{ "id": 8726798, "name": "Gilchrist vs. Patterson", "name_abbreviation": "Gilchrist v. Patterson", "decision_date": "1857-01", "docket_number": "", "first_page": "575", "last_page": "579", "citations": [ { "type": "official", "cite": "18 Ark. 575" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "2 Gilm. 640", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2558221 ], "opinion_index": -1, "case_paths": [ "/ill/7/0640-01" ] }, { "cite": "10 Sm. & M. 120", "category": "reporters:state", "reporter": "S. & M.", "case_ids": [ 8838709 ], "opinion_index": -1, "case_paths": [ "/miss/18/0120-01" ] }, { "cite": "9 Sm. & M. 448", "category": "reporters:state", "reporter": "S. & M.", "case_ids": [ 8840074 ], "opinion_index": -1, "case_paths": [ "/miss/17/0448-01" ] }, { "cite": "6 Mass. 239", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2000730 ], "opinion_index": -1, "case_paths": [ "/mass/6/0195-01" ] }, { "cite": "21 Verm. 331", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4422676 ], "opinion_index": -1, "case_paths": [ "/vt/21/0331-01" ] }, { "cite": "10 Verm. 294", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 }, { "cite": "1 John. 580", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2128202 ], "opinion_index": -1, "case_paths": [ "/johns/1/0580-01" ] }, { "cite": "13 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728293 ], "opinion_index": -1, "case_paths": [ "/ark/13/0533-01" ] }, { "cite": "9 Verm. 299", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4415587 ], "opinion_index": -1, "case_paths": [ "/vt/9/0299-01" ] }, { "cite": "4 Blackf. 539", "category": "reporters:state", "reporter": "Blackf.", "case_ids": [ 1388283 ], "opinion_index": -1, "case_paths": [ "/blackf/4/0539-01" ] }, { "cite": "1 Root 218", "category": "reporters:state", "reporter": "Root", "opinion_index": -1 }, { "cite": "2 Day 425", "category": "reporters:state", "reporter": "Day", "case_ids": [ 6753564 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/day/2/0425-01" ] }, { "cite": "2 Aik. 33", "category": "reporters:state", "reporter": "Aik.", "case_ids": [ 8544541 ], "opinion_index": -1, "case_paths": [ "/aik/2/0033-01" ] }, { "cite": "1 Bibb 526", "category": "reporters:state", "reporter": "Bibb", "case_ids": [ 6688731 ], "opinion_index": -1, "case_paths": [ "/ky/4/0526-01" ] }, { "cite": "19 Conn. 218", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6753839 ], "opinion_index": -1, "case_paths": [ "/conn/19/0218-01" ] }, { "cite": "9 Mis. 280", "category": "reporters:state", "reporter": "Miss.", "opinion_index": -1 }, { "cite": "7 Humph. 121", "category": "reporters:state", "reporter": "Hum.", "case_ids": [ 8542744 ], "opinion_index": -1, "case_paths": [ "/tenn/26/0121-01" ] }, { "cite": "2 Cow. 195", "category": "reporters:state", "reporter": "Cow.", "case_ids": [ 2161443 ], "opinion_index": -1, "case_paths": [ "/cow/2/0195-01" ] }, { "cite": "4 Johns. 43", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "10 Verm. 293", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 613533 ], "opinion_index": -1, "case_paths": [ "/vt/10/0293-01" ] }, { "cite": "20 Verm. 78", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 11266897 ], "opinion_index": -1, "case_paths": [ "/vt/20/0078-01" ] }, { "cite": "15 Maine 48", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8847343 ], "opinion_index": -1, "case_paths": [ "/me/15/0048-01" ] }, { "cite": "18 Maine 357", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 384964 ], "opinion_index": -1, "case_paths": [ "/me/18/0357-01" ] }, { "cite": "2 Verm. 78", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 } ], "analysis": { "cardinality": 553, "char_count": 9607, "ocr_confidence": 0.543, "pagerank": { "raw": 1.959739121485894e-07, "percentile": 0.7378470713929653 }, "sha256": "8b8a9bec7866e247c7754ebfefafa79202af774586bf70e2c555182a3b9a5c6d", "simhash": "1:235b89d9e5b93d28", "word_count": 1698 }, "last_updated": "2023-07-14T15:23:25.052204+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "The Hon. Beaufort PI. Neely, Circuit Judge.", "Absent, Hon. C. C. Scott." ], "parties": [ "Gilchrist vs. Patterson." ], "opinions": [ { "text": "Mr. Chief Justice English\ndelivered the opinion of the Court.\nThis was replevin in the detinet, for a slave named Westley, brought by Monroe Gilchrist against James W. Patterson, in the White Circuit Court. The action was commenced 24th March, 1856. Under the writ, the slave was taken by the sheriff, and delivered to the plaintiff.\nThe defendant pleaded non detinet, property in himself, and property in John P. Bearden. Issues weie made up upon the pleas, the cause submitted to a jury, verdict for defendant, and judgment in his favor for return of the slave, and damages assessed by the jury.