George W. Phillips, Claimant, vs. Whitehurst J. Hawkins, Plaintiff in Execution, 1 Fla. 262

Baltzell, Justice: ■ This is an appeal from a trial of the right of property in a negro woman Dolly, had under the laws of the State permitting a-party, whose property is levied upon under execution or attachment, to have a trial of the right, on presenting an affidavit and giving bond as required by the statute.

Sadbury, the original owner of the property, on the 4th May, 1842, mortgaged it to Uz Wood, “ to pay all of certain notes on which Wood was security, together with interest, &c., so that Wood shall in no way be interrupted or injured in consequence of his having become security thereon, or shall, by any other lawful means, keep and save harmless said Wood, from the payment of said notes or any part thereof, and all costs, damages and charges, as security,” &c.

About the 2d of July, 1845, (for the bill of sale has no date,) Wood, “ for the consideration of $500, sold and Conveyed to Phillips the ne. gro in question, as mortgagee. ” Sadbury, by bill of sale dated 80th June, 1845, reciting the mort. gage, and “ that Wood had been compelled by process of law to expend and advance, as surety or endorser, certain sums of money to more than the value of the said negro woman: to reimburse Wood, and to save the expense of a suit to foreclose, and willing that a sale should be effected by private arrangement, he gives his assent to the sale to Phillips, and renounces and releases all right, title and interest in the said negro slave.” On the trial it was admitted that the $616 29, paid on a case of Wm.

Williams, one of the debts enumerated in the mortgage, was paid on a security debt of Sadbury. The plaintiff in execution, contesting the claim of Phillips, relies on an execution from the Superior Court of Gadsden county, against Wood & Sadbury, for the sum of $795 04, with interest, &c., levied upon this negro woman and her child, the 4th of August, 1845. The question is, Who has the better title ?

It is too well established both by the English and American authorities, to admit of ques-tipn, that, “ on failure by a mortgagor to comply with the condition of the mortgage, the title in personal property becomes absolute in the mortgagee, and he may reduce it to possession.” 4 Kent, 138-9. Pow. on Mort. 3. 2 Vesey Jr. 378. 10 John. 471. Brown vs. Bement, 8 John. 96. 5 John. 258. 2 Pickering, 610. 7 Cowen, 290. So, “ his interest may be levied on and sold under execution.” The case of Ferguson vs. Lee, is precisely in point. “ C.

Lee had a mortgage upon personal property, which became absolute on the 1st of December, 1828. The property, therefore, became Ms on that day, as the mortgage was then forfeited. Subsequent to that day, the deputy Sherifflevied on the property, as the property of C. Lee — the levy was good and held the property.” 9 Wendell, 258.

In thq case under consideration, claimant asserts a forfeiture of the mortgage, by producing the deed of Sadbury, which admits, “ that Wood had been compelled, by process of law, to expend and advance as endorser, sums of money to more than the value of the woman.” The title in the negro woman was then absolute and complete in Wood at the date of the bill of sale, and was subject to the execution of Phillips, it being operative and in force at that time.

We do' not conceive it necessary to go into a more minute consideration of the case, either as to the instructions given, or those re. fused, satisfied that the right is with the plaintiff, and that the verdict was properly rmijtered. We see no objection to the instruction given by the Court below. The judgment is, therefore, affirmed with costs.