That the Bank of Charleston be restrained from proceeding under their execution against the negro slaves mortgaged by Peter Gourdin to Isaac Edward Holmes, or against the negroes mortgaged by Isaac Edward Holmes to the Rail Road Bank, or against the negroes included in the bill of sale of Isaac Edward Holmes to Peter Gourdin, dated 18th December, 1840. And by consent of the Bank of Charleston, and of each and every of the said mortgagees, and of Mr. Gourdin, *it is ordered*that Mr. Gray, one of the Masters of this Court, be authorized to sell, and do sell, all the said slaves, at as early a day as can be fixed, after giving eight days notice, upon the following terms, (fee. (fee. (fee. And that the amount of the proceeds of sale be retained, subject to the same liens as the property to be sold, and to the further order of this court; the sale being made without prejudice to the rights of parties; and Mr. Gray, in his account of sales, to discriminate between the proceeds of the property subject to the several liens.”

The above order has been executed. James G. Holmes is a party, as assignee of Isaac Edward Holmes, and has no interest, and put in no answer to the bill. Alexander H, Brown was made a party as sheriff only, and has no interest. The bill was taken *pro confesso*against Isaac Edward Holmes. The other parties put in their answers, laying claim to the fund in court, according to their several rights. The Bank of the State of South Carolina, James Legare, and the Society for the Relief of the Clergy, (fee. (fee., claim under a mortgage from Peter Gourdin to Isaac E. Holmes, dated 1st March, 1838, of an undivided part of 151 negroes, and an undivided part of two plantations. The South-Western Rail Road Bank claims under a mortgage from Isaac Edward Holmes to the SouthWestern Rail Road Bank, dated 5th June, 1839, of the residue of the same negroes and others, and an undivided moiety of the same plantations. Peter Gourdin claims 25 negroes, parcel of those mortgaged in moieties to the two banks, by a bill of sale dated 18th December, 1840. The Bank of Charleston, as execution creditors, having judgment against Isaac Edward Holmes, and execution enter» *443ed iti the sheriff’s office, on the 27th November, 1839, claim payment of the balance due them, prior to the mortgage of the Rail Road Bank against Mr. Gourdin. Their priority to the Rail Road Bank is asserted because the mortgage of the Rail Road Bank, though dated 5th June, 1839, was not recorded till 27th November, 1841, and was then altered by erasing the names of the witnesses and substituting others. Their claim to satisfaction out of the negroes conveyed to Mr. Gourdin is asserted, because his purchase was not made till 20th December, 1841, which was subsequent to their execution. Mr. Gourdin claims to hold the 25 negroes discharged from the mortgage of the Rail Road Bank, as well as from the execution of the Charleston Bank, because he is a purchaser for valuable consideration, without notice of the prior Unregistered mortgage of the Rail Road Bank.

At the hearing it was proved that after the execution of the mortgage to the Rail Road Bank, Mr. Holmes said to the President, there was no need of recording it, and the President handed it to the cashier without remark, who locked it up for safe-keeping. That the mortgaged property remained in the possession of Holmes and Gourdin. That the alteration of the deed, by erasing one set of witnesses and inserting another, was made by the deputy register, when the paper was carried to him to be recorded. That the witnesses to the deed were then absent, and their names were erased by the deputy, and at his suggestion Isaac Edward Holmes acknowledged the execution of the deed before two other witnesses, who subscribed their names; and one of them made an affidavit to comply with the requisite proof, in order that the mortgage might be recorded. Neither the Bank of Charleston nor Mr. Gour-din had notice of the mortgage to the Rail Road Bank.

It was proved at the hearing, that the judgment of the Bank of Charleston against Isaac Edward Holmes is grounded on a note of Isaac Edward Holmes, endorsed by James G. Holmes; and that, prior to the 20th June, 1842, the Bank of Charleston had obtained a judgment against James G. Holmes, on the same note, and on that day, in consideration of five thousand dollars, assigned the judg*444ment against James G. Holmes to C. G. Morris. James G. Holmes gave evidence that the Bank of Charleston pressed him for payment, and that he represented to them that he was unable to pay, and that his wife was entitled to some separate estate, under the will of her mother, of which C. G. Morris was trustee, and offered 5,000 dollars, to be paid by Mr. Morris, for an assignment of the judgment against him, which offer was accepted. That Mr. Morris has, since the assignment, given instruction to his attorney to sell all his (J. G. Holmes’s) property; and that he considers the assignment as transfering the whole debt to his wife’s trustee, and meant by his negotiation to get for the trustee the benefit of both judgments, but that nothing was said in the treaty with the Bank, about such intention, or the extinguishment or transfer of the judgment against Isaac E. Holmes.

