Volume 1 — South Carolina Reports

<p>The Supreme Court lias no power, in a criminal case, to set aside the verdict of a jury and grant a new trial, upon the ground that the verdict is unsupported by evidence.</p> <p>A confession made by the prisoner was received in evidence, but upon its appearing that it had' been obtained by undue means, tlie presiding Judge ruled it out, and in his charge to the jury instructed them “ that the confession was incompetent as evidence, and had been ruled out.” Held, That this was equivalent, in effect, to an instruction to the jury, that the confession was not to be considered by them, orto have any weight or influence in their deliberations.</p> <p>The presiding Judge stated, in his report, that he “instructed” the jury relative to the proper inference of fact to be drawn from certain portions of the evidence. Held, That it was not a necessary or reasonable inference, from the report, that the Judge did more than communicate his impressions, leaving the jury to accept or reject them 5 and, therefore, although an instruction as to a material fact that virtually displaces the proper functions of the j ury is error, yet that no such error was committed in this case.</p>

<p>On the 29th January, 1866, F and L, by written articles of that elate, formed a copartnership in the business of barbering:. The material stipulations were: (1) That the copartnership should continue for ten years. (2.) That the business should be carried on at the building and lot No. 362, &c., owned by F, at a yearly rental of seven hundred dollars, to be paid him by the firm. (3) That the parties should contribute equally, and the profits be equally divided. (4.) That regular books should be kept 5 and, (5.) That, if either party should die within the ten years, the copartnership should be regarded as ended, and a settlement be made : Provided, That if F should die within tlie ten years L should have the right to retain the said building and lot until the expiration of that period “ upon the same terms and annual rent which, by these articles, it is stipulated should bo awarded to F for the use thereof.” F died in September, 1866, and L continued to carry on the business at the same building‘and lot. Held, That the copartnership was dissolved by the death of F, and that L was not liable to account to F’s executor for profits made after the dissolution.</p>

Befoee J. J. DAYIS, Esq., District Judge, Laurbxs, May Term, 1868. The report of the presiding Judge is as follows : “ This defendant was tried for stealing two hogs, the property of Stephen Williams, (freedman). On the 14th day of March last, Stephen Williams lost two hogs — a red one and a black one.

Bepoee GLOVER, J., at Chambers, Orangeburg, April, 1868. This was a suggestion by Isaac W. Hayne, Esq., Attorney General of the State, setting forth that there was due to him by the State, for his salary for the last six months of the year 1864, the sum of 1550 ; that said sum was standing on the books of the Treasury to his credit, and that William Hood, State Treasurer, had, upon demand, refused to pay the same; and praying that a rule may issue, directed to the said…

Before GLOVER, J.,'at Charleston, June Term, 1868. The report of his Honor the presiding Judge is as follows: “ The action was on a policy of insurance for the term of eleven months, dated November 2,1866, to recover for a total loss by fire, occurring February 14, 1867, at night, in the absence of the insured. ITis books were lost or destroyed, except a few leaves of a small memorandum book.

This was an application to the Supreme Court for a writ of mandamus.

This was a suggestion to this Court, praying for a writ of prohibition to restrain the Columbia and Augusta Railroad Company, the respondents, and the Hon. Z. Platt, Judge of the Second Judicial Circuit of the State, and the Clerk of the Court for Edgefield County, from proceeding, under an order by His Honor Judge Platt, to condemn and appropriate to the use of respondents certain lands and right of way of the relators, until the necessity and propriety of such…

<p>where, in a suit for partition, land is sold for distribution of the proceeds between the tenants in common, the liens of judgments against one of the tenants are transferred from his share of the land to his share of the proceeds of the sale, and the legal priorities of the liens are not affected by the sale.</p> <p>In such eases the judgment creditors may intervene by petition or rule.</p> <p>The decree below examined and held not to be final, and, therefore, not to be appealable, except in its relation to one only of the three causes in which it was entitled.</p>

Befoeb WILLARD, A. J., at Chambers, CharlestoN, Oct., 1868. This was an information by the Attorney General, praying that a rule do issue, to be served upon the President and Directors of the Bank of the State of South Carolina, the respondents, requiring them to shew cause why a mandamus should not be awarded, commanding them to deliver to His Excellency the Governor of the State all the real and personal estate, assets, choses in action and books of account of the…

Befoee DAWKINS, J., at Newberry, Spring Term, 1867. Sum. pro. or a merchant’s open book account for goods sold in the year 1861, previous to the 21st December. His Honor gave a decree for the plaintiff for $33.67, the amount of the account, and for interest thereon. The defendants appealed, on the ground that'the Act of December 21, 1861, under which the interest was allowed, was unconstitutional and void, so far as it affected contracts then existing.

BEFORE THE DISTRICT JüDGE, AT LEXINGTON, FEBRUARY Term, 1867. This was a prosecution for bastardy, commenced by warrant to arrest, dated October 27, 1866. Anna M. Craps, wife of Henry Craps, was the prosecutrix, and the charge was, that she was the mother of a bastard child, born January 17, 1861, and that defendant was the father.

<p>An appeal, tafeen, before the passage of the Aet of August SO, 1868, regulating appeals and writs of error, Is not subject to the objection of want of finality in the decree.</p> <p>Where the credibility of a witness is assailed on the score of character, and he is discredited, his depositions are not to be disregarded altogether as those of an incompetent witness, but should have such weight as, under the circumstances, is due to them as discredited testimony.</p> <p>Where two were in copartnership in the business of buying and selling slaves, the liability of one to account to the other is not founded upon a contract, the consideration of which was the purchase of slaves, within the sense of those terms, as used in Article á, Section 3£, of the Constitution.</p>

Befoee CARROLL, Ch., at Chester. The bill in this ease was exhibited by Eliza Ragsdale, William Glaze and others, naming them, “suing for themselves ■ and such other creditors of Lewis A. Beckham as shall come in,” &c. It alleged that Lewis A. Beckham,' having made his will, and thereby appointed T. H. Beckham executrix thereof, departed this life in March, I860 ; that the executrix qualified and took the estate into her hands and filed an inventory thereof; that she…

