Volume 14 — South Carolina Equity Reports

<p>The rule of court, in chancery, requires that in a petition for a rehearing, the error complained of should be certified by two counsel.</p> <p>A deposite is generally directed to be made in such cases, on account of costs.</p>

Before HARPER, Chancellor, at York., June Term, 1836. This case came up on a motion to reverse the chancellor’s decree, dismissing the complainants bill. The decree of his honor, which presents all the facts of the case, is as follows: “ In 1826, the plaintiffs brought an action of trover at law against Andrew Hill, for the conversion of sundry slaves, and after various verdicts and new trials, a verdict was finally obtained on the last day of March term, 1831, for #3050.

<p>When the persons intended to take under a grant or devise are described as a class, without designating the proportions in which they are to take, all are equally entitled, who can bring themselves within the description.</p> <p>When heirs take by purchase, they do not take as heirs, but as a class of persons, to whom, by that name, the testator has selected to devise his property, and as they take in their own right, the distribution is to be made per capita, and not per stirpes.</p>

Before DUNKIN, Chancellor, at Lancaster, July Term, 1838. This case came up on an appeal from the' decree of the chancellor. The decree is as follows; “On the 13th November, 1820, William Aikin, deceased, obtained a judgment in Kershaw District, against Col. Thomas. Ballard, sen’r., for $508 74, and a judgment against David G. Ballard, and Thos. Ballard, sen’r. for $1421 19. In both cases a fi. fa. was lodged, 5th December, 1820.

<p>After a decree establishing the rights of the parties in partition, the duty of the Court in making distribution of the proceeds of the lands sold, is rather ministerial than judicial; and where the authority of one to receive the portion of some of the parties to the partition had been verified by the commissioner, it was held, the execution of the decree was not to be arrested on the application of another person, upon the suggestion that he was entitled to the money.</p>

<p>By law an administrator is bound to make equal distribution and to deliver to each distributee his equal share of the estate.</p> <p>Complainant, as one of the distributees of his father’s estate, complained of the inequality of a division of that estate, made in 1817, by commissioners, under a commission from the court of ordinary. It appeared that under the first section of the division made of the negroes among the distribu-tees, complainant received an equal share with the other distributees, but that in subdividing' a deceased child’s share of the same estate, the share of complainant fell short, and that he was to receive the sum of $210 41, from the other co-distributees. Held, that neither the administrator of the father, nor his securities, were liable to the complainant for the amount.</p>

Before DUNKIN, Chancellor, at Spartanburg, June, 1838. The decree of his honor the chancellor, is as follows: “ The object of this bill is to enforce the specific performance of a parol agreement in relation to lands.

<p>The administrator de bonis non, stands in the place of the first administrator, and is bound wherever the latter would be bound, and concluded, by whatever would conclude the latter.</p> <p>The administrator in general represents all the creditors and distributees, and they cannot be heard but through him, and are bound by his acts.</p> <p>In the case of a fraudulent collusion, on the part of the administrator with others, to misapply the assets of the estate, these may be followed by the creditors and distributees themselves, but not by the successors of the administrator in the administration.</p> <p>In such a case, however, it is necessary that the administrator, or he being dead, his personal representative should be a party to the suit, as being liable in the first instance.</p>

Before DUNKIN, Chancellor, at York, June Term, 1838. On the 2d of April, 1832, the plaintiffs filed their bill, styling themselves grand-children of the late Eleanor J. Grier, of York district, who had died intestate, against James M. Love, hér administrator, and against the other defendants, who are admitted to be grand nephews and grand nieces of said intestate.

Before HARPER, Chancellor, at Laurens, June Term, 1838. This case came up on an appeal from the decree of his honor, Chancellor Harper.

Before JOHNSON, Chancellor, at Kershaw, June Term, 1838. This case came up on a motion to reverse or modify the decree of the chancellor.

<p>An application to remove trust property out of the State, will be refused, unless the court is well satisfied that a refusal of leave to do so, would materially injure the interests of the cestuy que trust.</p> <p>Where the expediency or necessity of the removal, is made clearly to appear, permission will be granted only, on such terms as the nature of the case, with a view to the security of the parties interested, may require.</p>

Before HARPER, Chancellor, at Charleston, January Term, 1838. This case came up on an appeal from the decree of his honor, Chancellor Harper, as well on the part of the complainants as the defendants. The decree is as follows: “ The complainants are creditors of John Aitken, formerly keeper of a coffee house in Charleston.