Mr. Rose, the Cashier of the Bank, proved that they gave credit on their judgment against Isaac E. Holmes, for $5,000, paid on account of James G. Holmes, as the indorser; that the amount still due on the judgment to the Bank is upwards of $7,000; that there was no intention of releasing the debt, but that the amount received on account of James G. Holmes, was treated by the Bank as a payment *pro tanto.*

The cause came on to be heard at Charleston, at the sitting of the court in February, 1843, before his Honor Chancellor Johnson, who delivered the following decree:

Johnson, Ch. On the 1st March, 1838, defendant, Isaac Edward Holmes, sold and conveyed to the defendant, Peter Gourdin, an undivided moiety of a plantation on Cooper River, called Cotebas, and an undivided moiety of one hundred and fifty-one slaves employed thereon, at the price of $45,000. Gourdin paid in cash $10,000, and gave to Holmes seven several bonds, each conditioned for the payment of $5000, at subsequent days, making, with the amount paid, the amount of the purchase money ; and to secure the payment of the bonds, he mortgaged to Holmes the said undivided moiety of the plantation and slaves so conveyed to him.

*445The defendant, Isaac Edward Holmes, being largely indebted to the complainant, the Bank of the State of South Carolina, by promissory notes, in June, 1838, assigned and delivered to the said Bank, as collateral security for the payment of the said notes, four of the bonds of defendant Gourdin, above referred to; one of these bonds the Bank afterwards, with the knowledge and consent of the said Isaac Edward Holmes, assigned and delivered to the complainant Legare, for full and valuable consideration, paid to the Bank on account of the debt due by the said Isaac Edw'ard Holmes; and the said Isaac Edward Holmes, on the 7th January, 1839, for a like valuable consideration, assigned and delivered to the said complainant, Le-gare, another of the said bonds, being the fifth bond. And it is charged in the bill, and sustained by the proof, that in all these assignments and transfers of the said bonds, it was understood and agreed by the said Isaac Edward Holmes, that the mortgage given by defendant, Gourdin, to secure their payment to the said Isaac Edward Holmes, should remain as a security for their payment in the hands of the assignees.

On the 7th July, 1838, defendant, the said Isaac Edward Holmes, borrowed of the defendant, the Society for the Relief of Elderly and Disabled Ministers, <£c., $2000, for -which he gave bond, and to secure the payment thereof, assigned and delivered to the said Society another bond of Gourdin’s, being the sixth bond, and agreed that Gourdin’s mortgage should also stand as a security for the payment of that bond.

The* defendant, Isaac Edward Holmes, being also largely indebted to the South-Western Rail Road Bank, on the 5th June, 1839, to secure the payment of their debt, mortgaged to the said Bank, the one undivided moiety of the plantation Cotebas, and a moiety of the one hundred and fifty-one slaves retained by him in his sale to defendant Gourdin, and also twenty-five other slaves, by name. This mortgage was not recorded in the office of Secretary of State, as required by law, until the 27th day of November, 1841. At the time these mortgages were executed, the defendant, Isaac Edward Holmes, said to the late Col. Blanding, who was then President and Solicitor of the *446Bank, that there was no necessity to record them, as the debts which they were intended to secure, would be punctually paid. Blanding made no reply, but handed them to the defendant, James G, Holmes, who was the Cashier of the Bank. James G. Hol mes, who was examined as a witness, stated that he understood the silence of Col. Blanding as an acquiescence in Isaac Edward Holmes’s proposition, not to record the mortgages, and he did not, therefore, have it done — at the time, no one entertained any doubt about Isaac Edward Holmes’s ability to pay all his liabilities, and save to himself a large estate. He, James G. Holmes, who knew all his affairs, had perfect confidence in it, and he has no doubt Col. Blanding entertained the same opinion, and was probably influenced by that consideration, in the matter of recording the mortgages. The subsequent failure of Isaac Edward Holmes, was the consequence of the rapid and unprecedented depreciation in the value of property, particularly in stocks, of which he owned a large amount.

The defendant, Isaac Edward Holmes, being also indebted to the Bank of Charleston in a large sum of money, confessed a judgment therefor, in the Common Pleas. The judgment was signed on the 27th November, 1839, and a *ji.fa.*to bind, was lodged in the Sheriff’s office on the same day. The defendant, James G. Holmes, was also bound, as the endorser of Isaac Edward Holmes, for the payment of the debt for which this judgment was confessed ; and the bank also obtained and signed judgment against him for the amount. This judgment the Bank af-terwards assigned to one C. G. Morris, the trustee of the separate estate of Mrs. Holmes, the wife of James G. Holmes, in consideration of $5000, being about one-third of the amount of the judgment.