<p>Where a decree of the Court of Appeals disposes of all matters of defence that had heen made in "the cause, and refers it to the Commissioner to ascertain, a certain fact — as, for instance, the amount of a mortgage debt — upon the coming in of the report new questions cannot he raised, by exception, which should have been taken before the appeal decree was made. The defendant is concluded by the appeal decree from a ground of defence that does not necessarily and legitimately arise under it.</p> <p>Conclusions of the Commissioner, upon questions of fact, which the Chancellor has sustained, will not be disturbed by the appellate Court, unless it be very clear, from the evidence, that other results should have been attained.</p>

Before GLOVER, J., at Charleston, June Term, 1868. Tbe report of His Honor, the presiding Judge, is as follows : “ The action was debt against the executors of the late Mitchell King, who was the surety of A. M. Huger on a bond in favor of the plaintiff, C. T. Lowndes, executor of the late Jacob Bond I’On, and the following is a narrative of the facts of the case, shown by the evidence: “ A. M. Huger, wishing to raise, money, applied to the plaintiff, who advanced it from…

Before GLOVER, J., at Edgefield, Maroh Term, 1868. This was an action of debt on a joint and several note, under seal, given by the defendants and one Joel Cany to John Jones, deceased, the testator of the plaintiffs. The pleas were, non est factum and failure of consideration. At the trial defendants’ counsel moved for a non-suit, on the ground that Cany should have been joined as a defendant in the action.

BeeoRe LESESNE, Ch., at Manning, May; 1868. This was a bill by the plaintiff, as executrix of James S. Tindal, deceased, alleging that the estate of the testator had become insolvent by the emancipation of his slaves, and praying that it be wound up by the Court. The legatees and devisees, and some of the creditors, were made parties defendant.

<p>The Supreme Court has no power, under the Constitution, to award new trials for errors of fact in the verdicts of juries. Its authority, in granting new trials, is limited to eases where there are errors of law in the decisions and rulings of the Judge.</p>

Before CARROLL, Ch., at Edgefield, June, 1868. These eases came before the Court on appeals from the decrees of His Honor, the Circuit Chancellor, overruling exceptions which had been taken to reports of the Commissioner upon questions of fact merely.

Before LESESNE, Ch., at Edgefield, June, 1867. This case will be sufficiently understood from the Circuit decree, and the statement contained in the judgment of the Supreme Court. The Circuit decree-is as follows : Lesesne, Ch. The testator, James Tompkins, was appointed guardian of the plaintiff, Atticus C. Tucker, and his deceased brother, Pickens L. Tucker, in the year 1856, and gave bonds to the Commissioner of this.

<p>Executors who purchased, at their owa sale, slaves of their testator’s estate, cannot, in accounting to a legatee, set up as a defence, under Art. 4, Sec. 34, of the Constitution, that their liability arises from the purchase of slaves.</p> <p>The obligation of an executor to account to a legatee springs out of the relation of the parties, and a purchase by the former, from himself, of the chattels of the estate, does not convert the obligation into one arising from the contract of sale.</p>

<p>A Chancellor had power, in ordering a sale for foreclosure, to direct the sale to he mad e by any officer of the Court, or even by one who was not an officer (a) So much of an order for sale as designates the officer or person by whom it is to be made is administrative, and may be modified, changed or rescinded by a sticceeding Judge.</p>

Before JOHNSON, Ch., at MaeioN, Decembee, 1868. This case first came before his Honor Chancellor Johnson, at Marion, February, 1863, when he pronounced a decree therein as follows: JohnsoN, Ch. On. the 21st day of September, 1859, the defendant, Cyrus B. Haselden, purchased from Richard P. Ellerbe a tract of land lying and being in Marion District, and containing three hundred and nineteen acres, more or less, for the sum of six thousand dollars, payable as follows, to-wit:…

<p>Before DAWKINS, J., at Newberry, Spring Term, 1867.</p> <p>The report of His Honor the presiding Judge is as follows:</p> <p>“The defendants were sued as sureties of B. F. Payne, on a sealed note, bearing date 18th November, 1862, for $5,300, payable to the administrators of George Long, and by Michael Werts, one of the administrators, assigned to the plaintiff, on the 1st March, 1864.</p> <p>“The consideration of the note was a family of s'even negroes, purchased by Payne, at the sale of the property of the intestate. They were proved to be likely. One witness said “they sold for but little more than they would before the war,” and Gen. Kinard said “ they sold rather higher.” It was not pretended the negroes, or any of them, were unsound. The defence insisted on was a defect of title in consequence of the emancipation of the slaves, and, further, that plaintiff was bound to -take payment in Confederate money. Upon the first ground, I ruled and charged that the title to the negroes vested in Payne when the terms of the sale were complied with. That the warranty of title only extended to a paramount one outstanding, and not against the future action of the State, when, from considerations of public policy, it saw proper to emancipate. The loss must fall on the legal owner. In j>oint of fact, however, the negroes had been sold by Payne when he had an undisturbed possession of them. It was proved Payne received Confederate money for them, which is undisposed of. I am unable to perceive in that any reason why the loss should be visited on plaintiff. It was one of the hazards of the times.</p> <p>“I was not impressed with the other ground. The proof was that the negroes sold for but little more than they would have brought before the war; and, though it may have been expected that it would be paid in the currency of the country, when the note fell due, yet there was no stipulation to that effect. There never was any tender, even of Confederate money, to the holder of the note. Werts, the administrator, said he met Payne and Spearman in the road, who said they had been to his house to pay, and offered to pay the note. He informed them he had that day assigned the note to plaintiff. This was on the 1st March, 1864, three months after the note fell due. No application afterwards was made to the plaintiff to p>ay it.</p> <p>“I thought the plaintiff entitled to recover the amount of the note. The jury thought otherwise, and found for him something over $800, (amount not recollected,) and I doubt, if he succeeds in his motion, whether he will ever do better.”</p> <p>The plaintiff appealed, and now moved this Court for a new trial, upon the grounds:</p> <p>1. Because the defendants pleaded failure of consideration, relying upon the emancipation of the slaves, for whose purchase money the note sued on in this case was given, to sustain that plea; and because it was in proof that the principal in the note, the purchaser of the slaves, sold them before they were, in fact, emancipated, and was paid for' them; they, therefore, should not have been relieved from the payment of any part of the principal and' interest on the note.</p> <p>2. Because the verdict is unsustained by the law and the evidence of the case.</p>

Before BOOZER, J., at Chambers, Columbia, May, 1869. This was a bill to foreclose a mortgage of real estate. On March ■2, 1869, a decree of foreclosure was made, and the Clerk of the Court was ordered to sell the mortgaged premises on the first Monday in April. On that day he offered them for sale, and they were bid off by James Windsor, who refused to comply with the terms of sale, and this was a rule against him to show cause why he should not be attached for contempt.

