delivered the opinion of the court.
The petitioner states, that on the 20th of February, 1828, he purchased, in the territory of Florida, five slaves from Campbell, who by the terms of the contract, had the faculty of redeeming them by the payment, within two years, of one thousand two hundred dollars and eighty-five cents, with interest; that they were not redeemed, and are now in the possession of the defendant, who refuses to deliver them.
The defendant pleaded the general issue, and claimed title under Campbell; denied that the plaintiff had any title to the •slaves, and averred that if he purchased them, the purchase is of no avail as to the defendant, a bona fide purchaser, because unaccompanied with delivery; if they were mortgaged to the plaintiff, the mortgage cannot avail against the defendant, because it never was recorded; lastly, the defendant prayed that as he bought bona fide, and in market overt, if the slaves were recovered from him, he might have judgement .for the price he had paid for them.
There was judgement for him, and the plaintiff appealed.
He produced an indenture executed in the territory of Florida, under which the slaves appear to have been sold to *43him; under a condition, that the sale should be void, if the party he contracted with (Campbell) paid a certain sum, on a given day. This indenture appears to have been duly recorded in Florida.
a purchaser not affected by ^ mortgage cuted out of jgSeg ftat^ corclecl in this, Avendeewho a^ropCTty'to remain in the th<TeS vendor, ih™ dainT^of his vendor’s creditor nor that of a suh/^purchase* Preston, for appellant. Cannon, for appellee..It appears from the testimony of two witnesses, introduced by the plaintiff, members of the bar of the territory of Florida, that the indenture under which he claims is, according to the laws of that territory, a deed of mortgage only, and not one of sale.
From the declarations of the plaintiff himself, witnesses testify that he never had possession of the slaves, or either of them, but suffered them out of charity, to remain in the possession of his mortgager the defendant’s vendor.
Whether the indenture be considered as a deed of mortgage, as we conceive it really is, or as a deed of sale, as the plaintiff contends, it appears to us the first judge was equally correct in rejecting his claim — on the first hypothesis, as the hypothecary action was not instituted, and if it had been, on account of the absence of a record of the mortgage in this state.
On the second hypothesis, the vendee who suffers personal property purchased to remain in the possession of the vendor, and thus enables him to acquire credit or deceive a subsequent purchaser, cannot resist the claim of his vendor’s ereditors, nor that of a subsequent bona fide purchaser, and it is shown slaves are property in the territory of Florida.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the Parish Court be affirmed with costs in both courts.