Some time in 1840, Isaac Edward Holmes and Gourdin, agreed, verbally, to rescind the contract made between them for the sale of the undivided moiety of Cotebas, and the one hundred and fifty slaves, but no formal reconveyance by Gourdin to Isaac Edward Holmes has ever been made. The fact of such an agreement is, however, distinctly stated in an agreement in writing, entered into between them on the 16th December, 1841, by which the *447said Isaac Edward Holmes releases Gourdin from all liability on the said several bonds, saving the rights of those to whom they had been assigned and delivered as collateral security for the payment of the debts of the said Isaac Edward Holmes, as above mentioned. In pursuance of the agreement to rescind, the said Isaac Edward Holmes, on the 18th December, 1840, conveyed to Gourdin, by an absolute bill of sale, twenty-five slaves, by name, in consideration of the 10,000 which he had paid in cash at the time he purchased. This bill of sale was recorded in the office of Secretary of State, 10th November, 1841. These slaves are stated in the answer to be a part of the one hundred and fifty-one, named in the mortgage of 5th June, 1889. The said Isaac Edward Holmes, in the further execution of the agreement to rescind, and to indemnify Gourdin against his liability on the assigned bonds, by an informal deed mortgaged to him all the interest which he had in “the negroes specified in the mortgage of the said Peter Gourdin, to me (him) at the purchase of Cotebas plantation and negroes.” This deed was carried to the office of the Secretary of State to be recorded, on the 19th November, 1841, but the Secretary declined recording it, as it had not been proved in the manner required by law. It was then withdrawn, and returned again on the 10th December following, properly proved, and was recorded as of that day. Gourdin denies that he had, at the time of the execution of this mortgage, any knowledge of the existence of the mortgage to the Rail Road Bank.

Notwithstanding the rescission of the contract for the sale of the moiety of the plantation and slaves to Gourdin, he remained in possession of them jointly with Isaac Edward Holmes, until February, 1843, when he delivered to the agent of the Rail Road Bank, to be sold in satisfaction of their mortgage, all the slaves except the twenty-five in number which he claimed the right to retain, under the bill of sale by the said Isaac Edward Holmes.

Some time after the execution of the bill of sale of Isaac Edward Holmes to Gourdin, he (Holmes,) made and executed to the defendant, James G. Holmes, a general assignment of all his estates and effects, for the benefit of his creditors. But James G. Holmes has not answered the bill, *448and I do not understand that any claim is intended to be interposed in that behalf.

The claims of the Bank of the State of South Carolina, of the Society for the Relief of Elderly and Disabled Ministers, (fee., and of the complainant, James Legare, to priority over the claims of the other parties, have not been seriously questioned. Their demands, it will be recollected, are all founded on bonds given by Gourdin to Isaac Edward Holmes, secured by a mortgage of a moiety of Cote-bas, and one hundred and fifty one slaves, to the validity of which no objection has been raised. Independent of the agreement made by Isaac Edward Holmes, with these parties, at the time he assigned the bonds, that the mortgage should remain as a security for their payment, which would, of itself, be binding, the assignees would, as a matter of law, be entitled to that security, without any such agreement. It is so laid down by Spencer, J. in *Green vs.*Hart, in Error, 1 Johns. Rep. 591, affirming the decree of Chancellor Kent, on circuit. See also Story’s Eq. 308, 311.

The conflicting claims of the Rail Road Bank, of the Bank of Charleston, and of Peter Gourdin, give rise to some novel and perplexing questions. The mortgage to the Rail Road Bank was, it will be seen by referring to the dates, the first lien on the property, but it was not recorded until long after the bill of sale to Gourdin for the twenty-five slaves was executed, nor until eight days after it had been recorded, and the Act of 1698, Pub. Law. 3, 2 Stat. at Large 132, entitled “An Act to prevent deceits by double mortgages and conveyances of lands, negroes,” <fec., declares expressly “that sale, conveyance, or mortgage of negroes, goods or chattels, which shall be first recorded in the Secretary’s office, in Charleston, shall be taken, deemed, adjudged, allowed of, and held to be the first mortgage, and good, firm, substantial and lawful, in all the courts of judicature within South Carolina, any former sale or mortgage for the same negroes, goods and chattels, not recorded in the said office, notwithstanding.” This Act strikes me as giving in terms the preference to the recorded bill of sale over the unrecorded mortgage. I attach no importance to the mortgage to Gourdin, of the 18th De*449cember, 1840, because that was not recorded until after the mortgage to the Rail Road Bank was recorded. But if the mortgage to the Rail Road Bank is entirely out of the way, it is equally clear that the judgment and execution of the Bank of Charleston was a lien upon the twenty-five negroes, as well as on the other property of Isaac Edward Holmes, and would be preferred to the subsequent bill of sale to Gourdin. Here, however, we are met with the rule oflaw, which, however questionable the foundation may have been, I must regard as settled, that a *bona fide*unrecorded mortgage has precedence to judgment and other general creditors. (See *Porteus vs.*Barnwell, 2 Hill Ch. Rep. 219, where all the cases are reviewed.) From this general view of the matter, it follows that Gourdin’s claim ought to be preferred to that of the Rail Road Bank, that of the Bank of Charleston to Gourdin’s, and that of the Rail Road Bank to the Bank of Charleston ; so that it is impossible to designate any one of them who ought not to be postponed to some other. To solve this difficulty, it will be necessary to examine more particularly into the nature of these claims.

