From Granville. The defendant in his answer admitted that he had advanced £ 70, Virginia currency, to the complainant, but averred that he took complainant's bond for the repayment thereof on 25 December, 1785; and that he took the negro woman Mag. into his possession on the following terms, viz., that she was to remain in his possession until the said 25 December, at which time complainant was to be at liberty to take her back, upon paying the money advanced, without interest; but if complainant failed to pay the money by or on that day, she was to become the absolute property of the defendant. That the bond was given to secure the debt in the event of the negro's death before 25 December; that it was agreed, if she died before that day, the loss should fall on the complainant. If she died afterwards, the loss should fall on the defendant. The defendant also relied upon the length of time, and insisted that in analogy to the statute of limitations, the court ought to refuse any aid to the complainant.
The answer being replied to, sundry issues were made up under the direction of the court, and submitted to a jury, who found, (1) That defendant had kept possession of the bond for £ 70, Virginia currency, from the time it was given, and had not offered to return it to the complainant: (2) that £ 70, Virginia currency, was the value of the negro girl Mag. at the time she was delivered to defendant in 1785; (490) (3) that she was to remain in possession of defendant, subject to the claim of the complainant, until 25 December, in that year, and up to that day complainant was to pay no interest upon the money advanced to him by defendant, but the negro's work should be for the interest; (4) that complainant was to bear the loss if the negro died before 25 December, and the defendant was to bear the loss if she died after that day; (5) that complainant had not paid the money due on his bond, nor applied to the defendant to have it surrendered up to him. *Page 334
The case was sent to this Court upon the bill, answer, replication to the answer, and findings of the jury. The allegations of the complainant's bill exhibit, in almost all respects, the features of a mortgage; the answer of the defendant, those of a conditional sale. But as neither are evidence, except against the party from whom they come, we must have recourse to the facts as found by the jury. It is of importance to keep in view that one of these facts is that £ 70, Virginia currency, was the value of the negro at the time she went into the possession of the defendant — a circumstance which does not happen in mortgages, but is often found in conditional sales. A circumstance in which the transaction resembles a mortgage is this, that if the negro died before 25 December, 1785, the complainant was to bear the loss; on which account he gave his bond for the money. The defendant, in his answer, states that the bond was given to secure the debt if the negro died before that day. Although the jury do not find expressly that the bond was given for that and no other purpose, yet they find that which is tantamount to it, for they find that the defendant was to bear the loss in case the negro died after 25 December, 1785; which finding seems to distinguish the case from a mortgage, for if the negro had died after that day, and suit had been brought upon the (491) bond for the money, a court of equity would have enjoined the proceedings, if this fact had been made to appear; the consequence of which would have been that the defendant must have borne the loss. This is not like the case of a mortgage reported in 2 Atk., 496 (and the same principle is to be found in many other cases), "that in mortgages the want of a covenant for the repayment of the mortgage money is no bar to a redemption." For although there is no bond or covenant for the payment of the mortgage money, yet the mortgagee is not without remedy. See King v. King, 3 P. Wms., 388, and Lord Hardwicke's decree thereon, cited byLord Talbot, which was the case of a ship mortgaged and then taken at sea, and there was no covenant for the payment of the money. Although the ship could not be said properly to be in the nature of a pawn, since the mortgagor had gone in her to sea, yet the executors of the mortgagor were decreed to pay the money for which the ship was mortgaged. For it is said in these cases that every mortgage implies a loan, and every loan a debt. 1 P. Wms., 271, 291. So in case the mortgagor be evicted, or the property mortgaged be not of value sufficient *Page 335 to pay the debt, as agreed by the counsel in Howell v. Price, id., the mortgagee might in equity recover the money against the mortgagor. But in this case, if the negro woman died, it was the loss of the defendant; and with respect to him it cannot be said, as in case of mortgages, that there is a debt due. As the negro has lived and become valuable by her increase, the defendant is entitled to the benefit arising therefrom. Agreeably to the complainant's view of the case, the defendant might lose, but could not gain. As defendant has run the risk of a total loss, he shall have the gain that has been made. As to the length of time, it is only necessary to remark that under the particular circumstances of this case it strongly fortifies the defendant's situation. Let the bill be dismissed.
(492)