Befoee LESESNE, Ch., at Charleston, March, 1867. This was a bill to wind up the estate of Rev. P. O’Neil, deceased, under an order calling in creditors. The trustee of Mrs. Elizabeth Jones presented and proved a claim, by bond and-mortgage, dated 12th November, 1859, the bond being conditioned for the payment of four thousand three hundred and thirty-three dollars and thirty-four cents, in two successive annual installments, the last of which fell due 12th November, 1861.

Before GLOVER, J., at Charleston, June Term, 1868. The report of His Honor the presiding Judge is as follows: “ This action was brought on the joint and several bond of the defendants, executed on the 10th September, 1860, to the plaintiffs, as trustees of the Savings Building and Loan Association, which was incorporated after said bond was given. “ One of the plaintiffs died after the suit had been instituted.

BefoRe GLOVER, J., at Charleston, June Term, 1868. This was an action on a policy of insurance against fire, dated May 27, 1857, and issued by the defendant to the plaintiff, in Charleston, South Carolina, on property in that city. The defendant is a corporation, created under the laws of New York, and having its principal place of business in the city of New York, but having, in the years 1857 and 1858, an agency in Charleston, by which the policy was granted.

<p>C. conveyed, by deeds, certain bonds to D., in trust, to pay the income to C for life, for tbe maintenance and support of liimself and wife, and the support and education of his children — neither corpus nor income to be liable for his debts — and to hold the corpust after his death, upon certain limitations, for the benefit of his wife and children, with power in D. to receive payment of the bonds, and, from time to time, at the reguest of 0., to sell the corpus, and make investments 5 and with power in C. to discharge D., with his consent, and substitute another trustee in his place The bonds were collected by D., and invested in other securities; and, in 1863, C. executed an instrument, under seal, whereby, with D.’s consent, he discharged him from the trust, and substituted R. in his place j and, thereupon, D. accounted to R., and, leading him to believe that all the securities had been realized in Confederate money, transferred to him the corpus of the estate in that currency, talcing from him a receipt expressed to be “in full for principal of said trust in his (D.’s) hands:” Held, That the wife and children of C. could maintain a bill in equity against D., C. and R., to compel D. to transfer to R., as trustee, certain of the securities, which had not been realized when he accounted to R., in 1863, and which he had fraudulently retained for his own benefit, they being, at the time, of much greater value than their amount in Confederate money 5 or to account for their value.</p> <p>The interest of the wife and children of C. in the income was alone sufficient to entitle them to maintain the bill — semble.</p> <p>Cestuis que trust, whose interests are future and contingent, may, upon sufficient ground, maintain a bill against the trustee and tenant for life to have their interests secured.</p> <p>The powers reserved to himself by C. did not make him the sole and absolute owner of the property 5 nor did the power to sell and invest affect the rights of the parties further than this, that, upon a sale under the power, the trusts attached upon the proceeds, and then upon investments when made.</p> <p>A voluntary covenant to convey property in trust, will not be enforced in equity 5 but where the trust has been created by an actual transfer or conveyance, equity will protect the interests of the cestui que trust.</p> <p>'The wife and children of C.held not to be concluded by the instrument discharging D. from the trust, and substituting R. in his place, and the receipt in full given by R. to D. for the corpus of the trust estate.</p> <p>A deed, executed under a power reserved in a trust discharging the trustee, and appointing another in his place, is not, of itself, a release of the discharged trustee from liability to account.</p> <p>A receipt is never conclusive when fraud or mistake is alleged against it 5 and even a release given upon a fraudulent consideration is void.</p> <p>The evidence reviewed, and the answer held to be contradicted by two witnesses and corroborating circumstances.</p> <p>A trustee’s purchase from himself will be set aside at the mere option of his cestui que trust; and in no way can he advance his own interests at the expense of the latter.</p> <p>It was not a fraud on D., under the circumstances, to retain the Confederate money he paid, and then, after it had become worthless, file a bill against him to compel him to transfer the securities.</p> <p>The remedy held not to be barred by lapse of time.</p>

Before JOHNSON, Ch., at Williamsburg, February, 1868. The decree of His Honor the Chancellor is as follows: JOHNSON, Ch. In this case, it appears to the Court, from the pleadings, exhibits and testimony, that Mark C. Hall, the complainant, and Benjamin Joiner, one of the defendants, in January, 1867, made, or entered into, a verbal agreement that said Hall ivould furnish provisions to feed the employees, and money to pay the rent and work hands; that said Joiner, and…

Before JOHNSON, Get., at Newberry, April, 1868. This was a creditors’ bill for administration of the personal estate of James Kilgore, deceased. Simeon Fair and Peter Hair presented a claim against the estate, wdiich arose out of the following circumstances : They and James Kilgore were joint administrators of John W. Summers, deceased.

Befoke JOHNSON, Ch., at Newberry, September, 1867. The decree of His Honor the Chancellor is as follows: JOHNSON, Ch. Taplow Harris, one of the members of the mercantile firm of Swindler and Hams, died in 1844, intestate, leaving surviving him his widow, Sarah Harris, and twelve children as his heirs at law.

Before JOHNSON, Ch., at Lexington, June, 1867. The points made by the appeal in this case will be understood from the Circuit decree and grounds of appeal.

Before JOHNSON, Ch., at Newberry, September, 1867. The decree of His Honor the Chancellor is as follows : JOHNSON, Ch. Drayton Nance, the father of the complainants, died on the 13th day of September, 1856, leaving of force his last will and testament, of which Frederick Nance and John A. Barks-dale were appointed executors, and under authority of which they have nearly administered the whole estate.

Before LESESNE, Ch., at Richland, June, 1868. This was a petition for leave to file a bill of review, or bill in the nature of a bill of review.

Before JOHNSON, Ci-i., at Newberry, SepteMber, 1867. The decree of His Honor the Chancellor is as follows: Johnson, Ch. On the 7th day of August, 1880, Daniel T. Cure-ton executed his last will and testament, and died on the 16th day of July, 1862, leaving the same unrevoked.

