{
  "id": 8692268,
  "name": "KINCHEN KEA against SABRA COUNCIL and another",
  "name_abbreviation": "Kea v. Council",
  "decision_date": "1856-06",
  "docket_number": "",
  "first_page": "345",
  "last_page": "350",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Jones Eq. 345"
    },
    {
      "type": "official",
      "cite": "55 N.C. 345"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "simhash": "1:3fea8caabc205efd",
    "word_count": 1967
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  "last_updated": "2023-07-14T15:28:57.092359+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "KINCHEN KEA against SABRA COUNCIL and another."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe statute of limitations, upon which the defendants rely as a bar to the plaintiff\u2019s right of redemption, enacts that, when a mortgagor of personal property shall fail to perform the conditions of the mortgage for the space of two years from the time of performance specified in it, or shall omit for that period after the forfeiture of the mortgage, to file a bill, claiming the equitable right to redeem, such mortgagor shall be forever barred of all claim in Equity to such personal property. 1 Rev. Stat. ch. 65, sec. 19; Rev. Code, ch. 65, sec. 16. In the case of Bailey v. Carter, 7 Ire. Eq. Rep. 282, it was held that this statute \u201c applied to a light of redemption arising by a construction of a Court of Equity, and the time must be computed from the accruing of the right to sue.\u201d \"Whether the present is to be regarded as the case of an express mortgage, or as one arising by construction of the Court of Equity, is immaterial; for it is clear that in either case the time of performance cannot he brought down to a more recent date than the time of the sale of the slaves by the constable in the year 1841; for, after that time, the bill itself states that the defendant Sabra Council always insisted that she would retain said slaves, as she had bought them at the sale made as aforesaid by John G-. Sutton, but that she was willing to pay a fair price for them, if the price paid at the said sale was not their fair value; and that when the plaintiff several times afterwards offered to redeem the slaves, she always replied that \u201c she wished to keep the said slaves,\u201d and that the plaintiff could buy others in their stead. The bill was not filed until the year 1855, so that it is clear the plaintiff has lost his right of redemption, unless some transaction has taken place between the parties to revive it. The plaintiff contends that the agreement in writing to submit to arbitration the matters in controversy between the parties in relation to the mortgage entered into in 1854, does have the effect to displace the bar of the statute, and thereby revive his right of redemption. Without deciding, or even intimating an opinion, whether a distinct written acknowledgment of the mortgage as still subsisting, would have the operation contended for by the plaintiff, wo hold, very decidedly, that the instrument referred to does not recognise the mortgage as still existing and binding between the parties. It does indeed state that there had been a mortgage, but it states also.that the slaves had been sold by a constable, and purchased by the defendant Sabra; and then it sets forth that the parties agree to refer the matters in dispute between them, in relation to the mortgage, &c., to arbitration. Now, what was the matter in dispute in relation to the mortgage ? Clearly, that after the sale in 1841, the plaintiff claimed the right to redeem the slaves and the defendants denied it. The agreement to submit that dispute to arbitration certainly cannot have the effect to acknowledge the plaintiff\u2019s right to redeem ; for, if it does. then the defendant Sahra gave up her cause the moment she agreed to appoint judges to decide upon it.\n\"Whether the plaintiff can have any relief upon the written contract to refer the matter to arbitration, is not a question now before us. We are clearly satisfied that his equity to redeem the slaves is barred. The demurrer must he sustained and the hill dismissed.\nPee. CuRiam. ' Decree accordingly.",
        "type": "majority",
        "author": "Battle, J."
      }
    ],
    "attorneys": [
      "Win. A. Wright, for plaintiff.",
      "Troy, for defendants."
