Kea v. . Council , 55 N.C. 345 ( 1856 )

IN 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, he executed a like bill of sale for two other slaves — 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 "certain paper writings," 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 recovery 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: "I, Sabra Council, do hereby convenant and agree to, and with Kinchen Kea, that if he, or his heirs, will, on or before the 6th day of January, 1837, 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 (346) woman, named Molly, and her son, Henry, and her son, John, also her husband, named Jack."

On the 6th day of January, 1837, the following memorandum was added to the above instrument: "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: "Further agreement until January, 1838."

The bill allges [alleges] that, during the year 1838, the defendant, Sabra stated to the plaintiff that it was unnecessary that any 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.

On 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' 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 K. 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 time 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 was 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 Sabra, and that he, the said K. K. Council, bid off this latter (347) slave for himself.

The 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.

The 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 in 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's 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.

The plaintiff alleges that the defendant Sabra is the plaintiff's sister, and the defendant Kinchen K. Council is her son; that from the first of this transaction up to the fall of 1854, plaintiff has 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 them to the (348) arbitrament of two disinterested individuals; that the plaintiff appointed one David Cashwell, and the defendant's 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.

The 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.

The defendants demurred generally for the want of equity in the plaintiff's bill. Joinder in demurrer.

The cause being set down for argument on the bill and demurrer, was heard before his Honor, who overruled the demurrer, and the defendants appealed. The statute of limitations, upon which the defendants rely as a bar to the plaintiff's 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, 42 N.C. 282, it was held that this statute "applied to a right 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." Whether the present is to be regarded as the case of an express mortgage, or as one arising by construction (349) of the Court of Equity, is immaterial; for it is clear that in either case the time of performance cannot be 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 "she wished to keep the said slaves," 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, we hold, very decidedly, that the instrument referred to does not recognize 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, etc., 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's right to redeem; for, if it does, then the (350) defendant Sabra gave up her cause the moment she agreed to appoint judges to decide upon it.

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 be sustained and the bill dismissed.

Per curiam.

Decree accordingly.

Cited: Colvard v. Waugh, 56 N.C. 338.