Shapley v. Rangeley.

time the check became payable. And on the other hand, the trustees were willing to accede to this, so far as they might, without relinquishing any advantage and security for their debt, which they had obtained.

In order to accomplish safely both of these ends, the parties might be considered as agreeing in substance to the foreclosure of the mortgage, for the stronger security of the bank, because actual payment had not been made; but at the same time agreeing further to a conveyance of the premises to Spring or any of his creditors, who might complete the payment of the mortgaged debt as soon as the check should fall due.

It would be unjust to treat the transaction as a payment and a mere discharge of the mortgage. Willard v. Harvey, 5 N. Hamp. 252. Because that would strip Webster, who advanced most of the money, of all security for it; and it would do this also against the clear intent of Spring, the mortgagor, who not only procured a conveyance of the premises to be made to Webster by the bank, which is inconsistent with an intent merely to discharge the mortgage, but took back a writing from Webster, stipulating to permit Spring to pay him the sum advanced at any time within three years; and then to receive back a conveyance of the premises. All this shows explicitly Spring's intention not to have the money paid to the bank applied simply to discharge the mortgage, but rather to have the bank's title under it conveyed to some third person. See on this Powell on Mort. 1088; 2 Cow. 248; Gleason v. Dyke, 22 Pick. 390; Smith v. Moore, 11 N. Hamp. 55, 62, and cases there cited; 5 Ibid. 252, 430.

Under these views, it is quite clear, that the parties must in equity be regarded as intending to have an absolute estate exist in the bank, but under a stipulation that it should be conveyed to Spring or his appointee, at the time the check became payable, if the money was then paid; that

Shapley v. Rangeley.

such an estate was conveyed to Webster by the bank, he being properly selected by Spring to receive the conveyance on account of his having advanced most of the money, and that Webster thenceforward held an absolute estate, and not an assignment merely of a mortgage. James v. Johnson, 6 John. Ch. R. 417.

It was not an assignment of the mortgage merely, for other reasons, because it had become foreclosed, and must be so considered in order to enforce the views of the parties, and the equities of the case. Nor does it purport to be a mere assignment, as the note and mortgage deed were given up to Spring rather than transferred to Webster, — he getting a conveyance of the premises only. Had he been a mere assignee of the mortgage, the respondent's extent on his interest would probably be irregular and invalid, and hence of no avail. Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484.

So if Webster's writing executed to Spring could have converted the title he acquired into a mortgage, no legal interest, that could be extended on, remained in him.

But Webster's writing to Spring was not sealed, nor given the same day with the deed; nor was it an agreement between the parties to the deed. And this would prevent it from being what it otherwise might be, a defeasance, and the deed coupled with it a mortgage on its face. Wendell v.

Merrimack Bank, 9 N. Hamp. 404.

It is clear, that, but for the circumstance of the writing not being between the grantor and grantee in the deed, it might be held in chancery, if Webster could sue Spring for the money, that such writing converted the deed into a mortgage. 6 Johns. Ch. R. 417; James v. Morey, 2 Cow. 246; Flagg v. Mann, 2 Sumn. 486; 4 Kent, C. 141; 2 Story, Eq. Jur. $ 1020; Porter v. Nelson, 4 N. Hamp. 130; Dey v. Dunham, 2 Johns. Ch. R. 182; S. C. 15 Johns. R. 555. Possibly Spring, if he choose, might in chancery have the land

Shapley v. Rangeley.

charged with a trust or mortgage, before any third person had bought or levied on the premises without notice of Spring's claims.

But as to such third persons levying on it, or purchasing as here, without notice, the title of Webster must be deemed an absolute one; and although the Court would go far, when the rights of no third persons had intervened, to enforce a specific performance of this contract, if not to charge the land with it in trust or mortgage in case of seasonable payment by Spring or his assignee, and application for that purpose, yet this does not change the interest that passed from the bank. In Rangeley v. Spring, 21 Maine, 130, 137, it seems to have been settled, on a state of facts much as in this case, that a freehold estate at least has vested in Rangeley.

These conclusions seem well to protect every interest, that has been concerned in the transaction, whether in lending or borrowing; and do not affect unfavorably, in an equitable view, any subsequent purchasers from Spring, like Shapley, of the three acre lot.

Shapley has paid nothing since to entitle him to any new position, coming in, as he did, originally after the bank, and therefore should so come now. Nobody else has paid any thing in his behalf with a view to give him a new or better position. On the contrary, he has looked on in silence, and seen others perfect their prior rights; nor have they as yet, it is supposed, realized any thing beyond the prior debts from all the mortgaged premises. And if the evidence were less doubtful as to the value of the whole compared with the whole debt, it does not, after a foreclosure, authorize us to recal a part of the premises as in this bill is prayed, nor to re-open the right to redeem in behalf of him, when this is not prayed for. But the proper course for the complainant, if the whole mortgaged premises near the time of the foreclosure were worth more than the debt, was to have gone forward and paid it, and got an assignment of the whole before the time expired.