I will begin with that of the Bank of Charleston. If, as I suppose, the mortgage to the Rail Road Bank was fair and *bona fide,*the legal estate in the slaves was vested in that Bank. All that remained to Isaac Edward Holmes was a mere equity, the right to redeem aechóse in action, on which the lien of the execution of the Bank of Charleston could not attach. Isaac Edward Holmes might have released or assigned it, and the Bank of Charleston would have been without a remedy. The sale to Gourdin, of the twenty-five slaves, was, to that extent, an assignment of his right to redeem, and must be preferred.

For the Bank of Charleston, it is insisted, and ample authorities have been referred to in support of the position, that retaining possession of chattels sold or mortgaged by the vendor or mortgagor, is evidence of fraud, and that the sale or mortgage is void as to creditors and purchasers without notice. Such is unquestionably the general doctrine ; but I need not refer to the numerous cases decided in our own courts, to show that it is only *'prima facie*evh *450dence of fraud, and may be rebutted. That if such possession be rightful and fair, it will not vitiate the sale or mortgage ; as in *Terry vs.*Belcher, where the purchaser of a slave hired it to the seller, at reasonable wages; and I have had occasion before to remark, in some case that has escaped my recollection, that the presumption of fraud ought not to attach to the mortgagor’s remaining in possession of slaves mortgaged, although there should be no such covenant in the mortgage, because it was the common usage of the country. The wages of grown negroes ordinarily are much greater than the interest on their value; and no one who could, by any possibility, avoid it, would be willing to give the use of such slaves for the loan of their money value, and few would be found to lend money on such security who would be willing to pay the ordinary hire of slaves whose services they might not need.

There is another objection opposed to the claims of the Bank of Charleston, which deserves consideration. It had, as before stated, obtained judgments against Isaac E. Holmes, and his endorser, James G. Holmes, for the same debt, and, for a valuable consideration, assigned the judgment against James G. Holmes to C. G. Morris. That is attempted to be put on the ground of a release to James G. Holmes, which could only be regarded as payment *pro tanto*of the judgment against Isaac Edward Holmes. But that is expressly negatived by the evidence of James G. I-Iolmes, who states that it was intended as a *bona fide*pur» chase, and that C. G, Morris has instructed his solicitor to proceed forthwith to make the money out of his effects. From the relations between James G. Holmes and the trus» tee of his wife’s estate, one would *be led to*conclude that this purchase of the judgment against him was intended to relieve him from the danger of an arrest on a *ca. sa.,*or his property from a sale under a *fi.fa.;*but in law, and in equity too., Morris has a clear right to enforce the judgment against him, and it may be that the duties of the trust may require it *of*the trustee, in discharge of his own liability. Now, it is obvious that every dollar which the Bank of Charleston receives or recovers fromlsaac Edward Holmes, is *pro tanto*a discharge and satisfaction of the judgment against James G. Holmes, and in direct violation of the *451contract by which they assigned that judgment to C. G> Morris. The conclusion is palpable, the Bank of Charleston and C. G. Morris cannot be both entitled to the same debt. The Bank has assigned it to C. G. Morris, and it is bound. C. G. Morris is not a party to this bill, and I can make no decree for him. It may be that he Will waive his right in favor of the Bank; but I can make no decree affecting his rights, until he is made a party, which may be done if it is thought necessary.

There is another view of the claim of Gourdin, which strikes me as superseding those of the other parties, both with regard to his right to be protected against his bonds, which had been transferred and assigned by Isaac Edward Holmes, and in his claim to the twenty-five negroes conveyed to him by the said Isaac Edward Holmes.

There Was no incumbrance on the property of Isaac Edward Holmes, at the time he sold and conveyed the undivided moiety of Cotebas, and of the one hundred and fifty-one slaves, to Gourdin ; and no one questions that the legal estate in that moiety vested in him. He has never formally re-conveyed to Isaac Edward Holmes. He agreed to rescind the contract, but it was upon the terms that Isaac Edward Holmes should reimburse him the $10,000 he had paid in cash, and indemnify him against his liabilk ty on the bonds which the said Isaac Edward Holmes had transferred and assigned, as is clearly indicated by the bill of sale of the twenty-five slaves, and the mortgage of the 18th December, 1840. It was, in effect, an agreement oh the part of Gourdin to retain only a part of what he had purchased from Isaac Edward Holmes, and could not be affected by any mortgage made by Isaac Edward Holmes, or judgments obtained against him. Such is the effect of the contract to rescind, if that be valid; if not, the contract to purchase is still in force, and entitles Gourdin to the moiety of Cotebas, and the one hundred and fifty-one slaves.

From these views it follows that the Bank of the State of South Carolina, the Society for the Relief of Elderly and Disabled Ministers, <fec., and the complainant, James Le-gare, are entitled to all the security which the mortgage from Peter Gourdin to Isaac Edward Holmes affords for *452the payment of their several demands. That as between Gourdin, the Rail Road Bank, and the Bank of Charleston, Gourdin is entitled to retain the twenty-five slaves conveyed to him by Isaac Edward Holmes's bill of sale of the 18th December, 1840. That as between the Rail Road Bank and the Bank of Charleston, the claim of the latter is extinguished by the assignment of the judgment against James G. Holmes to C. G. Morris, if that should be insisted on when Morris shall have been made a party; and again, that the mortgage to the Rail Road Bank, taken as fair and *bonafi.de,*although unrecorded, has priority over the judgment of the Bank of Charleston.

