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Absalom Fowler and Noah H. Badgett, Appellants, v. Ayers P. Merrill U.S. 375 (1851)

handle is hein.slavery/ussccases0254 and id is 1 raw text is: DECEMBER TERM, 1850. 375 Fowler et al. v. Merrill. Order. This cause came on to be'heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of 'Wash- ington, and was argued by counsel. On consideration where- of, it is now here ordered and adjudged by this court, that the judgmaent of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. AnSALO1I FOWLER AND NOAH H. BADGETT, APPELLANTS, V. AYRES P. MERRILL. The act of Congress passed on the 24th of September, 1789 (1 Stat. at Large, 88, 89), provides that ex parte depositions may be taken before a judge of a County Court. Where a Probate Court is organized for each county in a State, is a court of record, and has a seal, it is sufficient if a deposition under that act be taken before a judge of the Probate Court. Although the day when a mortgage was executed was not stated, yet where it bore a date in its commencement, and its acknowledgment and date of record were both given, and both of them preceded a sheriff's sale of the mortgaged property, it was certain that the mortgage was executed before the sale under execution. Although, when the mortgage was recorded, the laws of the State did not make the mere recording cosvey the title when the personal property thus mortgaged re- mained in the possession of the mortgagor, yet they sanctioned the mortgage un- less it was made without good consideration, and opposed by a bondfi*d subsequent purchaser, who had no notice of its existence. But the fact of recording the mortgage tended to give notice of its existence, and in the present case the evidence shows that the purchasers at the sheriff's sale had notice of the mortgage. Such purchasers must allege that their want of notice continued up to the time of making actual payment; a want of notice merely extending to the time of making the purchase is not enough. Payment might have been refused, and then they would not have been injured. Moreover, between the time when the mortgage was in fact recorded and the time of the sheriff's sale, the State passed a law making such recorded mortgages valid. The increase or offspring of slaves belong to the owner ofthe mother. The decree of the Circuit Court being that the purchasers at the sheriff's sale should either surrender the property to, the prior mortgagee, or pay the value thereof, such value was properly computed as it was at the time of rendering the decree. ,The hire of the slaves was properly charged as commencing when the prior mort- gagee filed his bill for a foreclosure. C THIS was an appeal from the Circuit Court of the United States for the District of Arkansas, sitting as a court of equity. It was a: bill .filed by Merrill, the appellee, against Fowler

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