#### Reddick Mosely *vs.*John M. Crocket, Administrator of T. W. Huey.

M. gave H. a bill of sale of five negroes, and H. gave M. a bond, by wbicb, reciting that be bad taken from M. tbe bill of sale and hired tbe negroes back to him for twelve months, be bound himself to return “ said negroes to M. whenever he pays me the true amount due me as notes and receipts will show *—Held,*that this was a mortgage.

Tbe negroes were afterwards levied on in H’s. possession under a *fi.fa.*against M. younger than the mortgage, and purchased by H. who remained in possession about four years *:*— Held, that M’s. right to redeem was barred by the 15th section of the Act of 1712, 2 Stat. 587.

BEFOSE JOHNSTON, OH., AT LANCASTER, JUNE, 1856.

Tbe facts of this case are stated in tbe opinion delivered in tbe Court of Appeals. Tbe Circuit decree is as follows:

Johnston, Ch. This cause was beard on tbe Commissioner’s report,' and exceptions thereto on tbe part of tbe plaintiff, and tbe defendant, J. M. Crockett, and on tbe general equities of tbe parties wbicb bad been reserved.

Tbe first exception of plaintiff is well answered by tbe report of tbe Commissioner, and is overruled. Tbe plaintiff’s second exception will be considered wben I come to decide upon tbe general equities.

Defendant’s first exception is overruled. Tbe testimony well warrants tbe Commissioner in making tbe charge to wbicb exception is taken.

Defendant’s second exception is sustained. There was no satisfactory evidence tbat tbe plaintiff was entitled to a credit for tbe notes on Miller, either on tbe execution or tbe twelve hundred dollar note. Tbe receipt wbicb Huey gave for one of tbe notes expressly says tbe note was received in part *340payment of goods in Mosely’s bands for sale. I must conclude these notes were transferred to Huey in payment of demands and liabilities, not connected with the execution or Mosely’s note of twelve hundred dollars.

Defendant’s third exception is sustained. There was no evidence that the notes given by Mosely — one for twelve hundred dollars, and the other for four hundred and ninety-four dollars and fifty-six cents, were connected together. On their face they appear to be separate and distinct demands ; and each contains an acknowledgment of Mosely that he owed the amounts specified in them to Huey. Huey, by his assignment to Chamberlain & Bancroft, incurred no liability.

Defendant’s fourth exception is sustained. There was no evidence to show wbat the consideration was of the note for twelve hundred dollars. By that note Mosely promised to pay the sum of money mentioned in it; and in the absence of all proof to the contrary, I must conclude he meant what he said. If any proof, or explanation, could have been given, as to the consideration of said note, it was the business of the plaintiff to have furnished it.

On consideration of the general equities of the parties, I am satisfied the plaintiff is barred under the Act of 1712 (2 Statutes at Large 587, § 15) from the redemption of the negroes, and an account for their hire. The two papers executed 22d January, 1846 — the one by Reddick Mosely, and the other by T. *W.*Huey, must be construed together, and constitute a mortgage on the negroes therein mentioned, to secure the payment of fifteen hundred dollars, then due by the plaintiff to Thos. *W.*Huey. After condition broken, the negroes went into the actual possession of T. *~W.*Huey, the mortgagee, and so remained for more than two years before the filing of the plaintiff’s bill. Under the provision of the Act of 1712, the negroes vested in Huey, and the plaintiff is barred from their redemption, and any account *341for tbeir bire, and it is so adjudged and decreed. Erom the view wbiob I have taken of the equities of the case, it follows that it is wholly unnecessary to go into any enquiry as to the value of the mortgaged negroes and their hire. The second exception of the plaintiff is therefore overruled.

The amount of the mortgage debt was included in and made part of the judgment for two thousand, two hundred and sixty-one dollars. The mortgage debt being satisfied by the vesting of the mortgaged negroes in Huey, Mosely is entitled to a credit on the judgment for said sum of fifteen hundred dollars, and interest thereon from 22d January, 1846, and it is so decreed.

The plaintiff, according to the principles of this decree, being entitled to credit on the judgment for the amount as stated, asks for an account of the balance due by him on the judgment, and of payments made by him thereon, and it is ordered that the Commissioner take' an account of’the amount due on said judgment after deducting the mortgage debt, and-of the payments made thereon by plaintiff. Under this order the Commissioner is to inquire and report whether any payments that may have been made, were made on account of the mortgage debt included in said judgment or the other debt, part thereof, and how said payments should be applied.

The administrator of T. *W.*Huey claims an account from the plaintiff for the note of twelve hundred dollars mentioned in the pleadings. The Commissioner may inquire and report as to the amount of said note, any payment made thereon by plaintiff and the amount now due by plaintiff thereon. I conclude nothing as to the right of the representative of Huey to such accounting for said note, and equities of the parties as to this matter are reserved until the coming in of said report.

It is therefore ordered and decreed that the report be recommitted to the Commissioner, and that he restate the *342accounts between tbe parties according to tbe principles of this decree.

Tbe plaintiff appealed.

Clinton, for appellant.

*Moore,*contra.

Tbe opinion of tbe Court was delivered by

DargAN, Ch.

But little need be said in explanation of tbe judgment of tbe Court in this case, and that little will bave relation to tbe character of tbe instrument, wbicb is tbe subject matter of tbe controversy.

