Harkey v. Powell, 8 N.C. 17, 1 Hawks 17 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 17, 1 Hawks 17

Harkey, administrator of Russ, v. Powell.

From Mecklenburg.

IN EQUITY.

A mortgage of a slave was made in 1789, to secure a debt due in March, 1793, and the mortgagee took possession at the date of tire deed, and continued it until 181./, without any account or acknowledgment:

Held, that the mortgagor could not redeem. Such a lapse of time creates the presumption, that the right of redemption has been abandoned.

This was a bill filed in August, 1815, for the redemption of a negro slave, Grace, and her issue, and was transferred from the Court of Equity for Mecklenburg, to this Court, for trial.

The bill charged, that Complainant’s intestate borrowed from Powell, the Defendant, the sum of' eighty pounds, in the year 1800, and for the purpose of securing the payment of it, executed a bill of sale to Powell for the said slave, subject to a proviso of redemption, on payment of the said sum — That Defendant took possession of the slave at the time of making the deed, and had continued it ever since— That she had issue, several children, who were also in his possession — That Russ, in his life time, paid forty pounds, part of the mortgage money — That he then died intestate —That Complainant had obtained letters of administration of his estate, and liad offered to pay the residue of the said mortgage money and interest, but, at the same time, alleged that it had been already satisfied, out of the hire and profits of the slaves. Complainant .then prayed an account, and that he might be let in to redeem.

The Defendant admitted, in his answer,- -that he lent Russ eighty pounds; but it was on the 21st of March, 1789, and that ho then took a bill of sale-from Russ, conveying to him the slave Grace, with- a condition that if the money should be repaid on or before the first day of March, (793, the deed should be void- — That eighty pounds was the full value of Grace, when lie took her in 1789 — He denied that Russ or the Complainant had ever paid or offered to pay, the eighty pounds, or any part thereof, or had requested him to give up the negroes, or to come to an account' — He stated that Grace had issue, six children, which he had raised and then held as his own.

The answer then insisted, that the Defendant had been in the peaceable possession of the slaves for more than twenty years after the first day of March, 1793, before suit brought, and that, as he gave a fair price, this Court would not aid Complainant. With his answer, the Defendant exhibited the deed; which bore date and was of the tenor as stated in the answer, and in the usual form of mortgages, except that in the conclusion, it contained this clause ; “ That if the said money was not paid at or before “ the first day of March, 1793, this deed shall remain in “ full force and virtue, as if there had been no condition an- “ nexed to it.” It was proved and registered in May, 1793.

It did not appear by the bill or answer, when Russ died or when Complainant administered, though the letters of administration, which were filed among the papers in the suit, bore date in August, 1815. Nor did the bill charge when Russ paid the forty pounds, nor when Complainant offered to pay the residue.

Several issues were submitted by the Court to a Jury ; who found, that in 1789, the sum of eighty pounds was something less than the value of Grace ; that at the time of filing the bill, she and her increase were worth greatly more than that sum; that there was no evidence, that Russ or Complainant had paid, or offered to pay, any part of the eighty pounds -, that Russ did not, in his life time, set up any right to redeem after March, 1793 ; and that the Defendant had held the said slaves adversely, and claiming them as his own property, for twenty-one years, or thereabouts, before suit brought.

•S. Henderson, for the Defendant,

relied upon the length of time, and the peaceable possession of the Defendant, as a complete bar to the relief sought.

Wilson, for the Complainant,

said that it was clear this was a mortgage, notwithstanding the unusual clause in the deed ; and, being so, was redeemable. The time is not a bar in this case. In England, twenty-years has been held to prevent redemption ; but there are exceptions to that. If the parties treat it as a mortgage,,by keeping an account or the like, time docs not operate. And, when Equity does regard it, it is not like the statute of limitations, which forms a conclusive bar, but is'merely a circumstance on which a presumption of abandonment is built. Such presumption may be rebutted by slight circumstances. Fraud always rebuts it; and its efficacy is destroyed, whenever the right of redemption is obscured by the particular phraseology of the instrument, or an unusual clause in it. Where a deed prescribed that the mortgagor should redeem with his otvn money, and in'his life time, it was held to be a fraud, because it induced the belief that he had no right to borrow' and pay the debt, and his heir conceived that the equity of redemption had been lost by the death of the ancestor.^* So, here the intestate had reason to believe, and every common man would have believed that after March, ’93, he could not redeem ; because the deed expressly stipulates, that, if not doné by that time, the contract shall stand absolute, as though no condition had ever existed. Such a clause would-necessarily mislead him, and was a fraud on him; and,-therefore, lapse of time ought not to avail the Defendant any thing.

Moreover, the rule in England is adopted in analogy to the statute of James, which bars an,entry, if not made within twenty years. _ In conformity thereto, our measure should be three years, and therein correspond with the act of 173 5; but this Court has often decided against that position, though no other precise time has been iixed on. This does not seem to be a fit case for a rigid rule or restricted period.

* 3 Equ, Ca. 601.

But Ta yuor, Chief-Justice,

said that the slave mortgaged was delivered into the possession of the Defendant in March, 1789, when the deed was made. By the condition ' of the deed, the money became payable the 1st March, 1793; from which time to the filing of the bill is a period of twenty-two years and five months. Throughout this long possession, there is no act, no acknowledgment shewn on the part of the Defendant, by which the transaction was recognised as a mortgage. The right of redemption must, under these circumstances, be presumed to have been abandoned. The bill must be dismissed..

Hair, Judge, and Henderson, Judge, concurred»