The solicitors of the parties will be at liberty to move for the necessary orders to carry this order into effect.

From this decree the Bank of Charleston appealed, and insisted that so much of the decree as declares that the unregistered mortgage of the Rail Road Bank is entitled to payment out of the fund in court, before the execution of the Bank of Charleston, and that the negroes conveyed by Isaac E. Holmes to Peter Gourdin, are not subject to the execution of the Bank of Charleston, should be reversed, for the fo.lowing, among other reasons:

1. That an unregistered mortgage of personal property, of which the mortgagor retains possession, is void against *bona fide*creditors without notice, and more especially against creditors acquiring a lien on the property.

2. That the assignment of the judgment against James G. Holmes, the surety, does not at law release or impair the right of the creditor to enforce his judgment against the principal, for the residue of his debt; and that such assignment ought not, in equity, to have an effect beyond what it has at law, against the true intent and meaning of the parties to the agreement out of which the assignment grew.

3. That the negroes conveyed by Mr. Holmes to Mr. Gourdin, were bound in his hands by the execution of the Bank of Charleston, and not by the mortgage of the Rail Road Bank; and that the Bank of Charleston has equal equity with the other party. That the Rail Road Bank, and the Bank of Charleston, were severally actors, and the *453question was between them severally and Mr. Gourdin; and that, as the Bank of Charleston has the right at law, this court should not interfere to divest them of it.

*Petigru &*Lesesne, for appellants.

*Mr.*Bailey, for the Bank of the State and Mr. Legare.

*Mr. DeSanssure,*for the Society for the Relief of Elderly and Disabled Ministers.

*Mr. Mazyck,*for Mr. Gourdin.

*Mr. Campbell and Mr.*Memminger, for Rail Road Bank.

In the second case stated, which was a bill for an injunction, the facts will be fully understood from the decree of his Honor, Chancellor Dunkin, before whom the case was tried, at Charleston, June Term, 1843.

Dunkin, Ch. Isaac Edward Holmes was debtor to the Bank of Charleston, on certain promissory notes, endorsed by James Gadsden Holmes. On the 27th November, 1839, judgment was entered against the maker for $32,162, and on 11th June, 1842, for $1,622. On the day last mentioned, judgments were entered against the indorser, one for $16,736, the other for $1,622-,

Prior to the 20th June, 1842, the Bank had levied on the estate of I. E. Holmes, and at the time of instituting these proceedings, his property was advertised for sale by the sheriff of Charleston district.

The allegation of this bill is, that on the day last mentioned, the Bank, in consideration of $5000, paid by the complainant, assigned to him the judgments thus obtained against the endorser, James G. Holmes; that he “had frequently applied to the Bank, and requested them to desist from attempting to enforce their aforesaid judgments against the said Isaac E. Holmes, as such an act was in direct violation of their contract with him, (the complainant) upon the assignment to him of the judgments against the said James G. Holmes.”

This comprises the facts of the case. All the other statements of the bill are only arguments arising out of the construction of the deed of assignment, or deduced *454from the judgment pronounced by the Chancellor in another cause.

On these facts and allegations, a motion has been submitted, on the part of the complainant, for an injunction to restrain the defendants from enforcing or collecting the judgments against I. E. Holmes, on the ground, that the complainant having, by the assignment, become the purchaser of the right to demand and receive the whole amount of the judgments against James G. Holmes, the collection by the Bank of the whole or any part of the judgments against Isaac E. Holmes, would either totally defeat, or to that extent diminish, the right of the complainant on the judgment against James G. Holmes; that the Bank could, rightfully, do no act impairing the effect of their contract with the complainant, and that they should, therefore, be perpetually enjoined from enforcing their judgments against Isaac E. Holmes, inasmuch as by the true construction and effect of the assignment of the judgments against James G. Holmes, their judgments against Isaac E. Holmes were extinguished.

Whatever may be the rights of the complainant, they are derived entirely from the deed of assignment, and must depend on the interpretation to be given to that instrument. It is due to this court, not less than to the Chancellor who heard the case of the Bank of the State against Gourdin and others, to premise that the testimony as to the previous negotiation with the Bank of Charleston, which is recited in the Chancellor’s decree, forms no part of this case. Whatever may be the effect of the matters therein detailed, they constitute no portion of the complainant’s allegations, and cannot now be considered.

The only inquiry is, as to the effect of the deed of the 20th June, 1842.