<p>Bill for an injunction — complainants alleged “ that there is a window on the west side of their house, which has been used as an ancient light for more than thirty years, and that there is attached to the said window, on the outside thereof, a hanging shutter, which has been used for closing the same, and that the erection of the defendant’s building, according to his proposed plan, will obstruct the light and the opening and closing of the said shutter, and will prevent the use and enjoyment thereof.” Held, not to be such a material injury to the comfort of the existence of those who occupy the house, as to demand the intervention of this court. Bill dismissed.</p>

Before DTJNKIN, Chancellor, at Beaufort, March Term, 1838. The bill states, that Harriet Fripp was the widow of William P. Fripp, and that some time in the year 1828, Isabel Fripp, the sister of the said William P. Fripp, being seized and possessed of a considerable estate, as well real as personal, departed this life unmarried and intestate: leaving her two brothers, William P. Fripp, the former husband of complainant, Harriet and Edgar Fripp, the defendant in this suit,…

<p>Complainant sought by her bill, to set up and enforce a mortgage, which had been assigned to her by the mortgagee, one Givens, against the defendant a subsequent purchaser of the property in possession. It appeared that complainant was entitled, as a legatee, to a share of the estate of one George Stevens, of which Givens was the executor, and that the mortgage (to which a renunciation of the complainant’s right of dower in the premises was annexed) was executed by the complainant’s husband for the sum of $1,400 advanced to him by the executor, on account of his wife’s legacy, and that it was intended to -protect the executor from any liability if it should not be recognized as a valid payment on that account. By subsequent proceedings in a cause in the court of equity to which, among others, the present complainant and Givens, were parties, the advancement of this money to Rickard was adjudged to be a payment of the legacy to Mrs. Rickard. Held, that the mortgage was without foundation or support, and that it could not be set up or enforced either in the hands of the mortgagee Givens, nor in those of the complainant to whom it had been assigned.</p> <p>A renunciation of dower is not, it seems, so much a conveyance as it is a bar of the wife’s claim, to attend the conveyance of the husband; to endure while that endures, and cease to operate when that expires. So where mortgaged lands are sold under a mortgage, whereupon dower has been released, the purchaser takes not only the fee, but the dower also; but where a mortgagees satisfied by payment of the debt, the dower reverts to the wife eo instanii: So if a mortgage ceases to operate or never begins to operate, the dower remains with the wife or returns to her (as the case may be) without the necessity of a reconveyance to her.</p> <p>The right to dower accrues upon the death of the husband, but the course of our decisions has been to date the running of the statute of limitations not from the accrual of the right, but from the accrual of the right of action for its assertion. So that the statute does not begin to run, until there is a possession in some one adverse to the claimant of dower.</p> <p>A claimant in this court who establishes her right to dower, against a purchaser in possession, is also entitled to an account for a third of the rents and profits of the lands for the time he has been in possession.</p>

<p>According to the rule laid down in the case of Sims v. Sanders, Harp. R. 374, it would seem that where the plaintiff’s evidence conclusively establishes a title by gift no after declarations of the donor, can be offered in evidence by the other party to qualify or impeach the title. By this rule the competency of the after declarations Of the donor, is made to depend upon the degree of clearness and weight of the evidence in favor oí the gift. The doctrine laid down in that case, questioned, whether as applied in a court of law or a court of equity, and the competency of such declarations said to depend not on the weight of the plaintiff’s evidence, as more or less conclusive, in favor of the gift, but upon their relevancy to the issue before the court.</p> <p>Where the party seeking to establish a gift of slaves, introduced, and among other proofs, relied upon the admissions of the donor, at and about the time of the supposed gift, that he had given the property claimed, the court rejected the after declarations of the donor in opposition to, or denial of the gift, as irrelevant.</p> <p>Where a party came into the possession of certain slaves belonging to an estate of which his wife was one of the distributees, and her infant child, by a former husband, a co-distributee, the court regarded him as holding for the benefit of himself and the co-distributee, and held that though his possession might be considered adverse to the right of the administrator of the estate, and bar him of his action under the statute of limitations, it could not impair the right of the co-distributee to claim a partition of the estate and an account of the hire and income of the property while in his possession.</p> <p>Where the wife, before marriage, was a joint tenant of slaves which went into the possession of her co-tenant in her lifetime. Held, that this was such a possession by her as that the marital rights of her husband would attach. (S. P. Burgess v. Heape, 1 Hill Ch. 404.) '</p> <p>In such a case therefore, in a suit for partition and account by a co-distri-butee with the wife, brought against the husband after the death of the wife, an administrator of the wife is not a necessary party to the suit.</p>

Before JOHNSTON, Chancellor, at Beaufort, January T., 1838. This case came up on an appeal from the decree of Chancellor Johnston. Held: forasmuch as it was not required'by the statute, a deed would be good without such attestation. West v. Randall, 3 Mason, 181. We think it equally certain that the same decision would have been made, if signing or sealing had been omitted.

