Edgefield advertiser. [volume] (Edgefield, S.C.) 1836-current, 1866-08-15

upon one class OF our coli'hun''y' N0
iec, at least is worthy our most serious con-
sidera,ion
YUur o!:elient servant. -.
orINIoN.'
Oa the ~ day CT October a. D., 1855 @
s. executed a bond 10 j. t., payable one
wear after date, with the CONDITION to pay at
maturity. twenty-five Thousand FIVE hundred
dollars fSa2 50Il and 10 ensure its payment
he mort aged to.J. u. fily niue slaves. The
slaves continued in the possession OF the
mortgarer, g. S, until the United States
rr,.,ps cana into the neghborhood, when
they lclt him. They have since been esnancl,
pa,rd. j. o., the mortgage, has desaNted
payment Of the whole bond IRON Y. 3, tue
N ,r;rager, and threatens that unless he Will
mortssse bis, plantation (being all the proper
IL be bas.lsff, and which will scarce y pay
The bond \ he viii institute suit on the Soaa
aqs;ns, him. The rights of the parties de
nenl roon the effect OF the mortgage. II II
.,agc mere security for tie payment o! lhe
6ood. ,ien J.. t., Vie m9rtgagecs Is right IL
his uos:lion; bu. il ii gavs to uiin the abSo-
ln,c l.sal,,risht of property in the slaves,
rb,n. - IL was his p:uperty, which emancl'
n.,;on s dastroved. it can hardly be just tina;
Z s. the. n1ortgager, should pay MIN Tor
them. a,
On the face Of thf. mortgage. N Inc asasl lIl4I
form, of CONVEYANCE. lha degrees WERE are
~, f,iIr-e of payment of the Doao at matu'
,it-. ,he bs,lu;, and exclusive owner OF tue
slagss. The mortgage purports to be a pr
ocia and sals"' of the negroes from Z. ,. 10
j. L.. to him, his executors, administrators
~ ass;oos.. "to hare and 10 hold" them, oe
fsas;hle. however, on the paymep: at maturity
of the i,oud and inte est ). and then continues
IN tho f,lo1ing words: And in case default
s1,,,; ba,nen to be made OF or in payment OF
80 sid sum OF money as aforesaid, according
70 the rrae intent and meaning u the saiu
n,nd. that then and in such case II Snaii ana
r,o- ho lavial to and for the said u, nlr
executors. administrators, attorneys GFasse"'s
t-o-, emo 10 time, and at all times hereafter,
o..ceably and quietly to enter INTO a':S or
~ ;ao inessnaceS, lands or teneinenlS o' Tue
.a;t; C. 8, and 20 take the said negroes ",th
,is Future Increase nj the !einaia'' i!'o HiS
,.,.todyanti possession, and ihe same Z" @g';'
a,9 3eiuin 10 his 0,ra tlae and d'hooi 9% h!s
',c, ,,,oosr 05ods aad cAa0Les i.'o@ hen'eioTA
,,-sncr or 70 sell and dispose OF them ar il''
will and pleasure.
!. ,c.,ns impossible ior any words to con-
nov the absolute and exclusive title 10 pro
,ortv more clearly than the above words o.
mo mortgage. Il is the law Of the parties
md made j. l.. the mortgage. the legal
owner of the slaves ut the time they were
enancipated.
The words in the mortgage were undouAt
caly framed to meet the decisions OF Out
Courts, determining the relations between
t5c ao,taager and mortgage OF slaves. Prior
70 tho decision CT the case OF Wolf es 0
Farrel: / Treadway 142, the general opinion
of the Barand of the Bench appears to have
t.ecn. that mortgage of negroes was ooly q
secur;tvi in the hands Of the mortgage ior
rbe nayneu. OF his debt This case rcctihed
ti,;s opiuion. 1t arose from an action o.
Tr,yer. tor 4 negro, on the part of the mort
rsg.e againsta purchase OF the negro from
ths mortgager. Judge Smith in the Court
below. granted suit against the ortga-
gee. on the ground that the right OF property
~ The slave YVES not in the mortgage, but
was.io the mortgager, and his title to the
nnrchase of the slave, therefore, was good
In the Court of Appeals. both Judge Colcoch
and Judge Bay acknowledged that on the
s-o",nant of the case, they were inclined tc
think that the decision of the Court belo"
was correct, but on further consideration they
had changed their opinion. Judge Brevard
slo,.,. dis sented from the final decision OF the
Eourt. They decided, that before The tnil
nre of the payment of the money mentioned
in the proviso of the mortgage, the legal es
tate is still in the mortgage, and only con-
dfionnl one in the mortgasee. But attel
failure of. payment of the money. it is no lon
par conditional in the mortgage, but absolute
aud ia gone from the morgsgsr forever, sub
jsct however ip. equity, at any time before
foreclosure, 70 the right Of redemption apnr
paymept OF pyiucipaI and in;ersst, The ti!ls
n the a,opsrty tbcn being absolute Ia sh.
..orfua,sc, he rnsy tsSe It OF! Of lt9 posses
.;o,, n the mortsage. CT Of any other pefto::
n,.s s,. - ii an action Of tgcyefo Judge Col
cock supported the eboye POSITIONS OF Judss;
Bay. .is.seems,a he says, ito be conceded
that ,hs;m9rtgegee is considered as beng III
p,ssession of the property nlortgased' in the
,..,n,, ,..aunet that tie assigns OF bankrupt
,-.. considered To ha in possession OF the
b,rernpt,s assignee. 1hs mortsagee isttae
.hsolnte. and true owueri; end he quotes {
T,rm Rep 3l2, 3Grsmbt Hot aud Rep.
Bgall ss.Bowles. - =, z
Thissdecision has never been oyerruled F.;
but onabe contrary, has een7rsnpported by
subsenuent decisions. In MONTGOMERY rs.
Kerr, r Ifill, the Court decided that the as.
signment Of ID mortgageezis iu the nature OF
a bill Of sale, aud The assienee9tnay maintain
an action for tort to the property. in B9bo
~ McBeth, = Bailey-4S9, shasthe- possession
n; /: mortgages esiof personal opropvrtysfs sed2
,:,r<e to every orcsbuethfh Iu,osssager. y 10
,nsg l.se5 ;5ossas ion .byadhsE right of{ihs
.,niiy sEssiaat third persons aattopg asAael
T.ts s,n,;csIiostof these principiess to,ths-