Duncan v. Elam

Martin, J. The facts of this case are these : The defendant sold'a tract of land and slaves to Cuny and Taylor, for a sum of money, which was to be paid in six yearly instalments of unequal amounts, for which he took their several notes, secured by mortgage. He negotiated one of them which was for nine thousand dollars, and afterwards took a retrocession from his vendees, who engaged to take it up, and in cohsideration of this, retained some of the slaves, which were excepted from the retrocession. This they failed to do, and the plaintiff became the holder of the note. The defendant being liable as endorser, pledged to the plaintiff a note of Jesse A. Bynum for eight thousand three hundred and thirty three dollars, secured by a mortgage; and the deed of pledge contains a clause by which the pledgor engages to pay the costs of any suit which the pledgee might be obliged or see fit to institute on said note, which was payable on the first day of January, 1841, but Bynum was at liberty to delay the payment until the first of March following. On the 23d of February, the plaintiff took out an order of seizure and sale to enforce the payment of the note out of the property originally mortgaged by Cuny and Taylor to the defendant. The latter took the present appeal from this order. His counsel has placed the case before us on the following assignment of errors. 1st. The affidavit is insufficient, the appellant being a third possessor, as it is not asserted that he had ten days notice after the expiration of thirty days demand on the original debtor. 2d. The order of seizure and sale incorrectly extends to two slaves, as to whom the petition is silent. 3d. The petition does not allege that the defendant’s sale to Cuny and Taylor was duly recorded, it is not made part of the petition, and no certificate of record is mentioned. 4th. Bynum’s note is no way accounted for. 5th. The authentic transfer of the mortgage by the plaintiff’s endorsers was made after the endorsement of the note, when they had no interest therein, nor in the mortgage by which its payment was secured. I. The appellant being personally liable for the debt, cannot be considered as a third possessor in the extent of the word. It is of [137] the essence of third possession, that the possessor, not being liable for the debt, has the faculty of discharging himself by abandoning the mortgaged premises. II. It is true that the two slaves alluded to, are not named in the petition, but they are in the act of mortgage which is annexed to the petition, and which concludes with a prayer that the slaves mortgaged may be seized and sold. III. With regard to the defendant, who is the owner and possessor of the slaves, and personally bound for the debt, no recording is necessary. . IY. The plaintiff received Bynum’s note, not in payment, but in pledge; it was not yet payable at the date of the order of seizure and sale; the deed of pledge left him at liberty to sue or not; the^ pledgor promissing to pay the costs which the plaintiff might incur in any suit he might be obliged or see fit to institute. He was not in'mora when he prayed for this order of seizure and sale, nor is it alledged that he is so at this time. The creditor who receives a pledge from his debtor, does not' thereby incur any obligation to grant him a delay. Y. The plaintiff’s endorsers might well, after their endorsement, give him an authentic act recognizing their endorsement of the note, and an authentic subrogation of the mortgage which had passed to them with the note it was intended to secure.