    ],
    "corrections": "",
    "head_matter": "KINCHEN KEA against SABRA COUNCIL and another.\nThe statute of limitations, Rev. Stat, ch. 65, sec. 19, applies to a right of redemption arising from construction of a Court of Equity, and the time must he computed from the accrual of the right to sue.\nInhere the owner of slaves had mortgaged them, and the t\u00edme for redemption was several times postponed by memoranda on the mortgage deed, and finally the right to redeem rested on the parol promise of the mortgagee, to let the mortgagor redeem at any lime; hut after three years the property was sold by a constable, who had executions against the mortgagor, by consent of the parties, on the terms of first satisfying the mortgage debt, and bought by the mortgagee, who held possession for fourteen years under that purchase, denying the right to redeem; Held that the Statute was a bar, and that an agreement to refer the question of redemption to arbitration, which was violated by the mortgagor, did not revive it.\nCause removed from tbe Court of Equity of Bladen.\nIu the year 1835, the plaintiff, being much embarrassed, applied to the defendant Sabra, and at various times during that year, received from her certain sums of money, amounting, in all, to $925 ; and to secure the payment of that amount, executed to her an absolute bill of sale for a certain slave, named Molly, and her child, Henry; and subsequently, upon a further loan, ho executed a' like bill of sale for two other slaves \u2014 John, the child of Molly, and Jack, her husband; and upon the execution of these conveyances, the slaves were placed in possession of the said Sabra; at the same time she executed \u201c certain paper -writings,\u201d in each of which was set forth in substance, that these bills of sale were, in truth, mere securities for the sums of money then loaned; and that, whenever these sums were paid to the defendant Sabra, she was to re-convey the property to the plaintiff. On the 26th of January, 1836, these two paper-writings were surrendered to the defendant Sabra, and in lieu thereof the following instrument of writing was executed, and delivered by her to the plaintiff, viz: \u201c I, Sabra Council, do hereby covenant and agree to, and with Kinchen Kea, that if he, or his heirs, will, on or before the 6th day of January, 183Y, pay to me or my heirs, the sum of nine hundred and twenty-five dollars, ($925,) I, or my heirs, will convey to him, or his heirs, by delivering all proper deeds of conveyance of a certain negro woman, named Molly, and her son, Henry, and her son, John, also her husband, named Jack.\u201d\nOn the 6th day of January, 183Y, the following memorandum was added to the above instrument: \u00a3\u2018 This is to certify that the above agreement is continued until the first day of June next. On a subsequent day, not recollected, there was added to the same instrument of writing this further memorandum : \u201c Further agreement until January, 1838.\u201d\nThe bill alleges that, diming the year 1838, the defendant, Sabra stated to the plaintiff that it was unnecessary that any \u25a0 further agreement should be made in writing, for that he might redeem the said slaves at any time when he might be able to do so; and that relying implicitly on the assurance of the said defendant, he made no special efforts to redeem the said property.\nOn the 1st of January, 1841, one John G. Sutton, a constable, with the consent of the said Sabra, exposed to sale at auction, the said four slaves, also, two other slaves, the children of the said Molly, named William and Nanny, born subsequently to the said conveyance, by virtue of certain justices\u2019 judgments and executions which he had in his hands, to the amount, in all, of between three and four hundred dollars. The defendant Sabra appointed the defendant Kinchen R. Council her agent to attend the sale and buy in the property; that the said agent did buy the said slaves as the avowed agent of the said Sabra, declaring at the same tune that they were sold, in the first place, to satisfy the debt as aforesaid, due the defendant Sabra, and if there was any overplus it ivas to go to the satisfaction of the executions in the hands of Sutton; and the plaintiff alleges that, for the purpose of preventing competition, the said agent declared, at the said sale, that nothing but specie would be received on any bid that might be made for any of these slaves, and that the said defendant was thus enabled to buy all the said slaves, except the child, Nanny, for the defendant Sahra, and that he, the said K. 3L Council, hid off this latter slave tor himself.\nThe plaintiff, in his bill, alleges that the gross amount of the sale of these slaves was $1429,50, which was greatly below their true value at that time, and much less than they would have brought at an execution sale, had such sale been conducted without the oppressive interference of these defendants.\nThe plaintiff further alleges that, since this sale, he has made frequent applications to the said Sabra for permission to redeem the slaves in her possession, and that she has always professed to be willing to come to a fair and equitable settlement and account iu reference to these slaves; but she, at the same time, insisted that she would retain the slaves, as she had bought them, at the constable\u2019s sale, but she was willing to pay a fair price for them, if she had not already done so. He further alleges that, from time to time, he has offered to pay the amount of his indebtedness to her and redeem the slaves; to all which offers she has replied, in substance, that she wished to keep the slaves, and that plaintiff could buy others in their stead.\nThe plaintiff alleges that the defendant Sabra is the plaintiff\u2019s sister, and the defendant Hinchen K. Council is her son; that from the first of this transaction up to the fall of 1854, plaintiff lias been greatly embarrassed; that these facts, with the fact that he had great confidence in the integrity and good feelings of the defendants, caused him so long to delay this alternative of a suit. In the fall of 1854, however, with the assistance of a friend, he was able to tender her the amount due for principle and interest, and did tender her that amount, demanding, at the same time, the slaves in question, with their increase and profits, when she professed a willingness to settle, but wished it postponed until she could see her son, the other defendant, who had been her agent in the business. Afterwards, on the 6th of October, 1854, through an agent, he again applied to the defendant to redeem said slaves, and for an account, when an agreement was entered into in writing between the parties to submit the matters in contest between tbem to the arbitrament of two disinterested individuals; that the plaintiff appointed one David Cash-well, and the defendant\u2019s agent appointed one John O. Daniel, when the parties met according to the agreement and submitted the matter with their writings and proofs, to the said arbitrators, who, not being able to agree, appointed an umpire to decide the matter, when the defendant Sabra, by her agent, the other defendant, immediately receded from the agreement to arbitrate, and declared to the plaintiff that if he ever got anything from the defendants it would be in the Courts of the Country.\nThe bill was filed in March, 1855'. The prayer of the bill is for a redemption of the slaves and an account, also for general relief.\nThe defendants demurred generally for the want of equity in the plaintiff\u2019s bill. Joinder in demurrer.\nThe cause being set down for argument on the bill and demurrer, was heard before his Honor, who overruled the demurrer, and the_defendants appealed.\nWin. A. Wright, for plaintiff.\nTroy, for defendants."
  },
  "file_name": "0345-01",
  "first_page_order": 353,
  "last_page_order": 358
}