<p>According to the case of Copis'v. Middleton, 1 Turn. & R. , R. 224 it was held that a surety to several joint obligations who had paid them off some before and some after the death of the principal, was only entitled to come on the estate of the principal as a simple contract creditor. — . The same principle is laid down in the case of Jones v. Davids, 4 Russ, 277. These cases go upon the ground, that the bonds, were extinguished at law by the payment, and that at law the surety’s demand constituted only a simple contract debt.</p> <p>But the case is different where the principal debtor dies, leaving the debt unpaid, and the surety calls, in equity, upon the administrator of the principal to discharge the obligation.</p> <p>A surety may in equity .compel the principal to relieve him by paying off the debt, and is entitled, it seems, to the benefit of any security which the creditor may have taken from the principal debtor.</p> <p>A surety therefore in a joint obligation upon the death of the principal, insolvent, leaving the debt unpaid, is entitled to call upon the administrator in equity to apply the assets in his hands, to the discharge of the obligation as a specialty debt, in preference to' the claims of the simple contract creditors.</p> <p>Where it is proved that the parties to a bond intended to execute a joint and several obligation but by mistake of the person who drew it, it was made joint only, equity will, it seems, relieve against the mistake, and put the parties in the same situation as. if it had been made joint and several.</p> <p>The cases on this subject examined. They seem to establish the principle that if a joint obligation be created merely by the bond or covenant, where there was no previous liability, in that case no relief will be afforded against the estate of the deceased obligor in the event of the insolvency of the survivor, but if there was an antecedent debt to which both parties were liable (as in the case of partners) there the court infers without direct proof that the instrument was made joint by mistake, and relieves accordingly by setting it up as 'a joint and several bond.</p> <p>On a still stronger equity it would seem that where there was an antecedent debt to which the deceased obligor was solely liable, would the court set it .up as his several debt in favor of the obligee, where the surviving obligor proves insolvent.</p> <p>Where a bond is made joint instead of joint and several by mistake, the appropriate remedy in equity would be to have the instrument reformed, and the party compelled to give such a bond as was intended to be given, this would give the obligee a priority at law, which equity following the law, would recognize. Equity, however, taking' jurisdiction gives complete relief, and will direct the payment of the money as if the bond had been actually made joint and several instead of joint only.</p>

Before JOHNSTON, Chancellor, at Sumter, Jan. Term, 1839. At the term of the court of equity, for Sumter district, in February, 1836, the commissioner made a report, “ in pursuance of the decree of Chancellor Johnston, directing the commissioner to inquire and report the terms and trustees for the settlement of the legacies and shares of Mrs.- Warren and Mrs. Hunter, respectively ; with the form of an order to be made by the court respecting the same ; ” in which he proposed…

<p>Under an order in a cause requiring the creditors of an estate to come in and establish their demands before the commissioner, several creditors, some of whom were represented by one solicitor, and the rest by another, came in and proved tjieir demands. To the commissioner’s report on these demands general exceptions were filed upon grounds, which were common to all the creditors. Held, 1. That under the fee-bill of 1827, the demand of each creditor was to be considered a separate and independent suit, and that the solicitor was entitled to the fee of $5, allowed by the act, for attendance at the,reference upon each demand, for every day’s necessary attendance. 2. That the solicitor could only charge, under the act, for one set of exceptions, the grounds of exception, being common to all the demands.</p> <p>Where in such a case different and independent exceptions are filed at .the instance of different parties, the solicitor would be equally entitled to tax his costs on each, as for his attendance on the reference; so too, if the creditors are represented by different solicitors, each would be entitled to his costs, if he performed the services indicated by the acf, as each creditor has the right to be heard by counsel of his own selection.</p>