The United States v. Libby.

That would have vested an absolute estate in him of the three acre piece, if Mrs. Spring be not interested in it, and Spring could not have redeemed the rest of him without paying the whole debt. Saunders v. Frost, 5 Pick. 259. But on the case, as it now stands, we see no equity that requires us to interfere. More especially is this the case if Mrs. Spring did not join in the deed to him, provided she is interested in the three acre lot. But her rights we do not examine, as it does not become necessary for a just disposal of the case.

Bill dismissed, with costs.

THE UNITED STATES VS. CYRUS LIBBY.

If a vessel sail from the United States, owned by a citizen and under instructions to correspondents in Rio, to sell her within a limited price or charter her, the commencement of her voyage is legal on its face. If the consignees charter her to a Brazilian for one year, at the ordinary rate of freight, and not to be employed in carrying merchandise or passengers, which are unlawful, the charter on its face is legal. If under it, goods are put on board, consisting of rum, cotton goods, brass rings, gunpowder, &c., suitable for sale or exchange in Africa for slaves, and these articles with their owner, are carried to their eastern coast thereof, and landed at slave factories, this standing alone is not prohibited by any act of Congress.

But this and other acts of the captain, such as seeing the purchase of slaves there by the owner of the goods, the shipment of them to Brazil in other vessels, and the bringing him and other free persons hither, who had an interest in the slave trade, are evidence, from which it is competent for the jury to infer, unless satisfactorily rebutted, that the master was himself intentionally coöperating and interested in the slave trade, and taking a part in its gains and criminality. But he would not be liable for a capital offence, committed on board his own vessel, unless he did so cooperate, and decoy, force or receive some African on board there, with intent to make him a slave.

If one came on board there with other blacks, the crew of the pilot, and staid but a few hours, and the captain was busily engaged, and did not know him to be a slave, on his way to be sent in another vessel to Brazil, it was not such a receiving of him as the law contemplates.

The United States v. Libby.

So if he received two other Africans on board there, and brought them to Brazil, without actually supposing them to be free, he would be guilty, either of a misdemeanor or capital offence, as he was merely carrying them for others, or was aiding and acting with others as a participator in the design to make men slaves longer, who were before in bondage, or to reduce those to slavery, who were before free.

It was adjudged to be competent evidence against him as to his intent on these points, that his vessel was chartered by persons who turned out to be slave-dealers; remained a year or more in their company and employment in carrying merchandise and free passengers; knew their business in Africa; and returned to Brazil in their company.

So, on the other hand, it was ruled to be competent for him to show, that he took no persons on board his vessel, knowing them to be slaves; that he neither bought, nor sold, nor kidnapped any; that the two blacks, whom he knowingly received on board and brought to Brazil, had free papers, as if manumitted, and that he believed them not to be slaves.

It was adjudged to be evidence of the genuineness of their manumission papers, that they were attested and sealed by persons, purporting to be Portuguese notaries public on that coast, and who had acted as such in other business; that they were on the kind of paper and under the stamp used there in the public offices, were lodged with the proper authorities in Brazil, and the Portuguese consul there certified to the notaries being regular officers of his government, and that the American consul at Rio obtained and sent to this country all these papers with translations.

It was ruled, that they must be presumed to have been executed at their date, if no evidence appeared to the contrary; and, though this and the other matter just referred to, might fail to satisfy the jury, that the papers were in truth genuine, yet if they believed the master supposed them to be genuine, and took the two Africans who had them, on board, supposing them to be in truth free, he was not liable to punishment.

To show the intent of the master, any acts by him on the voyage, and so near the time of the offence charged in the indictment as to be connected with it and bear on it, were admitted on the part of the United States; but not what was done in a previous voyage on the western coast of Africa.

A passenger is not one of the crew or ship's company, within the meaning of the act of Congress.

If a principal in a transaction be not liable under our laws, another cannot be charged merely for aiding and abetting him, unless the other do acts himself, which render himself liable as a principal.

Intents and acts, tending to make some one a slave, are both necessary under the

act of Congress of 1820, ch. 113, to convict a person of a capital offence; though under other laws of Congress a person may be guilty of a misdemeanor for merely transporting slaves from one place to another abroad.

Nothing can be punished under the laws of the United States, which they do not make criminal; and the transportation of any kind of goods to Africa by the owner or a carrier, is not yet made a crime by any act of Congress, independent of the intent with which it is done.