<p>Action of trover commenced in December, 1865, on acause of action which arose between December 19,1860, and April 29, 1865. Action tried January, 1868, and verdict for plaintiff. Defendant appealed to Court Appeals, and appeal dismissed. Neither in Court below, nor in Court of Appeals, did defendant claim the benefit of Military Orders, Nos. 10 and 161, staying proceedings in sucli cases; but, in October, 1868, after said orders had been abrogated, he applied to have the judgment vacated, on the ground that, under the operation of those orders, it was void. Application refused.</p> <p>A Justice of the Supreme Court has no authority, at Chambers, to set aside a judgment of the Court of Common Pleas — senible.</p> <p>The Military Orders, known as Orders Nos. 10 and 164, were mere regulations of the procedure of the Courts — staying their actionm a certain class of cases— and did not operate to oust them of their jurisdiction.</p> <p>A judgment will not be vacated for a mere irregularity, which does not affect the justice of the case, and of which the party could have availed himself, bu.t did not do so until judgment was rendered against him.</p> <p>A judgment which could have, been avoided for irregularity under Military Orders, Nos. 10 and 164, will not be set aside after those orders have been abrogated.</p>

Before THOMAS, J., at Union, Atril Term, 1869. This ease was brought up by writ of error from the Circuit Court for the County of Union — the defendants below, Thomas C. Jeter and Mary Jeter, administrators of Fanny Tucker, deceased, being plaintiffs in error. The action was debt, and the declaration contained two counts.

Befobe ORE, J., at AndersoN, SpriNG Term, 1869. This was a writ of error to remove into this Court the record in a certain petition for a writ of prohibition, wherein Elizabeth Cooley and Jordan Green, and Mary, his wife, defendants in error, were petitioners, and Vincent Baldwin, plaintiff in error, and others, were respondents.

<p>Debt on sealed note for $600, dated November 30,1863, and payable, wüb interest, “in gold, six months after the present war with the United States is ended.” Pleas: jSTil débet; depreciation of consideration ; payment and clis- « count. At the trial, in April, 1869, evidence was introduced to show that the consideration of the note was a loan of $600 in notes of a Cotton Loan Association, incorporated under the Act of 18615 that such notes were of no value at the time of the trial, and that they were worth 60 per cent, more than Confederate money at the date of the note. The presiding Judge ruled that the case came within the proviso of See. 4 of the Ordinance of I860, and charged the jury 4i that they must reduce the amount of the note to the standard of Confederate money at its date.” Verdict for plaintiff for $200 : Held, That there was error in the charge to the jury, and case remanded, with instructions to issue a venire facias de novo.</p> <p>The intent of-the proviso was to make it competentto show, by evidence, that, in using the word “ dollars,” parties had reference to the existing currency at the date of the contract; and where that is shown, it is error to instruct the jury what verdict to find. They should be left free to had such verdict as, in their judgment, will “ effect substantial justice between the parties.55</p> <p>An express written contract to pay so many dollars “in gold” is not within the proviso, and can be discharged by payment only in gold coin, according to the terms of the contract.</p>

<p>D. purchased from W. a tract of land on credit, and gave bond, with «X., H. and F. as sureties therein, and a mortgage of the premises to secure the payment of the purchase money. 0. became insolvent, and J. and F. agreed ■with W. to pay the debt, and take from him an assignment of the mortgage as indemnity. F. paid one-half the debt and got possession of the mortgage and the land. J. being unable, with his own means, to pay the other half, made separate agreements, in writing, with ó. and S., by which he procured the necessary funds and paid it; the agreements being that, if J. shouLd fail to return the funds loaned him by C. and S., respectively, W., who knew of and assented to the arrangements, should assign to each of them a proportion of the mortgage lien, equal to the amount advanced by him. J. failed to return the funds, and became insolvent: JEZeld, That a bill in equity, hied by 0., and the administrators of S., who had since died, against 0., F., J., and the administrator of W., who had also died, setting forth the facts as herein stated, and praying the benefit of the mortgage lien, a sale of the mortgaged premises, &c., was not demurrable by 0., J., and the administrator of W., for multifariousness.</p> <p>Parties having an interest in common in the subject-matter of a suit in equity may be joined as plaintiffs, though each acquired his interest by a separate and distinct contract.</p> <p>Upon questions of multifariousness it is impossible to lay down any rule which will apply to all cases. There is more danger of doing injustice from a want than from a redundancy of parties. Every case must depend on its own circumstances, and the Court must exercise a sound discretion upon the subject.</p>

Before JOHNSON, Ch., at Chambers, November, 1868. This was an appeal by Jane Boozer, a defendant, against an order for a writ of attachment for contempt.- To the statement of the case contained in the opinion of the Court, it is only deemed necessary to add that the decree for sale was made April, 1868; that the sale was on the 5th October, 1868, at the price of $2,040; and that the Commissioner, in his report, stated that the purchaser, James Y. Harris, had complied with…

Before ORR, J., at Newberry, October, Extra Term, 1869. This case was brought up by writ of error from the Circuit Court for Newberry County. E. Súber, the defendant below, being the plaintiff in error. The action was assumpsit, and the declaration contained only the common counts in indebitatus assumpsit for goods and chattels sold and delivered, work and labor done, money paid, and money had and received.

Before CARROLL, Ch., at Anderson, June, 1868. The bill in this case was for an account by the defendant, Charles L. Gaillard, as guardian of the plaintiffs, and the only question considered and decided by the Court was, whether certain investments of the estates of his wards, made by the defendant, in the years 1859 and 1860, in bonds of the Greenville and Columbia Railroad Company, at eighty-five cents, or thereabouts, on the dollar, were legal.

Befoke CARROLL, Ch., at Abbeville, June, 1868. There were two Circuit Court decrees in this case, from which appeals were taken by the defendant, McBride.

Before CARPENTER, J., at Charleston, June TerM, 1869. This case was brought up by writ of error from the Circuit Court for Charleston County. Held: That the defendant was not justified. — Scribner vs. Beach, 4 Denio, 448.

Before THOMAS, J., at Union, August Term, 1869. Tlie bill in this case was filed on 10th April, 1867, by the plaintiffs, against the administrators of William G-.