That instrument, after reciting that the Bank had, on the 11th of June, obtained two judgments against James G. Holmes, for the several sums of $16,736, and $1,622, in consideration of $5000, paid by the complainant, assigns to him, without recourse, “ the said two judgments, and all sum and sums of money, and benefit whatever, that may be obtained by means of the same, or any execution or executions, issued thereupon, and all the *455estate, right, title, and interest whatever, of the said Bank in the same,” concluding with the usual authority, in the name of the Bank, but at the cost of the assignee, to prosecute executions to recover or enforce the same.

Gathering the meaning of this instrument from the language used, the object would seem to be, to transfer to the complainant all the rights, legal or equitable, which the Bank enjoyed by virtue of the judgments against James G. Holmes. It is difficult to illustrate the proposition, if it required illustration. After the execution of the assignment, the Bank could be permitted to do no act which would, in any manner, restrict or impair the rights which they had thus transferred to another. What then were the rights of the Bank'?

At law, they were at liberty to proceed at the same time on the judgments, both against the maker and endorser. Against the maker, they had already exercised this right, by levying on his estate, and they were about to proceed on the judgments against the endorser, when this assignment was executed. At law, the complainant now enjoys the same right. The levy by the Bank, under the execution against Isaac E. Holmes, in no way interferes with the complainant’s right to recover satisfaction of the judgments against James G. Holmes, which have been assigned by the defendants. In that form, the transactions themselves are regarded as distinct, and there is no necessary connection in the modes of enforcing the judgments pronounced on them. The complainant’s legal rights, as well as his legal remedies, remain unaffected by the proceedings of the Bank.

But in this court it is different. Equity looks not only to the character of the original transaction, but also to the effect of the assignment to the complainant, in reference to that original transaction. Here, James G. Holmes is regarded merely as a surety. He was bound for the default of his principal — no more, and no further. Under the judgments against him, the bank were authorized to receive all that should not be collected from Isaac E. Holmes. If, in the enforcement of their legal remedies against both, it should appear that satisfaction had been received from the principal, this court would restrain further proceedings against *456the surety. It might restrain proceedings under other circumstances, to which it is not necessary now to advert. Such was the relative position of the bank and James G. Holmes, in this court. These equitable rights of the bank passed to the complainant under the assignment of the 20th June. Whatever amount of their debt the bank should fail to recover from Isaac E. Holmes, they had a right to demand and receive from James G. Holmes. If they made the money at law, under both executions, they could receive but one satisfaction, and the complainant will have bought nothing. But whatever the bank fails to collect from Isaac E. Holmes, the complainant will be entitled to recover from James G. Holmes, and in proportion to the amount of the deficiency of Isaac E. Holmes, and the ability of James G. Holmes to makeup that deficiency, will the contract of the complainant be more or less advantageous. But with this the court has nothing to do. It is the province of the court to construe and enforce, but not to make, contracts.

The court has looked to nothing but the instrument exhibited with the bill. If the original agreement of the parties was for a transfer of the whole debt, or to get for the trustee the benefit of both judgments, it would be quite competent for this court, and would be its duty, on a proper case made and established, to reform the instrument so as to carry into effect the intention of the parties. To use the language of Judge Washington, in *Hunt vs. Rousma-*nier, 1 Peters, “The insufficiency of this instrument, to effect that object, would furnish a ground for the interposition of a court of equity, which the defendants could not easily have resisted.” But it is not alleged, that the original agreement was for any thing more than an assignment of the judgment against James G. Holmes. Of this the complainant has the benefit, wTith whatever rights, legal or equitable, attached to them in the hands of the defendants.

These are the conclusions to which the court arrived on the argument of this motion, and which subsequent consideration has served only to confirm. But the embarrassment of the court, as to the course to be adopted, is not removed. In the case of the *Bank of the State vs. Gourdin**457*el al.,*the Chancellor has expressed an opinion, that the effect of the assignment to the present complainant was to extinguish the judgments against Isaac E. Holmes. It is true, that case is not only *res inter alios*acta, but testimony was beard in regard to this very transaction, which cannot be now considered. It cannot, however, be disguised, after a careful perusal of the decree, that the Chancellor would have probably come to the same result, without reference to this testimony. That judgment is subject to the revision of a higher tribunal, and, if erroneous, will be corrected. Certainly this court would do no act — would have no authority to do any act, founded on any doubts it might entertain of the correctness of that adjudication. But is this court at liberty, in another case, and at the instance of another party, to interpose its' authority, and restrain proceedings in the ordinary tribunals against a defendant who is confessedly not to be injured, contrary to the convictions of its judgment, and in deference to the opinion of a magistrate of co-ordinate power, whose opinions are always entitled to the profoundest respect and consideration 1 If it were a matter of inclination, or discretion, this court would not hesitate. Having adopted, reluctantly, a different opinion as to the duty of the court, it remains only to say, that in the judgment of this court, the complainant has not presented a case for the interference of this court, and that the motion for injunction must be discharged.

In July, 1843, the following decree on the plenary hearing, was pronounced by Chancellor Dunkin.

Dunkin, Ch. On hearing the application for an injunction, the views of the court were fully expressed in the interlocutory order dismissing the motion. Since that time the answer of the defendants was filed, and the cause submitted for adjudication.

