Carpenter v. Bridges , 32 Miss. 265 ( 1856 )

Fisher, J.,

delivered the opinion of the court.

This was an action of replevin in the Circuit Court of Jasper county to recover a slave claimed by the plaintiff below under a mortgage executed by the defendant.

The only question presented is whether the mortgagor’s possession of the slave after the maturity of the mortgage debt must be treated as prima, facie evidence of the payment or discharge of the debt. If the fact had been established that at the time of the execution of the mortgage, the mortgagee took possession of the slave, and after the maturity of the mortgage debt delivered the slave to the mortgagor, the presumption of payment would then be almost irresistible. But no such facts are shown. It may be conceded that the mortgagee had the immediate right of possession of the property; but the mere fact of the existence of such right would not necessarily imply that the right was exercised or conceded to the mortgagee. The right to possession is one thing, and the actual possession another. In the absence of proof of possession by the mortgagee before the maturity of the debt, it cannot be presumed that the mortgagor acquired his possession from the mortgagee after such maturity, — and as this point alone presents the whole controversy, we are of opinion that the judgment ought to be reversed, and a new trial granted. ■

Judgment reversed, and new trial granted.