<p>Before CARROLL, Ch., at Abbeville, Jure, 1868.</p> <p>This was a bill by James W. Williams, plaintiff, against Henry Beard, James M. Richardson, Patrick Heffernan, Joel Pinson, John W. Calhoun, Eliza A. Powers, Frances Sheppard and Elizabeth Day, defendants, to foreclose a mortgage of real estate given by the • defendant, Beard, to the plaintiff.</p> <p>In January, 1859, the plaintiff sold to Beard, at public auction, a tract of land, lying in Abbeville District, containing two thousand and fifty acres, more or less, at the price of $25,000, and, to secure the payment of the purchase money, took his bond, with four sureties, conditioned for the payment of that sum, in four equal annual installments, with interest, and a mortgage of the tract of land. The bond and mortgage were dated January 26, 1859. On that day, Beard conveyed to the defendant, Pinson, at the price of- -, one hundred and twenty-four and three-fourths acres of the mortgaged land. On the 17th March, 1859, he conveyed to the defendant, Richardson, at the price of $20,898.50, fourteen hundred and ninety-two and three-fourths acres of the same land. On the 8th April, 1859, he conveyed to the defendant, Calhoun, at the price of $860, forty-three acres of the same land. On the 19th August, 1862, he sold and conveyed to Patrick Iieffernan fifty-seven acrés of the mortgaged land, and on the 26th January, 1864, he sold and conveyed forty-seven and three-fourths acres of the mortgaged land to Frances Sheppard.</p> <p>The evidence also tended to show that other small parcels of the land had been sold off by Beard, leaving him the owner of about one hundred and two acres; that the defendant, Elizabeth Day, had purchased a parcel of it from Calhoun; that Beard contracted with J. W. Powers, deceased, to sell to him part of the land; that Powers took possession, under his agreement, and paid part of the ¡purchase money; and that, after his death, Beard conveyed the part he had agreed to sell to Powers to his widow, the defendant, Eliza A. Powers; and that Patrick Heffernan had conveyed the parcel he had purchased to two of his children.</p> <p>The plaintiff’s mortgage was recorded in the Register of Mesne Conveyance office, for Abbeville District, on the 27th June, 1866, and Beard’s deed of conveyance to Richardson was recorded in the same office, on the 20th November, 1866. The other deeds of conveyance had not been recorded</p> <p>The defence set up by the purchasers, respectively, was, that they were subsequent purchasers for valuable consideration without notice, and that, as the plaintiff’s mortgage'had not been recorded within sixty days, they were entitled to the protection given to such purchasers by the provision of the first Section of the Act of 1843, (11 Stat., 256.)</p> <p>The facts relative to the questions, whether the purchase moneys had been paid, and whether the purchasers- had notice, are stated in the Circuit decree, and in the judgment of this Court.</p> <p>The Circuit decree is as follows:</p> <p>CARROLL, Ch. Upon' general principles of pleading, the bill may be defended against the objection of multifariousness. It seeks to enforce a lien derived from a single instrument against lands, which, at its date, constituted but one estate in severalty. It is a common charge upon their several parcels of the mortgaged premises, which the bill sets up against the defendants, and they have all a common interest opposed to it —Story’s Eq. PL, §§ 533, 284 and 285. But the frame of the bill is vindicated by authority directly applicable to the case in hand. — Story’s Eq. PL, § 197 ; Miller vs. Kershaw, Bail. Eq., 481.</p> <p>Some of the questions discussed at the hearing are not' regarded as necessary to be here considered. Neither the plaintiff’s mortgage, nor the defendant’s (Richardson’s) conveyance from Beard, were recorded until after the lapse of more than seven years from their respective dates.</p> <p>But the mortgage was recorded some months earlier than the deed to Richardson. The deeds from Beard to the.other defendants have never been recorded. Each and all of the defendants (exclusive of Beard) contend that they are “subsequent purchasers for valuable consideration without notice,” as contemplated by the Act of 1843, and are entitled to its protection. It is replied, on the part of the plaintiffs, that the Acts of 1698 and 1785 have been construed so as to stand together, and that a like interpretation, as far as practicable, should be placed upon the Act of 1843, so that a consistent system of registration may result; that the only repugnance between the Act of 1813 and the two preceding Acts relates to the time within which mortgages are to be recorded ; that -the provision, in the Act of 1698, that the mortgage or conveyance first recorded shall have priority, is not repealed by the Act of 1843, and that the effect, therefore, pf the Act last mentioned is to render an unrecorded mortgage void only as against subsequent purchasers and mortgagees, whose deeds shall have been first recorded. Such does not seem to have been the construction placed upon the Act of 1843, in the recent case of McKnight vs. Gordon, 13 Rich. Eq., 222.</p> <p>It is true that the subject of controversy in that case was personal. property — a negro slave. But the provision, in the Act of 1698, giving precedence to the bill of sale, or mortgage of negroes first recorded, is, in substance, but a repetition of the provision which it makes as to conveyances and mortgages of land. So, also, in the case referred to, the judgment of the Court has reference only-to the legal consequences, under the Act of 1843, which result from the failure to record, in due time, a mortgage of personal property. Yet such consequences are precisely the same as follow the omission to record, within the prescribed time, a mortgage of real estate, and are expressed by that Act in identically the same terms. In determining, therefore, who, under the Act of 1843, are to be deemed subsequent purchasers for valuable consideration without notice, as against a prior mortgage of slaves, the Court has, also, adjudged who shall be considered such purchasers, as against a prior mortgage of lands.</p> <p>The plaintiff, McKnight, in the case cited, had never- recorded his mortgage. Eighteen months after its date, one of the slaves mortgaged was sold under execution against the mortgagor, and was purchased by the defendant, Gordon, to whom the Sheriff, on the same day, executed a bill of sale. For his defence, Gordon claimed to be a purchaser for a valuable consideration without notice, under the Act of 1843. “ The positive rule of law established by this statute,” says the Court, “precludes the mortgagee, who had omitted to put his mortgage oh record within the time limited, from interposing the estate which he acquired by it, in bar or derogation of the estate or claim for which one, who is within the terms of its protection, has paid. As against such an one, he is, by his own omission to record, estopped from asserting his title.” “The answer of the defendant,” continues the Court, “ denies notice of the mortgage, or of any claim rvhatever by the plaintiff, to the property therein mentioned, and affirms that he paid the purchase money in good faith, without notice of the plaintiff’s claim. No witness contradicts this denial of notice;” and the judgment of the Court is thus announced: “It is considered, upon the case made by the pleadings, that defendant is a purchaser for valuable consideration, without notice of the prior unrecorded mortgage. He fulfills, therefore, in all particulars, the terms of the statute.”</p> <p>The bill of sale which Gordon received from the Sheriff seems never to have been recorded. Yet this circumstance is not even alluded to in the opinion of the Court. Nor is the faintest intimation to be there found that the recording of Gordon’s bill of sale, prior to tlie recording of the mortgage, was deemed an essential prerequisite to his being admitted to the protection which the statute of 1843 affords to subsequent purchasers for valuable consideration without notice.</p> <p>On the contrary, in the absence of any registration whatever of his bill of sale for.the slave, he was, nevertheless, held to have “ fulfilled, in all particulars, the terms of the statute.”</p> <p>It is difficult to conceive wbat practical good could be accomplished by recording a conveyance, so far as prior incumbrances are concerned. The plain purpose of the Act of 1843 was to guard against loss and injury to subsequent creditors or purchasers, from their dealing with the mortgagor, under the delusion that he retained the absolute and unincumbered ownership of the- property mortgaged.