<p>The principle that a debtor has the right to give a preference among his creditors, is too well settled in this State, to be now questioned.</p> <p>In a written assignment of this character any provision which secures an undue advantage to the debtor or assignor, has been held to vitiate the instrument so far as the rights of other creditors were hindered and delayed. The rule applies at least with equal force to the case of a parol assignment, or transfer, for the purpose of securing a preference.</p> <p>In the case of Smith v. Henry, 2 Bail., 118 ; 1 Hill, 16, the court only determined that on a sale to pay a pre-existing debt, the continuance of the vendor in possession, authorised the legal presumption of a secret agreement or stipulation for this undue advantage, not to be rebutted by evidence, and that the sale was fraudulent per se.</p> <p>The case of Smith & Henry does not proceed on the ground that the possession of' the vendor after a sale of chattels, is per se fraudulent. Such a principle it is believed could not, at this day, be maintained. If the possession of the vendor be consistent with the character of the transaction, or if the sale be not to secure & pre-existing debt, but in consideration of a price actually paid, or as in Briggs & Jones v. Blake & wife, 2 Hill, 629, where the vendor was to pay hire, in all these and' other instances of the like character, it has been held on sound principles that the possession of the vendor after the sale did not invalidate the transfer.</p> <p>But where a debtor sells his property, to one of several creditors in satisfaction of his debt, the creditor becomes the owner of the property, and the debt is gone.' If, instead of enjoying that which is his own, the creditor permit the debtor to have the use of the property, without hire or reward, this is inconsistent with the ordinary conduct of men having a moderate regard to their'own interests, it secures an advantage to the debtor to which he is not entitled, by giving him an interest in the property, which cannot be rendered available to his other creditors in satisfaction of their demands. It creates a presumption of unfair dealing; that the preference which had been given was the price of this undue advantage.</p> <p>It may well be presumed that property which the vendor continued to enjoy and of which for all substantial purposes, the vendee was only to be the nominal owner, was not sold at its full value ; but (as is said in Smith v. Henry) the conditions of such sales are usually known only to the parties, and are incapable of proof. The law supplies the defect, infers from the circumstances the existence of the corrupt agreement, and attaches to the transaction the character and penalty of fraud.</p> <p>But the reasons upon which, in the case of an absolute sale of property to pay a pre-existing debt, the subsequent possession of the vendor, is held to be evidence of fraud in the transfer, per se, do not apply to the case of a mortgage, given to secure the payment of a 'pre-existing debt, and the possession of the mortgagor after condition broken,;is no evidence of fraud per se in the mortgage.</p> <p>The distinction between the ordinary mortgages of chattels in England, and a mortgage of slaves in this State pointed out and illustrated.</p>

