#### William Shepperd and others v. The Ex’r of Andrew Murdock, dec’d.

1 V From Orange. J

A negro slave being mortgaged in 1784, and the parties living in the same neighborhood all the time, the mortgagor never applied to redeem until 1806'. The mortgagee in answer to the application said, “ he was old and unwilling to have a law-suit; and he would deliver up the negro, if the mortgagor would pay the money loaned, with interest, and charge nothing for the hire of the negro. — This is a recognition of a then subsisting unsatisfied mortgage, and relieves the Court from considering whether in this country the time of redemption should be shortened, from the policy of our laws in quieting claims at law within a shorter period than is required in England.

The time is to be computed from the last period at which tlie parties treated the transaction as a mortgage ; in an action at law, the acknowledgment of tlie mortgagee in this case would take tlie case out of tlie statute of limitations. For as the law requires not an express promise for the creation of a duty, but raises the promise whenever there is a sufficient legal consideration, so it will keep that promise alive, where there is an acknowledgment of a sufficient subsisting unsatisfied consideration.

Nor can-it avail the mortgagee any thing, that he declared he would give up tlie negro, to buy his peace. Things exist independent of their names ; if from the nature of tlie thing it afford no evidence of tlie debt or duty, if the sole object of it was to avoid labor or expence, not from a belief of loss in tlie tiling itself then it can weigh nothing, because it confesses nothing; and if it be taken as the confession or ac-knowledgement of the party, and taken altogether, there is no debt or duty acknowledged. But if from the nature of the offer, confession or acknowledgment, tlie Court perceive in it an acknowledgment of the debt or duty, that weight is to be given to it, which is given to all other evidence, notwithstanding the party, at the lime of making it, attempt to give it a name which he thinks will make it weigh nothing.

Complainants filed their bill to redeem a negro slave mortgaged to the Defendant’s testator many years before the fding of the bill; and the facts as agreed upon by the counsel were as follow,' — ■

On the 21st day of December, 1784, William Shepperd being in possession of the negro boy Limus named in the bill, borrowed 30Í from Thomas Willson, and to secure *219the payment thereof executed to Willson a deed in the following words, to wit,

“ Know all men by these presents, thatl, William Shepperd, of Orange C! County, in the State of Nortli-Carolina, have bargained, sold and deli- •' vered unto Thomas Willson of the County aforesaid, and by these pre- “ sents, in plain and open market according to due form of law, have bar- “ gained, sold, set over and delivered, one negro boy Limns, about eight “ years of age, unto tbe said Thomas Willson, for and in consideration of “ the sum of thirty pounds, in gold and silver to me in hand paid, by the “ said Thomas Willson ; and I do hereby warrant the title of the said nc- “ gro boy, to the said Thomas Willson from the right, claim or title of “ any person or persons whatsoever : Provided nevertheless, and it is “ hereby agreed by and between the said parties, that if the above said “ William Shepperd, his heirs or assigns, shall well and truly pay or “ cause to be paid unto the said Thomas Willson, Hie aforesaid sum of thirty pounds, in gold or silver, with lawful interest from the date “ hereof, on or before the 20th day of March, next ensuing the date “ hereof, tiren and in that case, the title to the said negro boy Linius, “ shall revert to and be vested in the said William Shepperd, and not otherwise. — Witness my hand and seal, the 21st day of Deck, 1784.

MYM. SHEPPERD, (Seal.)

“ Done in presence of

“ Win. Ray,

“ Saxxy Haywood.”

“ December 22d, 1784.

“ I acknowledge to stand to the risk of the within negro’s life, and if “ he should die in the space of the time within mentioned, that it shall “ he my loss.

“WI, SHEPPERD.”

On tbe first day of May, 1790, Thomas Willson assigned tbe said deed to Andrew Murdock, who took possession of the negro Limus immediately and continued in possession until the filing of this bill. In tbe fall of the year 1790, Murdock called upon Shepperd, and requested him to take the negro Linius and pay him the thirty pounds with the interest which had accrued thereon. Shepperd refused. He lived within twelve miles of Murdock’s residence, and was in good circumstances, able, at any time from the year 1790 to the filing of the hill, to advance the thirty pounds and interest.

In February, 1805, Shepperd tendered the money which Willson had loaned to him, with the interest which had *220accrued, and demanded the negro, and seven hundred dollars for his services whilst in Murdock’s possession. Mur-dock refused to accede to the demand; but saying that lie was old and unwilling to have a law suit, he declared his willingness to deliver up the negro Limns, if Shepperd would pay him the thirty pounds with interest, and demand nothing for the negro’s services. .