</p> <p>Moreover, it is said that the object of recording is to give notice; but, if the party has actual notice, the purpose is as effectually answered as it can be by notice implied by recording. — Mm tin vs. Sale, Bail. Eq., 4. The several purchasers of the mortgaged lands seem to have passed immediately into possession of the parcels sold to them, respectively, by Beard. Where a party is in actual possession of land, the very fact of his possession is deemed sufficient notice to persons claiming as subsequent purchasers or creditors and surely notice more positive or explicit cannot be required in favor of a prior incumbrancer. — Massey vs. Melhoain, 2 Hill Ch., 421. But it is unnecessary to refer to the evidence of implied notice to the plaintiff. There is positive and dir.ect proof of actual' notice, for “ Beard testifies that the plaintiff, Williams, knew of the sales of the land that witness made to the defendants, purchasers from him.” It results that the defendants, claiming as subsequent purchasers, for valuable consideration without notice, under the Act of 1843, are not precluded from that defence because of their having omitted to record their respective conveyances prior to the recording of the plaintiff’s mortgage.</p> <p>The defendants, Pinson, Calhoun and Mrs. Sheppard, have paid the entire purchase money of the parcels of land sold to them, respectively, by Beard, and the fact of their doing so is not understood to be disputed. For the land purchased by Richardson he made payment, in part, to Beard, by placing at his disposal, at a stipulated price, certain other lands, which, by Beard’s direction, were afterwards sol'd and conveyed to other purchasers — Beard receiving the proceeds. The residue of the purchase money was secured by Richardson executing and delivering to Beard his promissory notes for the same. These notes, amounting, in the aggregate of their principal sums, to some $11,000, or more, were subsequently paid, partly in money, and, in part, by transferring to Beard notes against other persons. One of the notes so transferred is the “note of -Abney, for about $1,400, the payment of which Richardson guaranteed and that note yet remains unpaid, in the possession of Beard. It is objected that, as, by such guaranty, a liability still rests upon Richardson for the amount secured by Abney’s note, his debt to Beard for the purchase money of the land must be regarded, to that extent, at least, as still unpaid. Both Beard and Richardson concur in- stating explicitly that the notes of Abney and others transferred, and the money paid to Beard, were accepted by him, in full satisfaction of Richardson’s notes for the purchase money. Those notes were, therefore, surrendered to Richardson. The parties to that transaction did not design a security merely for Richardson’s debt to Beard, but its satisfaction and discharge. Richardson’s liability, under his guaranty, is, in no just sense, a continuation of his original _liability under his contract with Beard. That has been extinguished; another debtor has taken his place ; and the secondary and contingent liability he had incurred is not for the payment of his original debt to Beard, but for the payment of another debt, arising under another and distinct contract, to which, originally, Beard was an entire stranger. Richardson’s debt to Beard, for the purchase money of the land, is considered, therefore, to be fully satisfied and paid.</p> <p>It is urged by the plaintiff that, upon the case as presented, the defendants, purchasers from Beard, should be held to have had notice of the mortgage before their respective contracts with him had been fully completed by execution of the conveyance and payment of the purchase money.. There was no written or printed advertisement of the terms of the sale when Beard became the purchaser of the land. It was sold by the plaintiff at auction, to the highest bidder, and in the presence of some twenty-five or thirty persons. Immediately before the land was exposed to sale, it was announced by the auctioneer, as among the conditions of the sale, that the purchase money should be secured by bond, with adequate personal securities, and a mortgage of the premises. Both bond and mortgage were executed a few days afterwards, and, as it is to be inferred, at the house of the defendant, Beard. There was a report or rumor in the neighborhood that such a mortgage was in existence.</p> <p>Several witnesses testified that they had heard of it, and some of them frequently, while others deposed that it had never reached them until after the defendants, who had purchased from Beard, had received the deeds and had paid for their respective parcels of the land. The proof of notice, as against the defendants, J. M. Richardson and Mrs. Sheppard, had this extent, no more.</p> <p>In respect of the defendant, Calhoun, the evidence is the same, with the addition that he was present at Williams’ sale of the land to Beard. Calhoun’s presence at the sale appears only from his admission of the fact in his answer, and it is there coupled with the averment that he heard nothing of a mortgage of the land upon that occasion. Against the defendant, Pinson, the evidence of notice is much stronger. He, likewise, was present at the sale, though he deposes that he did not arrive upon the ground until near the close of the biddings. When the bond and mortgage to Williams was executed by Beard, at the house of the latter, Pinson was again present, and again failed, as he deposes, tQ hear any mention of the mortgage whatever.</p> <p>The friend to whom he applied to become his surety for the purchase money of the land sold to him by Beard, having asked him if there was.-not a mortgage upon the premises, Pinson made the same inquiry of Beard, and received for answer that, if he would pay the purchase money, he would get a good title.</p> <p>As against the defendants, J. M. Richardson and Mrs. Sheppard, the proof of notice is clearly insufficient. Mere reports in circulation, proceeding from strangers or persons not interested in the property, will not be deemed sufficient evidence. “ Constructive notice,” it is said, “cannot be implied from rumor, however general.” — Dopson vs. Harley, 6 Rich. Eq., (note,) 177; 2 Sug. on Vend., 1040. The additional evidence against the defendant, Calhoun, consists in the mere fact that he was present at the sale of the land to Beard; without more, though the auctioneer may have read aloud the terms of sale from a written paper in his hand, yet, to the bystander, this amounted to no more than a mere verbal announcement. It is by no means improbable that some of the persons present — especially some of those who did not mean to bid — failed to note and apprehend all the terms of sale thus declared. Their failure to do so,might well have been occasioned by a momentary interruption, or diversion of their attention from the auctioneer. while announcing the conditions of the sale. A witness, intelligent, respectable, and entirely disinterested, deposes that, though present at the sale, he heard nothing of the mortgage until after the commencement of this suit. The evidence adduced is not regarded as sufficient to affect the defendant, Calhoun, with notice of the mortgage.</p> <p>With regard to the defendant, Pinson, there are certainly strong grounds for suspecting that he was aware of the existence of the mortgage, before completing the purchase of the land by payment of the purchase money. But is such knowledge, on his part, established satisfactorily by the proof?