\nPending the trial, the plaintiff took a bill of exceptions setting out the following facts, etc.\nOn the trial, the plaintiff read in evidence a note made by John P. Bearden and A. J. Jones to W. B. Norman, or bearer, for $1,150, dated Dec. 25th, 1854, and due and payable at twelve months, with eight per cent, interest from date. Upon which note was an assignment by Norman, the payee, to B. K. Rogers, and an assignment by him to the plaintiff.\nThe plaintiff also read in evidence a mortgage executed by John P. Bearden on the 6th of January, 1855, to Norman, upon the'slave named in the declaration, to secure the payment of the above note, conditioned for its payment at maturity; which was duly acknowledged, and filed for record in the office of the recorder of White county, on the day it was executed.\nUpon which mortgage were the following assignments:\n\u201cFor value received, I assign and deliver the within to B. K. Rogers. WM. B. NORMAN.\nJanuary 1th, 1856.\u201d\nFor value received, I assign and deliver the within to M. Gilchrist. B. K. ROGERS.\u201d\nThe plaintiff also proved the possession of the slave by the defendant; demand and refusal, etc., and that the slave was re-plevied from defendant within the county of White. That Norman sold and transferred to Rogers, and Rogers to Gilchrist, all the right, title and interest of Norman under the mortgage, etc.\nThe plaintiff moved the following instructions:\n\u201c 1st. If the jury believe from the evidence that the note for $1,150, bearing 8 per cent, interest, made to Norman by Bear-den, to secure the payment of which the mortgage was made by Bearden, had fallen due and remained unpaid at the time of the transfer of the note from Norman to Rogers, and from Rogers to plaintiff: and that defendant had possession of the negro after the time when the condition of said mortgage expired and was broken, and refused to give the negro into possession when demand was made by the plaintiff, they will find for the plaintiff.\n\u25a0 \u201c 2d. If the money in the note specified in the mortgage was not paid to Norman when due, he, Norman, was entitled to the possession of the negro.\n\u201c 3d. If the jury believe that Norman transferred and conveyed to Rogers all his (Norman\u2019s) right, title and interest, in and to said negro, Rogers had the same right of possession that Norman had before him.\n\u201c 4th. If Rogers transferred and assigned all his right, title and interest in and to said negro to Gilchrist, he (Gilchrist) obtained the same right of possession that Rogers and Norman had before him.\n\u201c 5th. That if Norman was under the mortgage entitled to the possession of the negro, he could transfer his right under the mortgage by written or verbal contract, and that a written conveyance, acknowledged and recorded, was not necessary to convey to the assignee his rights \u2014 the original mortgage to Norman being duly acknowledged and recorded before Patterson (defendant) hired the negro.\u201d\nThe Court gave the 1st, 2d, 3d, and 4th of the above instructions, but refused to give the 5th \u2014 and plaintiff excepted.\nThe defendant asked the Court to instruct the jury as follows:\n\u201c 1st. That unless the plaintiff has shown a legal right to the possession of the slave, they must find for the defendant.\n\u201c 2d. That the assignments on the mortgage from Norman to B. K. Rogers, and from Rogers to Monroe Gilchrist, do not vest the legal interest in Gilchrist to said slave.\u201d\nWhich instructions the Court gave against the objection of the plaintiff, and he excepted.\nAnd the Court also instructed the jury: \u2014 \u201cThat, in order to vest in the plaintiff a title sufficient to sustain this action, the conveyance and assignment of the entire right and title of said Norman to Rogers, and from Rogers to Gilchrist, must have been by assignment under seal and duly acknowledged, or witnessed and proved.\u201d\nTo-which the plaintiff excepted.\nThe plaintiff appealed.\nOn the maturity of the mortgage debt, and default of payment, Norman, the mortgagee, had, at law, the right of action for possession of the slave against Bearden, the mortgagor, or one holding under him, etc. In equity, the mortgagor had the right of redemption. See Kannady vs. McCarron July T. 1856. Fitzgerald vs. Beebe, 2 Eng. R. 311.\nBeing a mortgage upon personal property, the assignment of the note and mortgage by Nornlan to Rogers, and by him to the plaintiff, vested the right of action in the latter. Dig. ch. 15. 1 Lomax Dig. 335. Southerin vs. Mendum, 5 New H. 420. Rigney vs. Lovejoy, 13 Ib. 247. Jackson vs. Blodget, 5 Cowen 202. Johnson vs. Hart, 3 Johnson\u2019s Cases 322.