The bill further stated that if the purchase of Gwin was not wholly in trust for White, it was upon an agreement between Gwin and White that the latter might redeem the slaves by paying the sum advanced by the former, and interest thereon; and that, in truth, the purchase and the conveyance were but a security for the sum actually advanced by Gwin; and as proof thereof the bill stated that Gwin declared to several persons, while the sale was going on, that he proposed to purchase for White, and give him the privilege of redeeming, and, for that reason, requested those persons not to bid against him; and, also, that by White's direction, Gwin received on the next day from the sheriff the surplus of $102 arising from the sale of the other slaves under (291) execution, to be applied towards the debt for which the slaves purchased by Gwin were liable. The bill further stated that Gwin took the slaves into his possession, upon his purchase; but charged that it was only for the purpose of more completely deluding White's creditors.
The bill further stated that the plaintiff obtained judgment on his second bond, but was unable to raise more than a small part of the debt, as he did not know or suspect any unfairness or fraud in any of the transactions mentioned, nor that White had any right of redemption of or interest in the negroes; nor did any information upon those points reach him until May, 1835. The bill in relation to that part of the case stated that in 1827 White, having been arrested by some creditor, took the oath of insolvency, and that the plaintiff believed him to be really insolvent, but at the period before mentioned the plaintiff was informed of the preceding circumstances by a nephew of White, and that he afterwards applied to Gwin to let him in to redeem the slaves, which the latter refused, and at the same time he threatened that unless he quietly went out of the State he would be prosecuted for perjury in taking the insolvent's oath, and thereby induced White to remove, in 1832, to Tennessee; that upon receiving such information, and having his suspicions otherwise excited, the plaintiff sued out process on his judgment, which was then dormant, and revived it for the sum of $595.88, and sued out a writ of fieri facias thereon, and delivered it to the sheriff, who was unable to levy it or find any other property of Lewis White, except the four slaves and their increase, purchased by Gwin as aforesaid. *Page 242
The bill was filed against Lewis White and the executors and legatees of Thornton P. Gwin, who died before the suit was brought; and prayed that the deed of trust made by White and the bill of sale to Gwin might be declared fraudulent and void as against the plaintiff; or if not, that it might be declared that said White had and hath a right to redeem the slaves, and that he might be decreed to do so, or the plaintiff let in to do so in his stead; or that the slaves might be sold, and the sum due to said Gwin paid thereout, and the plaintiff's debt be (292) satisfied out of the surplus; and to those ends that all proper accounts be taken.
The defendant Lewis White did not answer nor appear, and the bill was taken pro confesso against him.
The other defendants put in an answer which stated that they had no knowledge of the deed of trust, nor of their testator's purchase, but that they had always understood, and did believe, that all those transactions were fair and honest, and were not intended to deceive or defraud any creditor of White; they believed that White did owe to Duke Gwin the money for which the four slaves were purchased by their testator; and, if not, that their testator was ignorant thereof, and paid the sum of $531 (the amount of his bid) to the trustee or to the creditor himself, in good faith.
They further stated that they were ignorant of any agreement for redemption between White and their testator, and never heard their testator admit that any such existed, nor did they ever hear White himself claim such right of redemption, nor had any reason to believe that it was understood between said parties that White could redeem. On the contrary, the answer averred that the defendant's testator took from the trustee an absolute conveyance, and always had possession of the slaves, claiming according to the terms of his deed; and it insisted that the said Thornton P. Gwin, and these defendants under him, had had possession under his purchase from the time it was made in December, 1820, to the filing of this bill in September, 1835, claiming the said slaves adversely and absolutely, and without in any manner acknowledging any right in the said White, or the said White's in any manner setting up such right or claim; and thereupon relied on the lapse of time and on the statutes of limitations as if pleaded.
To these answers the plaintiffs put in replications; and the parties completed their proofs and brought the cause to this Court to be heard. Without stating the evidence particularly, it is sufficient to declare that the Court is satisfied from it *Page 243 that the statements of the bill of the fraudulent intents of the deed of trust from White to Bostick, and of the want of a consideration in that transaction, or in the subsequent sale from Bostick to Gwin, are not supported, but unfounded. The plaintiff has himself examined Bostick, and he declares his belief throughout the transactions and up to the time of giving his deposition, that the deed was a security for sums really due to Duke Gwin or responsibilities incurred by him; and he says further that he made the sale fairly, and that Thornton P. Gwin paid the sum he bid, namely, $531. In all this that witness is supported by Duke Gwin, who has been examined by the defendants; and no witness testifies anything to the contrary. The only circumstance of a contrary tendency is that of the credit on the deed of trust for $1,280.80, of even date with the deed. Neither party asked an explanation of this entry from either witness; and, by itself, it is not sufficient to overthrow the direct asseverations of those two witnesses as to the good faith of that instrument. If the entry was made at the time it bears date, it could not have been deceptive, because it is the same with the date of the instrument, and, when it was acknowledged and registered, would show that too large a sum had been inserted, by mistake in drawing the deed, or that the debt had been reduced before the deed was executed. From the amount of the credit, however, it is probable the entry was made afterwards, and, with the view of regulating the computation of interest, was dated back. It appears in the bill that Duke Gwin was the surety for White for an injunction against the judgment on a bond for this plaintiff for $600, due 1 December, 1819; and, probably, the penalty of the injunction bond would be about $1,280. Now, the bill states that the sum due on the judgment was raised by the sale of part of the negroes by the sheriff; and, consequently, it ought not to be raised again out of the other negroes, if this deed was really intended as an indemnity to Duke Gwin for that responsibility. He may, therefore, have entered the credit just before the sale by the trustee as a discharge of the trustee from the duty of raising so much from (294) the remaining negroes or of suing the sheriff.