It is not perceived that the matters set forth in the answer can affect the result. Whether the contract with the complainant be regarded as a payment on I. E. Holmes’s debt, and a release of the suretv from further liability, or as a *458purchase by the complainant of the right to recover from James G. Holmes, all that the defendants could recover, to wit, whatever they should fail to recover from the principal, the result is the same. In either aspect, the conduct of the defendants is no violation of their contract with the complainant, or in derogation of his rights under the assignment,

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

The complainant, G. G. Morris, trustee, appealed from these decrees, upon the following grounds, viz:

1. That the claim of the Bank of Charleston against I. E. Holmes, on their judgment, was extinguished by their assignment to. the complainant of their judgment against James G- Holmes; and that the said bank has no further right to enforce their judgment against Isaac E. Holmes.

2. That his Honor ought to have granted a writ of perpetual injunction, to restrain the Bank of Charleston from enforcing the judgment and execution against the said Isaac E. Holmes.

*II. A. DeSaussure,*for the appellants.

*Petigru & JLesesne,*contra.

Curia, *per*Harper, Ch.

The first ground of appeal relates to the validity of the mortgage to the South Western Rail Road Bank. The ground taken is, that “an unregistered mortgage of personal property, of which the mortgagor retained possession, is void against *bona fide*creditors, without notice, and more especially against creditors acquiring a lien on the property.” I understand from this, and the course of the argument, that it is contended on behalf of the Bank of Charleston, that if the mortgagee of an unregistered mortgage of personal property permits the property to remain in the hands of the mortgagor, the mortgage is absolutely void ; and this not by virtue of the enactment of any statute; for it is admitted that the Act of Assembly of 1698, (the only statute relating to mortgages or conveyances of personalty,) does not render them void for \yant of registration. Nor does the argument resf *459on any rule of law, apart from the question of fraud. It must mean, then, that the permitting of the mortgagor of an unregistered mortgage to retain possession of the mortgaged property, is such conclusive evidence of fraud as can neither be explained nor rebutted; that it is an artificial rule of evidence, by which certain conclusions are drawn from certain appearances ; as in the instance of a volunta^ ry conveyance by a person indebted at the time, and who afterwards becomes insolvent. This is concluded to be fraudulent, without any enquiry into the actual fraudulent intention. In the absence of any such artificial rule, it is necessary that the actual fraudulent intention should appear, in order to vitiate the instrument; as in the instance of a voluntary conveyance alleged to have been made with a view to future indebtedness.

I am not aware of any such artificial and positive rule; The cases quoted to establish it, of *Ryall vs.*Rolle, 1 Atk. 165; of *Worseley and*DeMattos, 1 Burr. 467, and others* were determined on the positive terms of the English statute of Bankruptcy, 21 Jac. 1, C. 19, which provided that if a person having conveyed his goods shall, at the time of his bankruptcy, be found in possession of such goods, by permission of the owner, he shall be reputed and adjudged the true owner. It is true that the subject is fully considered with reference to the common law, and the statute of 13 Eliz.; but with reference to these, it is not said that there is any such positive rule. It is said in *Ryall vs. Rolle,*after a review of the cases- — “from all these cases, it appears that upon the construction of the statute 13 Eliz., there is no ground to make a distinction between conditional and absolute sales of goods, if made with intent to defraud creditors; but a *court or jury are left to consider this from the circumstances of the case.”*

It is certainly established by the case of *Maples vs. Maples,*Rice Ch. 300, that the retaining possession of mortgaged, property, even after condition broken, is no conclusive evidence of fraud. It is true that, in that case, the mortgage was recorded very soon after its execution, but this is only mentioned incidentally, as one of the circumstances in deciding on the *bona fide*or fraudulent charac*460ter of the transaction. The case of *Gist vs. Presley,*2 Hill Ch. 318, was to the same effect, though the decision in that case may be somewhat modified; and I am inclined to think rightly, in case of a mortgage — with respect to the distinction between the mortgage for a previously existing debt, and for one created at the time. It does not appear from the report, whether the mortgage was regis-teted or not, nor was the case considered or decided with any reference to that circumstance. It is said, however, that the retaining of mortgaged property, even after condition broken, is different from the case of an absolute sale. “In the latter case, it is the common course that possession shall be transferred with the title, and the departure from the common course is to be accounted for. But it is not the common course that mortgaged property should be seized the moment the condition is broken.” It is said that such retaining of possession may be a badge of fraud, though not so strong as in the case of an absolute sale. We have no authority to establish a rule, as that the holder of a mortgage of personal property, which he has neglected to register, must seize the property on the day the condition is broken, or lose his lien.