\nIt was not necessary that the assignment of the note or mortgage should have been under seal. 1 Parsons on Cont. p. 197. The note being payable to Norman or bearer was transferable by delivery.\nSo much of the 5th instruction, moved by the plaintiff, as asked the Court to declare that Norman might transfer his right of action by verbal contract, was abstract, because both the assignments upon the note and mortgage were in writing. In other respects the instruction is not objectionable.\nThe Court erred in giving the 2d instruction moved by the defendant. Also in giving the last instruction copied above, which appears to have been given on its own motion.\nThe judgment is reversed; and the cause must be remanded with instructions to the Court below to grant the plaintiff a new trial.\nAbsent, Hon. C. C. Scott.", "type": "majority", "author": "Mr. Chief Justice English" } ], "attorneys": [ "McCohaughey, for the appellant." ], "corrections": "", "head_matter": "Gilchrist vs. Patterson.\nOn the maturity of a mortgage debt and default of payment, the mortgagee has, at law, a right of action for possession of the property against the mortgager, or one holding under him (Kannady vs. McCarron, ante.)\nWhere a mortgage is given upon personal property to secure the payment of a debt due by note, the assignment of the note and mortgage, whether the assignment be under seal or not, vests in the assignee the right of action in the mortgage.\nAppeal from the Circuit Court of White county.\nThe Hon. Beaufort PI. Neely, Circuit Judge.\nMcCohaughey, for the appellant.\n1st. Are mortgages assignable?\nA mortgage is a conveyance of title upon a condition, and if the condition be not performed, the title becomes absolute in laio, and nothing remains to the mortgagor but the right to redeem in equity \u2014 1 Lomax Digest 329; Story Eq. sec. 1031; \u2014 and the mortgagee is entitled to the possession of the mortgaged property \u2014 4 Kent Com. 138, 159; 2 Verm. 78; Story on Bailm. sec. 287; Story's Eq. Jur. 1031; Flanders vs. Barston, 18 Maine 357; Pickard vs. Low, 15 Maine 48; Brackett vs. Bullard, 12 Metcf. 308; Coty vs. Barnes, 20 Verm. 78; 2 Eng. Rep. 310; \u2014 and if the mortgagor retains possession of the mortgaged property, he remains only as tenant at will or sufferance of the mortgagee, and the latter may obtain possession by action at law \u2014 Story\u2019s Eq. Jur. sec. 1017; 1 Lomax Dig. 327; Milliard on Mort., 149; \u2014 and if the mortgage has been assigned, so may the assignee sue for possession \u2014 1 Lormax Dig. 327, 328.\nThe debt is the principal, and the mortgage an incident, and until foreclosure dr possession, remains a chose in action, and is properly assignable \u2014 4 Kent Com. 193, 7 Greenl. 377; 8 Greenl. 278; 10 Verm. 293; Jackson vs. Willard, 4 Johns. 43; Wilson vs. Troupe, 2 Cow. 195; McCan vs Marshall, 7 Humph. 121; Thayer vs. Campbell, 9 Mis. 280; Dudley vs. Caldwell, 19 Conn. 218; 1 Hilliard on Mort. 164.\n2d. How are mortgages assignable?\nThe assignment of a note, secured by mortgage, may be by delivery only without endorsement thereon \u2014 1 Lomax Dig. 333 to 335; Barnes vs. Lee, 1 Bibb 526; King vs. Harrington, 2 Aik. 33; 2 Day 425; 3 John. C. 322; 1 Root 218; 6 8m. & M. 139; 4 Blackf. 539; 1 John. R. 580; \u2014 and the assignment of the note carries with it all the rights of the mortgagee in the mortgaged proper-to \u2014 Langdon vs. Keith, 9 Verm. 299; 4 Kent. Com. 194; Smith et al. vs. Robinson, 13 Ark. 533; \u2014 and need not be under seal, especially if of personal property, since the mortgage itself is not required to be sealed \u2014 Despatch Line vs. Belamy Co., 12 N. Hamp. 205; 7 Mete. 244; 1 E.L. & E. 584; \u2014 the entire interest of the mortgagee passes by the assignment of the mortgage debt\u2014 1 Lomax Dig. 333, sec. 23; Crosby vs. Brownson, 2 Day 425; Stevenson vs. Block, Saxton 338; \u2014 no written assignment of the mortgaged deed is necessary \u2014 the assignment of the note and the delivery of the mortgage deed is sufficient \u2014 1 Lomax Dig. 135, sec. 32; 4 Kent Com. 193 and 194; Green vs. Hart, 1 John. 580; Pratt vs. Bank, 10 Verm. 294; Keys vs. Wood, 21 Verm. 331; Hil-liard on Mort. 171.\n3d. Can the assignee of the mortgagee sue?\nThe assignee must sue in his own name \u2014 Hilliard on Mort. 179, sec. 50 and 51; 6 Mass. 239; Burdett vs Clay, 8 B. & Mon. 287; Walker vs. Tate, lb. 532; Miles vs. Gray, 4 B. & Mon. 417; Dick vs. Mawry, 9 Sm. & M. 448; Lewis vs. Starke, 10 Sm. & M. 120; Henderson vs. Ward, lb. 631; McConnell vs. Hodson, 2 Gilm. 640; HU. on Mort. 173, sec. 28; Roberts vs. Holstead, 9 Barr 32; 5 N. Hamp. 420; 13 N. Hamp. 247; 1 Lorn. Dig. 327, 328." }, "file_name": "0575-01", "first_page_order": 575, "last_page_order": 579 }