We can, indeed, only conjecture, at this day, how the truth was. But, at all events, a circumstance from which inferences may be deduced so consistent with innocence ought not to serve as proof of a fraud. In our opinion, therefore, it must be declared that the deed to Bostick and the sale by him were fair and good as against the plaintiff.
It may be a question whether one can file a bill in the character of a judgment creditor of a person stated to be a mortgagor, for the purpose of being let in to redeem, without giving to, or admitting in, the mortgagee a good title. It would seem to be inconsistent with the scope and object of such a bill to impeach the title of the person from whom the *Page 244 redemption is sought; and, perhaps, for that reason, we should proceed no further in this case. But we think it best to pass by this point, since it is always more satisfactory to dispose of a cause upon its merits, or upon some point that would govern the decision if the litigation should be renewed. In our opinion, there is such a point in this case, which must always be fatal to the claim of the plaintiff, in whatever form it might be presented. Our allusion is to the effect of the lapse of time under the provisions of the act of 1826, ch. 28, 1 Rev. Stat., ch. 65, sec. 14, as a bar to the plaintiff, although it should be admitted there was an agreement for redemption between White and Gwin.
Upon the existence of such an agreement, as a question of fact, the Court entertains, upon the evidence, a confident belief in the affirmative. It cannot be positively denied, any more than admitted, by the defendants, as they were not parties to it. They leave the plaintiff to his proof; and the plaintiff does prove, by two witnesses, that T. P. Gwin expressly informed them that he wished to purchase for the benefit of White, who was to have the power of redeeming; and that he requested them, therefore, not to bid against him, and they accordingly desisted. Besides this direct evidence, there is the circumstance — very extraordinary, upon any other supposition — that $102 of White's money was received from the sheriff, and applied in part of the purchase (295) money Gwin ought to have paid. An agreement for redemption also explains why White should have agreed to setting up the negroes in a lump, while persons desired them to be sold separately, and testify that, if they had been so sold, they would have brought nearly double the price they did.
But supposing the mortgage established, we think the time is fatal to the plaintiff. A judgment creditor can only redeem upon the footing of showing a good subsisting mortgage, which the mortgagor could come into this Court and redeem. The right of the creditor is founded originally on the idea of tacking, so that the mortgagor cannot redeem from him without paying both the mortgage money and the judgment debt. If, therefore, the mortgagor be excluded from the redemption, it cannot be open to his creditor — at all events, only under very special circumstances, if at all. Such circumstances the bill professes to bring forward, by accounting for the delay, because the plaintiff thought the dealings between White and Gwin fair towards him, and had no suspicion to the contrary, until he received the information of White's intent, just before the beginning of the present controversy. But none of those allegations are admitted, nor has the plaintiff offered any evidence of their truth. This bill must, therefore, stand exclusively on the right of White himself. Now, as to him, the act of 1826 is a clean bar. This case falls under the last section, which provides for mortgages *Page 245 theretofore made, and enacts that "where the right of action has accrued within less than ten years the presumption of payment, satisfaction, or abandonment shall arise within thirteen years from the accrual of the right of action." Here there does not appear to have been any day of forfeiture fixed. The conveyance to Gwin was absolute upon its face; but there was a separate agreement between White and him that he would convey to White upon the payment of the principal and interest. That, either could have insisted on, in this Court, immediately. Of course, the time began from Gwin's purchase, on 11 December, 1820, and expired, according to the statute, on 11 December, 1833 — nearly two years before the bill was filed. It is charged, however, that advantage was taken by Gwin of the criminality of White in falsely taking the insolvent's oath, to terrify him from an attempt to redeem, (296) and induce him to leave the State. But the plaintiff has offered no testimony of any undue means on the part of Gwin to induce White to take such an oath, nor to make it the occasion of extorting from him the renunciation of his rights. In the absence of such evidence, the admitted fact that White did take the oath of insolvency, without making an assignment of any interest in these slaves, strongly corroborates the legal presumption from the lapse of time. It is not to be assumed that the oath was either corrupt or false; and, if not, then it establishes that the witnesses were mistaken in supposing that there was an agreement for redemption, or that Gwin subsequently satisfied White for the equity of redemption, or that, for some other sufficient motive, the latter had abandoned the right. But, as the case goes off on this point of time exclusively, and White may have been ruled more by poverty than influenced by his own will, or the merits of the other party, the bill will be
PER CURIAM. Dismissed without costs.
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