1. The law is stated in this State that the mortgagor of personal property, remaining in the actual possession before the law day, has such an interest therein as is subject to levy and sale under execution at law. This rule was first asserted in McGregor & Darling v. Hall, 3 S. & P. 397, and has never since been departed from. The difficulty with mo has been the quantum of the interest thus to be subjected. Is it the mere usufruct until the laAv day, or this, with the mortgagor’s equity of redemption I Upon a careful review of the several decisions of this court, I am satisfied that they contemplate the sale of the entire interest of the mortgagor, where his interest is accompanied with the possession. In Marriott & Hardesty et al. v. Givens, 8 Ala. 706, it was said, that “-this right of possession for a determinate period is subject to levy and sale, and carries with it the equity af redemption — See also, Perkins & Elliott v. Mayfield, 5 Por. 182; Williams & Battle v. Jones, 2 Ala. 314.
2. In this case the mortgagor, by the terms of the mortgage, was entitled to retain the actual possession of the property until the first day of January, 1850, and as the levy was made long before that period, it follows that a lien attached in favor of the plaintiffs in execution, which no subsequent act of sale before the law day could divest. And this lion, being older than the order given by Powers, the mortgagor, to Gresham, and accepted by the mortgagees, to be paid out of the surplus after satisfying the mortgage debt, must necessarily take precedence over it. The plaintiffs in execution must therefore be preferred to Gresham.
3. We have said the lien of the plaintiffs in execution was not affected by the sale of the mortgaged property, made by agreement between the mortgagor and mortgagees before the law day arrived. This being the case, it follows that the plaintiffs in execution are not concluded by that sale. They cannot be placed in a worse condition by the act of third persons, in which they did not participate. They have the right, therefore, to recover the value of the hire of the propert3r levied upon, from the *759time of tbe filing of tbe original bill until tbe first lay' of January, 1850, with interest thereon, and to have an account of the value of tbe slaves at that time, when by tbe terms of the mortgage they were, upon tbe forfeiture of the condition by tbe mortgagor, to- be devoted to tbe payment of the mortgage debt. This, is what the decree of the chancellor, upon a proper construction of it, gives the plaintiffs in execution» The decree, as we un.derstand it, first adjudges the surplus, after satisfying the mortgage, to the plaintiffs in execution, and the hire from the filing of the bill until the law day, and then proceeds to lay down the rule by which the surplus is to be ascertained; namely, by a valuation of the property, as of the first day of January, 1850»
4» The mortgagees claim that they should be allowed reasonable solicitors’ fees out of the fund, in addition to their mortgage debt, for filing the bill to separate their interest from that of the mortgagor, which latter was subject to levy and sale. It is sufficient to remark, that such expenses are not provided for by the mortgage deed, and that these fees were incurred by the mortgagees to protect their own interest, not against the unlawful act of the mortgagor, or of any one else, but merely to render their security more certainly available; or it may be, to enable the-mortgagees, by an agreement with the mortgagor, to obtain possession of the property and dispose of it before the law day. Such fees are clearly distinguishable from those costs necessarily incurred by the mortgagees in maintaining the title to the estate, &c., which are ordinarily allowed as a charge upon the mortgaged estate.- — Coote on Mort. 392.
5» Having arrived at the conclusion that the record presents no error prejudicial to the mortgagees, we turn to consider the errors assigned by the plaintiffs in execution.
The first is, that the mortgage deed was not proved according to the statute, and that consequently its registration under an invalid probate does not amount in larv to notice. The objection raised to the probate is, that the witness does not swear that he saw the deed signed and delivered on the day it bears date, but four days subsequent to that on which it appears to be dated. It does not appear that any fraud was intended, or that any injury was done or attempted to be effected by the wrong date. The certificate of probate corresponds substantially with the facts of the case, and although it does not strictly accord with *760$ie form given in the statute, yet there is not such a substantial departure as will vitiate it.—Hobson v. Kissam & Co. et als., 8 Ala. 357.
6. The only remaining question is, whether.the plaintiffs in he executions can take advantage-of the-usury in the mortgage .lebt; and were this, an open question in this court, we should be trongly inclined to hold, that as to-the unlawful per cent., the nortgago would be without consideration, and to consider the ictual-amount borrowed, with the interest thereon, as constitut-ag the amount to be retained by the mortgagees out of the proceeds of the mortgaged estate. But the rule has, we think,been oo firmly established by .the previous decisions of this court, to he contrary, now to be departed from. In Cook & Kornegay v. Oyer, 3 Ala. 643, it was held, that “ the statutes against usury •vere intended for the benefit of the borrower; they confer a per-onal privilege on him which he may waive, and if he does, no ,ie else can take advantage of it.” The same doctrine was sld in Sayre & Converse v. Fenno, 3 Ala. 458. The decree .f the chancellor is in accordance with -the law as declared by ,kese adjudged cases.
We are unable to percieve any error .in the record, and the decree is consequently affirmed. Let each .party .pay half tlve cost in this court.