</p> <p>At the outset, it must be borne in mind that the burden of proof is upon the plaintiff. Beard testifies that, in none of his sales, did he mention the existence of the mortgage — that he thought his bond ample security for the purchase money, and wished to make as good sales as possible. This may serve to explain how it was that Pinson, though at the house of. Beard when the mortgage was executed, was kept in ignorance of its existence. The several purchasers from Beard could not have relied upon the sufficiency of the sureties upon his bond to Williams as a protection against the mortgage, for, as between the sureties and the mortgage, the latter undoubtedly was the primary security for the debt. Yet those purchasers seem to have paid to Beard a fair and full price for the lands he sold to them. “It seems to me,” says Chancellor Harper, “that the consideration paid is a most material fact in determining the question of notice. If the compensation were very inadequate, I think it would raise a fair presumption of notice. If the consideration be a full „ one, it goes as far to repel it. Indeed, it is not credible that a man should pay a full consideration for a title which he knew to be doubtful or incumbered.” — Thayer vs. Davidson, Bail. Eq., 424. It is said that Beard’s evasive reply, when asked if there was not a mortgage upon the land, was enough to put Pin-son upon further inquiry, and was, therefore, equivalent to notice. In his testimony, Pinson states that, at that time, he had never heard of a mortgage upon the land; “ did not know such a paper was out; never heard of it till after the summer in 1865; Boaz-man did not say there was a mortgage, but asked witness if there was one.” Under such circumstances, Pinson might, perhaps, in good faith, have understood Beard as saying, in effect, that there was no mortgage, since a “goodtitle” could not be made unless the land was conveyed free from all lien and incumbrance. Or Pinson, perhaps, might have understood Beard’s reply as merely repelling the inquiry; because it implied a want of proper confidence in himself. It may, at least, be doubted whether Pinson’s omission to make further inquiry, under the circumstances, amounted to gross negligence on his part; and a less degree of ineautiousness appears to be insufficient to affect a purchaser with notice. In Jones vs. Smith, 1 Phill, 257, Lord Lyndhurst remarks: “I do not consider this a case of gross negligence, and I am of opinion that the party, having acted bona fide, and- having only omitted that caution which a prudent, wary and cautious person might, and probably would, have adopted, is not to be fixed with notice of this instrument.” Such seems to be the rule in ordinary cases, where notice is alleged to rebut an equity. But the Court distinguishes between notice for such purpose, and notice to supply the defect of registration. “It is not necessary,” says Chancellor Harper, “ to refer to the numerous authorities cited in argument, which fully establish what was contended for: that, to supply the want of registration, the notice must be full, explicit, and clearly proved.” — Gity Council vs. Page, Speer Eq., 212. The evidence of notice to Pinson does not seem to come up to this standard, and it is considered, with hesitancy, however, that he, also, must be regarded as being, within the contemplation of the Act of 1843, a purchaser, for a valuable consideration, without notice of the plaintiff’s mortgage.</p> <p>As the defence set up by the defendant, J. M. Richardson, is sustained, it. operates, of course, for the protection of such of his co-defendants as were purchasers from him.</p> <p>Since Beard’s conveyances to the defendant, Patrick Heffernan, of certain parcels of the mortgaged premises, the latter has executed deeds conveying the same to his children, Elizabeth Day and James L. Heffernan, respectively, neither of whom is a party in this cause. The portion of the mortgaged land now in the occupancy of the defendant, Eliza A. Powers, her husband, John A. Powers, purchased, in his lifetime, from Beard, and, having paid a portion of the purchase money, entered into possession, receiving, however, no deed of conveyance. After the death of J. A. Powers, Beard testifies that “ he renewed the contract of sale with the defendant, Eliza A. Powers, his widow,” and received from her a further portion of the purchase money. Al-1 persons having an interest in the equity of redemption should be made parties to a bill for foreclosure. “If the mortgagor has assigned the equity in the different estates mortgaged to several persons, they must all be brought before the Court as parties, if foreclosure is sought of all the estates.” “ If the mortgagor has conveyed the mortgaged property in trust, the trustees, as well as the beneficiaries, are necessary parties to such a suit.” — Story’s Eq. PL, § 197. One who has entered into a valid contract for the purchase of land is treated in this Court as the equitable owner of'the land. He may devise it, as land, before the conveyance is made, and it passes, by descent, to his heirs as land. — 1 Story’s Eq., § 790; Landrum vs. Hatcher, 11 Rich. Eq., 57, 58. _ .</p> <p>Obviously, the contract of Mrs. Powers with Beard must be considered as being for the common benefit of herself and her children, as statutory heirs of her deceased husband, and her possession of the land must be deemed to be theirs also, as her co-tenants. As to the parcels of the mortgaged premises which Beard conveyed to Patrick Heffernan, and sold to John A. Powers in his lifetime, the suit cannot be entertained, for want of necessary parties; and the children of John A. Powers, and the alienees of Patrick Heffernan, are regarded as such parties. The balance of the mortgage debt still due and unpaid remains yet to be ascertained, and a report from the Commissioner upon that subject will be necessary.</p> <p>It is ordered and decreed, that, as to the defendants, James M. Richardson, Elizabeth Day, John W. Calhoun, Frances Sheppard and Joel W. Pinson, the bill be dismissed ; and that the costs of these defendants be paid by the plaintiff, and be repaid to him by the defendant, Henry Beard.</p> <p>It is further ordered, that the plaintiff have leave to amend his .bill by making additional parties thereto, as he may be advised.</p> <p>And it is further ordered, that the Commissioner do inquire and report what sum remains due and unpaid upon the mortgage debt herein above referred to.</p> <p>The complainant appealed, and now moved this Court to reverse the decree, in every particular in which its ruling is against the complainant, on the grounds:</p> <p>1. Because the mortgagor, having sold the larger part of the land mortgaged, and parted with possession thereof, the Act of 1791, which changes the rule of the common law, vesting the fee in the mortgagee, does not apply; and as to all the lands in the possession of the defendants, other than Henry Beard, on forfeiture of the mortgage, by non-payment of the money secured by it, the legal title and the right of possession were united in the complainant, against which title the pleas of the respective defendants, James M. Richardson, Elizabeth Day, John W. Calhoun, Frances Sheppard, and Joel W. Pinson, of “subsequent purchasers for- valuable consideration without notice,” cannot prevail.</p> <p>2. Because the plea of purchaser for valuable consideration without notice, was not sustained by proof of payment of the purchase money, and should have been overruled.</p> <p>3. Because, the proof being clear and uncontradicted that James M. Richardson had transferred to Henry Beard, in part payment of the purchase money, a note on -Abney, for about $1,400, which was guaranteed by Richardson, and that it is still in the hands of Beard and unpaid, His Honor erred in sustaining his plea.</p> <p>4. Because His Honor erred in ruling that á subsequent conveyance of land, recorded out of time, was good and effectual against a previous mortgage of the same land, also recorded out of time, but recorded before the subsequent conveyance.</p> <p>5. Because His Honor erred in ruling that a subsequent conveyance, not recorded, was good against a previous mortgage, recorded out of time.</p> <p>6. Because the Acts of the General Assembly regulating the registry of papers, to wit: the Acts of 1698, 1785 and 1843, are parts, making,.together, a system of registration, and should be construed together; the provisions of each, wherein they are not repealed, should stand, and have full force and effect; and that the provisions of the Act of 1698, “that that sale, conveyance, or mortgage of lands and tenements, except original grants, which shall be first recorded,” shall be the first, is still of force, and His Honor erred in ruling the contrary.</p> <p>7. Because His Honor erred in ruling, in opposition to the great weight of the testimony, that the defendants did not have actual notice of the complainant’s mortgage before the payment of the purchase money. This ground of appeal applies to all of the terre tenants of Beard, and especially to Joel W. Pinson.</p> <p>8. Because the defendant, Eliza A. Powers, being included in the bill as defendant, merely as a terre tenant of Hénry Beard, without seeking to charge the estate of her late husband, or for relief against the same, she, in her possession, should be regarded as the representative of her children who live wich her; and His Honor the presiding Judge erred in ruling that her children are necessary parties to the proceeding.</p> <p>9. Because the decree, in. other respects, is contrary to law and the equity of the case.</p>