Then regarding these circumstances of failing to register, and to take possession of the property, as badges of fraud, it remains to enquire if these badges have been stripped off, or if there was actual fraud. Secret liens, though they are always regarded with suspicion, and are indicative of fraud, are not conclusive evidence of it. A contract to sell, though there is no office for its registration, and it is necessarily kept private, will prevail against a subsequent creditor, even a judgment creditor. Then the actual fraudulent intention must be established, and it must appear that some one would be injured if the deed or transaction was permitted to stand. For if no one is injured, no one has a right to complain. Fraud is inferred, from the circumstance of Isaac E. Holmes’s request not to have the mortgage recorded, and the acquiescence in that request, connected with the subsequent failure to take possession. That request may have been made with one of two motives, either, that apprehending insolvency, he *461wished to obtain credit, and get hold of the property of others, on the faith of the property in his possession, or he may only have wished to avoid alarming his creditors, and bringing them upon him at once; so that he might have time to extricate himself from his difficulties. The former I should regard as a fraudulent purpose, but not the latter.

From the testimony of James G. Holmes, as to the circumstances of Isaac E. Holmes, the latter is most probable ; and it does not appear that after this transaction, Isaac E. Holmes, in fact, ever gained, or attempted to gain, any new credit on the faith of the property in his possession; But whatever may have been the intention, it is certain that the Bank of Charleston has suffered no injury. It does not appear precisely when the debt to that bank was contracted; but from the date of their judgment, little more than six months after the da(e of the mortgage, it is probable, I might almost say certain, that it was before the execution of the mortgage. The registration, or the taking of possession at the time of the mortgage executed, would have done them no good in respect of putting them on their guard against giving that credit. I apprehend, however, that the Rail Road Bank could not have seized the property before condition broken. For though there may have been no covenant for retaining possession, and the legal title may have been in the bank, yet this court regards the mortgage merely as a security, and would restrain the mortgagee from enforcing his security until he was entitled to have his debt. . The debt, in this case, was due in 1840, after the judgment and execution of the Bank of Charleston, and it was a matter perfectly immaterial to that bank, whether the Rail Road Bank should, or should not, take possession of the slaves. If they had been seized, the former bank would have been in no better condition. Whatever may have been intended, there was no fraud on them, nor, as I said, does it appear that there is any other person who was, or can be, injured by the neglect to register, or to take possession.

The reasoning of the Chancellor is entirely conclusive, so far as regards the lien of the execution on the moiety of *462the slaves mortgaged to the Rail Road Bank. The legal title of this moiety was in the Rail Road Bank, and it is' not necessary to argue that the lien of an execution will not attach on a mere equity. If the negroes were sold by the sheriff, no doubt the mortgagee might recover them at law. The equity of redemption in land may be sold under execution, but it is because that is the legal estate. As to the other moiety, it is unnecessary to enquire, as the priority of title of the Bank of the State is admitted.

We are next to enquire as to the effect of the assignment of the judgment against James G. Holmes by the Bank of Charleston. The bank assigns to C. C. Morris, the complainant in the second case stated, “the said two judgments, and all sum and sums of money, and benefit whatsoever, that may be obtained by means of the same, or any execution or executions issued thereupon, and all the estate, right, title, and interest whatsoever, of the said bank, in the same,” and constitute him their attorney irrevocable, to prosecute the said executions. There is no doubt but that the assignee has all the rights of the bank, and may prosecute the executions to any extent that the bank could have done. What, then, were those rights'? Originally, and before the courts of law had assumed an equity jurisdiction, the plaintiff, who had obtained separate judgments against the principal and surety, might have enforced his execution, *at*law, against *both,*to the full amount of both judgments, and it would have been necessary to come into this court, to restrain him from a double satisfaction of his debt. What, then, would have been the equities as between the bank and James G. Holmes, if he had came into court for such purpose'? No doubt, according to the authority of *Hayes vs. Ward,*4 Johns. C. C. 190, and *King vs. Baldwin, 2*Johns. C. C. 562, a surety may come into this court to compel the creditor to collect his debt of the principal; or, as stated by Sir William Grant, 3 Meriv. 579, to compel the principal to relieve him by paying off the debt. To such a suit by James G. Holmes, Isaac E. Holmes must have been a party, and the equity of.the former would have been to restrain the bank from having a double satisfaction, and to compel them to apply *463the assets of Isaac E. Holmes, so far as they would go, to the satisfaction of their demand; he, James G. Holmes, being liable for any balance that, by a return of *nulla bona,*or any other sufficient evidence of insolvency, might be ascertained to remain due after the assets exhausted ; which balance would be decreed against him.

Such would have been the rights of the bank in this court; and such, and no other, are the rights of the as-signee. But it is familiar that the courts of law having-assumed an equity jurisdiction, does not deprive this court of its well established jurisdiction. And it is plain, moreover, that the equities are very inadequately administered by the courts of law ; for, though they restrain a double satisfaction, they do not recognize the distinction of principal and surety..

It is ordered that the decree in the first stated case be modified according to the views herein expressed, and the decree in the second case affirmed.

Dunkin, Ch., concurred.

Johnson, Ch. I concur in the case of the *Bank vs. Gourdin.*

Johnston, Ch., absent from indisposition.