delivered the opinion of the Court, William Tradewell and James Tradewell on the second
We agree in opinion with the Court below that this agreement of Wm. Tradewell, cannot be regarded as a lien or mortgage in favor of Cotten. . It is scarcely more indeed
The question arises yet, whether a trust was created by this agreement in favor of Cotten. It is ' very clear if it had been carried out, as contemplated, it would have enured to his benefit, by releasing negroes he had bought and which were subject to the mortgage of the Bank. And certainly, if such a result can be brought about consistent
There are several objections to the enforcing the agreement as a trust on the part of Cotten.
1st. He was a stranger to the agreement. It remained with the author of it and was not acted upon to the time of his death, which is a strong circumstance against it. Hill on Trust., 85; 12 Vesey, 39; 2 Mallory, 267.
There was no consideration proceeding from him. It is true there was a warranty in existence, but that was an executed agreement some nine days previous, and there was nothing new to call this agreement into action. The covenant of warranty was a past consideration. A valuable consideration is requisite to put the Court in motion. Hill on Trust., 83. Note. There was nothing distinct and perfect, complete and unequivocal in the agreement, but on the contrary a design incapable of execution, and imperfect. Hill on Trust., 87; 1 Mad., 176 ; 3 Brown Chy.. .12 ; 8 Sim 324.
“ A clear declaration or direction by a party, that the property shall be held in trust for the object of his surety, though unaccompanied by a deed or other act divesting himself of the legal estate, is an executed trust and will be enforced.”
“If a party having the equitable interest of property, execute a formal instrument directing the trustee in whom the legal interest is vested, to hold in trust for a volunteer, and this direction is accepted and acted upon by the trustee, that is an executed trust.” Hill on Trustees, 88—9.
The party having failed to declare a trust to Cotten, or to create an interest in his favor, by certain and definite expressions, it is not for the Court to remedy the defect. We have no option left, but to declare the act as the expression of a design, laudable in its character, and which should have been carried into execution, but which is not in the rightful power of the Court to enforce. It is proper to state that we have examined with proper care the authorities submitted to us, but do not find them to sustain the principles contended for.
Whilst Cotten then has not an equitable claim or trust, he is yet a creditor of Wm. Tradewell, by virtue of the assignment of the Bank mortgage, and as having released the incumbrance on the estate purchased from the Trade-wells. This he is entitled to, unless indeed he is excluded, by not having filed his claim with the administrator of Tradewell. The evidence on this point is too vague and indefinite to sustain the objection. The advertisement is
We have now to consider the claim of Blocker. It is based upon a sale under execution of the interest of James Tradewell, as mortgagee of Wm. Tradewell, by deed dated tenth April, 1842, to secure payment of $22,000 in annual instalments of $2,750 each, payable in 1843, ’45, ’46, ’47, ’48, ’49 and ’50. Under the idea that these instalments, or some of them, were unpaid, the mortgagee’s right was levied upon, under the ruling of this Court, in the case of Phillips vs. Hawkins, 1 Florida Reports, 362. It has been erroneously supposed, that a sale of the right of a mortgagee under this decision, would vest the complete title in the purchaser, and this misapprehension, has led to the consideration of the decision, as neither founded in law nor supported by the authority of other Courts. In the first place, the ruling does not conflict in the slightest degree with the right of the mortgagor to redeem after the salé. 4 Howard, 101; 8 Johnson, 96 ; 12 Wendell, 61 ; 1 Brevard, 286 ; 9 Porter, 472 ; 7 Monroe, 384. As to the rule itself, the difficulty is to find an adverse opinion on the part of the English or American Judges. The Supreme Court of the United States, in the case of Kenzie vs. Bronson, say: “according to the long settled rules of law and Equity “ in the United States, in all the States whose juris- “ prudence has been modelled upon the principles of the “ common law, the legal title to the premises in question “ vested in the complainant, upon the failure of the mort
The Supreme Court of Mississippi, say: “ the mortgagee “ of personal property, immediately on the non perform- “ anee of the condition, is regarded as absolute owner of “ the property mortgaged.” 4 Smde. & Mar., 153.
The Supreme Court of New York say: “ a mortgage is “ an immediate sale to the mortgagee, with the privilege of “the mortgagor to x-edeem.” 3 Cow., 174.
To refer to the numerous adjudications in the States on the precise question, would swell this opinion to an unreasonable length. In addition to those cited in Phillips vs.Hawkins, we add the following : 1 Bailey, S Car., 527; 1 McCord’s Chy., 489; 1 Harper, 275; 9 Porter, 474 ; 5, Ala. ; 6 Shepley, 357. Commentators and writers of distinction on the law, concur in the same opinion. Thus: “a mortgage of personal property is a conditional transfer or' conveyance of the px’operty itself, and if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in a mortgage of lands.”
1 Story’s Eq. Jur., 372 § 1030,
Story on Bailments ; 4 Kent 138—9.
Coote on Mortgages, “
2 Hilliard “ 344.
It is proper to say, we have been informed that a differ-exit practice prevails in the State of Géórgia, and it is probable this fact has led to the general misapprehension prevailing on the subject. If the property mortgaged, on the' failure of the mortgagor to perform the condition by paying the debt due by the very terms of the contract, becomes at law, the property of the mortgagee; what- is there to ex
We have said that the sale of the interest of James Tradewell as mortgagee, conferred upon the purchaser under the execution, not the absolute right to the property, but his right and interest, as if he had assigned the mortgage himself, instead of having it sold by the Sheriff.— Blocker is then such assignee, and stands in the place of James Tradewell. The mortgagor, Wm. Tradewell, and his representatives have the right of redemption by paying up the amount due. This is the position which Blocker occupies to the property, and the case being in Equity, and all the parties before the Court, it may well ascertain the extent and value of this interest. The mortgage is complained of as fraudulent. Whilst there are circumstances about it, not altogether satisfactory to us, yet we prefer that this matter be ascertained by the Judge below on a new hearing, with the assistance of a jury, if deemed prudent and necessary. The original bond should be produced if to be had. It seems that the bond is very nearly, if not wholly paid; if this be the fact, then Blocker has no rights ¡under his execution, whatever may be his rights as a credit tor of Wm. Tradewell.
Whilst then we concur with the Circuit Court as to the Equities of Cotten, under the agreement of Wm. Tradewell, we differ as to the absolute dismissal of the bill. It should, in our opinion, have been retained as a creditor’s bill, and be proceeded with accordingly. The decree is, therefore, reversed and set aside with costs, and the cause remanded for further proceedings not inconsistent with this opinion.