Before THOMAS, J., at Unioh, August Term, 1869. Held: in the case of the United States vs. 1500 bales of cotton, which had been purchased and used in furtherance of the rebellion, that the impurity was washed away by the proclamation of December 25, 1868. But a distinction may be drawn between executed and executory contracts.

Before CARROLL, Ch., at York, JuNE, 1867. Appeal from the Circuit decree of tlie late Court of Equity. ' The plaintiff is the administrator of Daniel W. Crosby, who died intestate in the latter part of the year 1863, and the defendant was the guardian of the intestate. The bill was for account. Allen Crosby, father of the intestate, died in January, 1847, leaving a small estate, real and personal, and four children.

Before THOMAS, J., at UNION, August Term, 1869. By a decree of the Court of Equity for Union District, (now County,) made by Chancellor Dunkin, July 6,1853, the defendant, W. C. Dunn, was appointed trustee of the plaintiff, Mary Dunn, then and now the wife of Henry G. Dunn.

Before BOOZER, J., at Richland, August TerM, 1869. The case was first heard before His Honor Chancellor Johnson, in June, 1867.

Befoeb CABBOLD, Ch., at Charleston Maroh, 1868. Under proceedings in tbe Court of Equity for Charleston District, one of the Masters, by deed, dated 29th May, 1860, assigned to the defendant, Benjamin Mordecai, five bonds, secured by mortgages of real estate, amounting, in the aggregate, to $8,000, and upwards, and about $4,000 in cash, to be held by him “in trust, to invest the cash aforesaid, and the proceeds of the bonds aforesaid, as soon as received, in such manner as…

BefoRE LESESNE, Cel, at Charleston, May, 1868. Bernard Fitzsimons, late of Charleston, the testator in the cause, died December 4, 1859, leaving a widow, the defendant, Pamela, an infant daughter, Eugenia Clara, born in March, 1857, and a sister, the plaintiff, Mary Ann. By his will, he devised and bequeathed his whole estate, real and personal, to his sister and daughter, as tenants in common, and appointed his sister guardian of the person and estate of his daughter.

Before CARPENTER, J., at Charleston, April Term, 18(59. The facts of the case are stated ia the decree of His Honor the Circuit Judge, which is as follows: Carpenter, J. This was a bill, filed by Baum, for partition of certain premises, situated in the city of Charleston, in one undivided moiety, of which Stern was tenant in common. From the pleadings and evidence, it appears that, in August, 1866, the premises were jointly owned by Philip Epstin and Myer Stern.

Befoee CARROLL, Ch., at Charleston Februaey, 1868. Tbe object of the bill'in this ease was to set aside a release given on the 6th February, 1866, by the plaintiff, Womack, to the defendant, Austin, and to compel the defendants to account for the estate of the plaintiff’s father, which came to the hands of his executors.

Before CARPENTER, J., at Charleston, June Term, 1869. This was a writ of error to remove the record and proceedings, in the case stated, from the Circuit into the Supreme Court.

Before CARROLL, Oh., at Charleston March, 1868. The decree of His Honor the Chancellor is as follows: Carroll, Ch. At the death of William Rivers, the elder, in 1796, his daughter, Frances Susannah, became the owner, absolutely and in fee, of the land in controversy. She was married to Jacinth Laval, Jr., and, as it may be inferred, towards the close of the year 1804.

Before CARROLL, Ch., at Darlington, February, 1867. Appeal by the plaintiffs from the Circuit decree.

Before MOSES, C. J., at Chambers, Septejiber, 1869. This case was brought up, by writ of error, from the Circuit Court for Charleston County, where the original papers remain of record.

Before the Chief Justioe, at Chambers, Sumter, September, 1869. These were writs of error to the Circuit Court for the County of Charleston. Held: nor whether it is to be considered as referring alone to officers whose “election or appointment” is provided for under the new Constitution, nor what effect is to be given to the words “election or appointment and qualification according to law,” therein used.