#### BENJAMIN BURGIN, sr. vs. JAMES BURGIN, sr. et al.

Where a debtor conveyed' a slave, together with other property, both real and personal, to his creditor, to hold to him and his assigns forever, but the deed was expressed to be made upon condition that if the debtor should pay the amount due by a certain time, it was to bo void; and the creditor covenanted that, until that time, the debtor should retain the possession and enjoyment of the property; and, before the expiration of the time, the creditor, with the assent of the debtor, took possession of the slave, from whom he was taken under an execution in favour of another person against the debtor, it was held, that under the deed, the creditor had the legal title of the slave; and that only such an equitable interest remained in the debtor as could .not be taken and sold under an execution; and that, for the taking the slave under the execution' ágainSt the debtor, the creditor might maintain an action of trover.

This was an action of Trover, for the conversion of a negro boy, named Isaac; and upon the trial; at Burke, on the last circuit, before his honor Judge Haul, the case was as follows:

Benjamin Burgin, the younger, by a deed duly executed, on the 4th of December; 1837,'conveyed to the plaintiff sundry articles of real and personal property, among which was a negro boy slave, named Isaac, to have and to hold unto the plaintiff, his heirs and assigns forever. The said deed was expressed to be made upon the condition, that if the bargain- or should pay to the plaintiff, on or before the 16th day of August following,-the sum of $3,669 05 3-4 cents, and on or before the 2nd day of December following, the further sum of $ 100, (these being, the respective amounts of two notes of the bargainor, holden by,'and” due unto the plaintiff,) the said *161deed should be void. And it was by the said deed further provided, that if payment should not be made as aforesaid, then the plaintiff should enter upon, and take possession of, the premises, and make sale thereof, and out of the proceeds pay himself the said sums, and, for the surplus of the proceeds, if any, account with the bargainor; and thereby the said plaintiff did covenant with the- bargainor, that until there should be a breach of the foregoing condition, so as to entitle the plaintiff to enter, the bargainor should remain in the quiet possession and enjoyment of the premises. In virtue of this deed, and with the consent of the bargainor, the plaintiff took possession of the negro Isaac in the month of January, 1838; and, oil the 14th of April, 1838, the defendant, Curtis, assisted by the defendant, Burgin, and indemnified by the defendant, Fleming, took him out of the possession of the plaintiff, as the property of Benjamin Burgin, jr., to satisfy an execution issued on that day, against the goods and chattels of the said Benjamin, on a judgment rendered before a justice of the Peace in favour of the said Fleming. The negro slave Isaac was, under this taking, withheld from the plaintiff forty days, and then re-delivered — and the question was, whether for this taking and detaining of the slave, the plaintiff could maintain trover? It was in evidence, that at the time of the execution of the deed to the plaintiff, Benjamin Burgin, jr. was much involved in debt; and, from and after the execution of that deed, was deemed to be insolvent. On the part of the defendant it was contended, that under the deed aforesaid, Benjamin Burgin, Junior, was, at the time of the said taking and detention, entitled to the possession, use and enjoyment of the said slave — and that it was fraudulent in him, as against his other creditors, to surrender the property to the plaintiff, before the expiration of his allotted term of enjoyment. The Court instructed the jury, that if the deed to the plaintiff waS executed bona fide to secure' the payment of a debt truly due the plaintiff, and not to delay or defraud creditors, the .plaintiff under that deed had such an immediate legal interest in the slave Isaac as would entitle him to maintain the action of trover. The plaintiff had a verdict and judgment, and the defendants appealed.

*162No counsel appeared for either party in this Court.

Gaston, Judge,

having stated the case as above, proceeded as follows: By the operative words of the deed, the whole legal interest of the bargainor in the subject matter of the conveyance passed to the plaintiff, subject to a condition subsequent, upon the happening of which, that interest was to be divested. But, in the mean time, and unless that condition should be performed by the bargainor, the interest of the plaintiff was, in law, absolute. In the contemplation, however, of a Court of Equity, the conveyance was but a security for the payment of a debt, and the plaintiff a trustee, holding the legal estate subject-to the trusts in the deed contained. One of these trusts was, that until failure in the performance of the condition, the bargainor should retain the possession, use and enjoyment of the property. If this beneficial interest of the bargainor were liable to seizure and sale under execution, then it would seem that the taking of the .slave Isaac, under the execution of the defendant, Fleming, might have been justified. But it was not so liable. The common law knew nothing of,, and of course regarded not equitable interests; and, under our statute of 1812, re-enacted in Revised Statutes, title Executions, ch. 45, sec. 4, this -interest, if equitable merely, was not subject to executions, because it was not co-extensive with the legal interest. See McKay v. Williams, 1 Dev. & Bat. Eq. Rep. 398. The taking and detention of the slave in question were, therefore, tortious; and, for this injury, the defendants were in law liable to him who at law owned and held the slave. Such is the view which must be taken of the case, if the interest reserved in the deed to the bargainor be purely an equitable interest. But if it be of a legal nature. — so that at law, the bargainor was the temporary owner of the slave until failure of the condition, the result would be very different. The plaintiff could not then maintain trover for a conversion of the property, while this legal interest was outstanding in another — -mpr- could he set up a mere voluntary surrender of this interest to the injury of an existing creditor — and the interest itself would be the subject of seizure and sale, under Fleming’s execution.

*163We are of opinion that the interest reserved to the gainor was purely equitable. The legal construction of the instrument is, that the dominion thereby passes to the bargainee, subject only to the condition of defeazance; and the bargainee covenants to permit the bargainor to have the possession of the bargainee’s property for a limited time. If the bargainee were to break this covenant, and take possession against the bargainor’s will, before the expiration of that time, the sole remedy of the bargainor would be on the covenant. He could not bring detinue — or trover — or trespass for the property. — because he had no dominion in it. In law, this covenant is personal; and, in law, the covenantee may at pleasure waive it.

We are in this action restrained to the consideration of the legal rights and relations of the parties. And it by no means follows, that because according to these, the plaintiff must be regarded as the owner of the property under the deed from the time of its execution, therefore he is not to account, in a proper forum, for the profits of the property until there was a sale pursuantly to the requisitions of the deed.

Per Curiam. Judgment affirmed.