In the fall of 1805, Shepperd filed this bill to redeem the negro, and prayed for an account. Murdock, in his answer, insisted upon the full price at which the negro had been mortgaged, upon his application to Shepperd in the year 1790, to redeem, and Shepperd’s refusal, upon the lapse of time from 1790 to the filing of the bill in 1805, upon Shepperd’s ability to advance the money, and the understanding of the parties as to the risk of the negro’s life after the 25th of December, 1785.

It was submitted to this Court to decide, whether the Complainants be entitled to redeem ; and if so, upon what principle the account for the services of the negro ought to bo taken.

Henderson, Judge,

delivered the opinion of the Court:

This must be either a contract of sale or mortgage ; it cannot be both, nor can it be one without possessing all its essential requisites. The attempt, therefore, to throw on the mortagee the risk of the life of the negro, after a particular period, and when it was a mortgage, was vain. It is true it is a circumstance to show it was not a mortgage.; but it is of no avail, allowing it to be one. For it is impossible that a thing shall be and not be at the same time. Assuming this to be a mortgage, as it unquestionably is, the risk nf the slave’s life was with Shepperd as long as the contract continued a mortgage; that is, as long as the slave was redeemable.

The principal question in this case is, whether the equity of redemption be lost; and we are relieved from the decision of the point pressed upon the Court, that in tills *221country tlie time of redemption should be shortened, from the policy of our laws in quieting claims at law within a shorter period than is required in England : For we consider the transaction of 1805, a few months before this bill was filed, as a complete recognition of its being then an existing mortgage. The time is to be computed from the last period at which the parties treated the transaction as a mortgage. Here the Defendant, Murdock, offered to surrender the slave, if the mortgage money and interest should be paid to him, and the hire given up. This is acknowledging the tenure by which lie held him; that he had never foreclosed the equity of redemption, and that Shep-perd had never released or abandoned it. In an action at law, where the statute of limitations were relied on, it would have taken the case out of the statute, although ho demanded an exemption from the hire. For as the law requires not an express promise for the creation of a duty, but raises the promise wherever there is,a sufficient legal consideration, so it will keep that promise alive whore there is an acknowledgment of a sufficient subsisting, unsatisfied consideration. As if a man were to say, that eí I purchased “ a horse of you twenty years ago, for which I agreed to “ give one hundred pounds; but I have never paid “ you, and I never will, and I shall rely on the statute of “ limitations.” There can be no doubt but that this would take the case out of the statute of limitations, contrary to his express declaration. So Murdock refusing to deliver up the negro upon, the usual terms of redemption, yet acknowledging enough to shew that it was an unsatisfied mortgage, shall be compelled to surrender up the mortgaged property upon the usual trams; nor can it avail him any thing, that he declared that he offered those terms to buy his peace, by way of compromise. Things exist independent of their names : their names are only to point out or designate them. The thing is not altered by its name : Call it as you please, it remains the same thing still. If from the nature of the thing it afford no evidence *2220f the debt or duty, if the sole object in making it was to avo*d labour or expense, not from a belief of loss in the thing itself, then of course it can weigh nothing $ because it confesses nothing, and if it be taken as the confession or acknowledgment of the party, and taken altogether, there is no debt or duty acknowledged. But if from the nature of the offer, confession or acknowledgment, call it what you will, the tribunal which decides the fact, perceives in it an acknowledgment of the debt or duty, that weight is to be given to it which is afforded to all other evidence, notwithstanding the party, at the time of making it, attempt to give it a name which he thinks will make it weigh nothing. In'this case, there cannot be a doubt that the party misnamed it, in saying his only object was to buy his peace. His object was, to liquidate a claim from which he had serious apprehensions. It must, therefore, bo considered as a recognition of the mortgage.

This may be called a hard case, because Shepperd lay by so long. But Murdock might have hastened him, by calling upon him in a Court of Equity, to redeem or to be foreclosed. Shepperd may, therefore, redeem upon paying the principal and interest due on the mortgage, up to the time of redemption; for his exorbitant demand for hire, discharged the virtue of the tender in 1805. Murdock must account for a moderate hire up to the same period, and be allowed for all expenditures made on the slave, of every description, and for loss of time. The Court would make Shepperd pay the costs, were it not for the precedent — Each party must pay his own costs.