In tbe Commissioner’s report, it is stated, tbat on tbe 22d January, 1846, tbe plaintiff executed to Tbomas *W.*Huey, defendant’s intestate, a bill of sale for five negroes, viz: Nelly and ber four children, Grace, George, Carey, and Bausom, in consideration of tbe sum of fifteen hundred dollars. On tbe same day, Huey executed to tbe plaintiff, an instrument called a bond, reciting, tbat be bad tbe same day “ taken from B. Mosely, a bill of sale for five negroes, viz: Nelly, Grace, George, Carey, and Bansom, and hired tbe same to said Mosely for twelve months, binding himself, bis heirs, executors and administrators, to return said five negroes, (if alive when called for,) to tbe said Mosely, bis heirs or assigns, whenever said Mosely, or bis heirs, or assigns, pays me tbe true amount due me, as notes and receipts will show.”

Thte Chancellor who beard this cause on tbe circuit, held this instrument to be a mortgage; as *it is,*to all intents and purposes. Any conveyance of property to be held as a security for tbe payment of a debt, or tbe performance of any other contract, or covenant, is a mortgage whatever may be its form; whether tbe defeasance be expressed in tbe conveyance, or in another instrument collateral thereto ; and in this *343Court, eren though tbe defeasance or condition should rest entirely in parol. Whenever this distinguishing and predominant feature is stamped upon the instrument, either by internal evidence, or evidence derived aliunde, all the legal consequences follow, and all the doctrines of this Court apply to it as a mortgage. Subject to the essential principle that a conveyance of property to be held as a security, is a mortgage ; transactions of this nature in other and subordinate respects admit of infinite modifications, as the parties may contract. In all cases, the right of redemption exists. In most cases, it is stipulated, that the mortgagor is to retain possession until a breach of the condition. In some instances, as in the present case, the mortgagee is to have the possession. The parties may, (as they do often) variously stipulate as to the application of the mesne rents and profits. And numberless minor conditions and covenants may be introduced into the agreement, and become binding upon the parties, as the law of the contract.

The possession of the property by the mortgagor, being consistent with the rights of the mortgagee, is never a bar to his claim to have satisfaction of his debt out of it. But the possession of the mortgagee is sometimes a bar to the mortgagor’s equity of redemption.

In this case, by the contract of the parties, the mortgagee was to have possession of .the negroes, until called for by the mortgagor: when on paying the “ true amount” of the debt, for which the negroes were mortgaged, the mortgagor was to have restitution of his negroes. The mortgagee then hired the negroes to the mortgagor at stipulated sums for their annual hire. Under arrangements like this, the negroes continued in the possession of the mortgagor for more than two years subsequent to the date of the mortgage.

In the meantime, Mosely the mortgagor had given to Huey, (the mortgagee,) a note for two thousand, two hundred and sixty-one dollars, bearing date 4th February, 1847, pay*344able one day after date; and on 5tb February, 1847, be confessed a judgment to Huey for the amount due upon this note: upon which confession, an execution was issued, and lodged with the sheriff, on 1st March, 1847. Also, one Laban Ferguson had instituted a suit against Mosely, recovered a judgment, and sued out an execution against him, which execution was lodged with the sheriff on the 25th April, 1848.

These negroes had come into the possession of Huey, in what manner, and at what time, does not clearly appear. "While in his possession, they were levied upon by the sheriff under Ferguson’s junior execution; and two of them, Nelly and Merit (one of Nelly’s children after the mortgage,) were sold by the sheriff to Huey, on the 5th of February, 1849 ; and Grace, Carey, and Eansom, were sold by the sheriff to Huey on the 6th March, 1849 ; all at nominal prices. George, one of the original number, was not sold by the sheriff, but at, or before the sale, had passed into the possession of Huey by virtue of a bill of sale from the plaintiff to Huey, dated the 18th February, 1848. By virtue of such a title as the foregoing facts will make out, and establish, Thos. W. Huey, the defendant’s intestate was in possession of the negroes, the subject matter of this litigation, for at least four years; from 6th March, 1849, to the time of his death which occurred in 1854.

The Chancellor who tried the cause on circuit, considering the instrument of 2 2d January, 1846, as a mortgage, held, that the equity of redemption was barred by the Act of 1712,15 section, 2 Stat. 587. That Act provides, that two years possession by the mortgagee of a chattel, after a breach of the condition, should operate as a bar to the equity of redemption. This Court concurs in that view. The statute was applied in the case of *Hogan*vs. *Hall,*1 Strob. Eq. 323. In this case, the bill of sale was absolute on its face, and the condition which made it a mortgage was proven by parol.

*345In tbe case before tbe Court, if tbe equity of redemption was gone, tbe negroes were tbe property of tbe defendant’s intestate at tbe filing of tbe bill, and tbe claim for tbeir bire was unfounded.

Besides tbe claim for tbe equity of redemption, tbe bill prayed for an account generally, between tbe plaintiff and tbe defendant’s intestate. Tbis was ordered, -and tbe Commissioner bas reported. Tbe other grounds of appeal in tbis case relate to matters of account, and questions of fact raised on tbe report. As to these, we see no reasons for disturbing tbe circuit decree.

It is ordered and decreed, that tbe circuit decree be affirmed, and that tbe appeal be dismissed.

JOHNSTON and Wardlaw, CC., concurred.

*Appeal dismissed.*