<p>The act of 1823, p. 35, provides “ that no marriage settlement shall he valid until recorded in the office of the register of mesne conveyance in the district where the parties reside ; provided that the parties shall have three months to record the same, and if not recorded within three months the same shall be null and void.” Held, by a majority of the court, not to apply to a mere executory agreement between husband and wife, executed before marriage, in which there were mutual releases to each other of all right which either might acquire to the estate of the other; (Johnson, Ch., of a contrary opinion, holding that the act of 1823 embraces all contracts founded on the consideration of marriage, whether ante or post nuptial, by which the relative rights of the husband and wife in the property of each other, incident to the marriage, is changed or altered.)</p> <p>The term “ marriage settlement,” is never applied, it seems, to a mere execu-tory agreement, by which the title to property is not changed, but is always understood to mean the actual conveyance or executed contract by which not only the property is changed and the title vested, but by which the property to some extent is tied up and rendered inalienable.</p> <p>The question whether the recording of a marriage settlement under and according to the act of 1823, is necessary to give it validity as between the parties discussed ; in the opinion of Johnson, Ch., held indispensable, and said to. have been so decided in the case of Austin v. Mullen, some years since, (not reported.)</p> <p>It is a well settled doctrine of the court of chancery, that if real or personal estate be settled on a married woman, without the intervention of trustees, her interests will notwithstanding be protected.by the conversion of the husband into a trustee.</p> <p>Where a marriage contract was executed between husband and wife previous to the marriage, in which the husband stipulated that the wife'should enjoy all the property which she then had or might acquire to her separate use, and released his right to the same. Held, that no trustee being appointed by the deed, the husband was.to be considered as a trustee for the wife, and that as such he was entitled to the possession of the marriage contract, and was bound in good faith to have had it recorded, and that he should not be permitted to set up a claim to the property of the wife, founded upon his omission to record it. (Per Johnson, Ch.)</p> <p>By the terms of a marriage contract entered into between husband and wife before marriage, the husband convenanted that his intended wife “ should at all times thereafter have, hold, use, occupy, possess, and enjoy, in her own right, and to her sole and proper use and behoof all the estate, real and personal, of what kind soever, of which she might he seized and possessed at the solemnization of the intended marriage without any let, or hindrance, claim, title, or demand whatsoever, from the said husband,” Held, not to operate as a relinquishment on the part of the husband of all interest in the property of the wife upon her death, as well as during coverture, nor to vest in the husband, being in possession as trustee, on his wife’s death jure mariti ; but that the effect of the contract was to make it the separate estate of the wife without any limitation over, or power of appointment, and therefore distributable under the act of 1791. (Johnston, Ch. of a contrary opinion holding the contract to amount to an entire, relinquishment of all claim on the part of the husband to the estate of the wife, either as husband in possession or as a distributee.)</p> <p>Note. — In the above case, the reporter has found some difficulty, and has not perhaps succeeded, in giving the principles decided by it. Where the judges differ in their opinions, those principles, upon which the case depends, must be considered as established, in which a majority of them concur.— In this case the circuit chancellor, held, 1. That the marriage contract or agreement, was not a marriage settlement, within the meaning or terms of the act of 1823, and not therefore necessary to be recorded in the office of the register of mesne conveyances. 2. That according to the true construction of the agreement, it did not amount to an entire relinquishment of all claim or interest on the part of the husband, to the estate of the wife; but that the effect of it was merely to make it her separate estate, and that on her death, the husband was entitled to his distributable share of it, under the act of 1791. It will be perceived, that Johnson, Ch., is represented as delivering the opinion of the court. So far as the mere affirmance of the circuit decree is concerned, there is no difficulty, for in this a majority of the appeal court unite; to wit, himself and Chancellor Dunkin. But while in the opinion of Chancellor Johnson, the marriage contract in this case is considered as embraced in the act of 1823, and necessary to have been recorded as required by that act, to give it validity, Dunkin and Johnston, Chancellors, concur with the circuit chancellor in holding it as not falling within the terms of the act. Upon this point, the opinions of Dunkin and Johnston, Chancellors, are given as the opinion of the court. Upon the necessity of recording a marriage settlement, as required by the act of 1823, to give it validity as between the parties, what is sdid by Johnson, Ch., in delivering the opinion of the court, is given as the separate opinion of the chancellor who delivered it. So also, as to what is said on the subject of the duty of the husband to have the deed recorded, and that he should not be permitted to found any claim to the wife’s estate, upon his omission to record it, is represented in the abstract as the separate opinion of the chancellor who delivered it; inasmuch as the other chancellors, Dunkin and Johnston, were of opinion that it was not necessary that the deed should have been recorded at all. As to the effect of the agreement, the opinion delivered by Chancellor Johnson, is given as the opinion of the court; both that opinion and the opinion of Chancellor Dunkin, on this point, agreeing substantially with the circuit decree. Johnston, Ch., is represented as dissenting on this point. It may perhaps be well to remark, that the difference of opinion, as to whether the marriage contract in this case was embraced in the terms of the act of 1823, and therefore, whether necessary to be recorded or not, did not affect the result of the case. The circuit decree was held correct by Chancellor Dunkin, in giving effect to the contract as unaffected by the act of 1823 ; and Johnson, Ch., who held that the contract should have been recorded as a marriage settlement to give it validity between the parties; also held, that the husband as a trustee of the wife, whose duty it was to have the deed recorded, should not be permitted to set up any claim to the property, founded upon his omission of duty, and therefore gave effect to the instrument, in the construction of which, as before remarked, Chancellors Johnson and Dunkin concur with the circuit decree. It.</p>

Before HARPER, Chancellor, at Abbeville, June Term, 1838. Held: that one tenant in common of a chattel might maintain tro-ver against the person in possession, in whose favor the statute had run as against the other tenants. But though I concurred in that decision, I feel compelled to say, that with respect to this point, the case seems not to have been well considered.

Before HARPER, Chancellor, at Edgefield, June Term, 1838. This case came up on an appeal from the decree of his honor Chancellor Harper, pronounced at June term, 1838, of the court of equity for Edgefield district. The questions raised on the appeal from his decree, and decided by the court at the present term, arose in part out of further proceedings had in the cause under a former decree of the appeal court in the same case, pronounced at December term, 1837.

<p>At the common law in this State, upon a mortgage of lands, the fee was vested, in the mortgagee, and upon a forfeiture of the mortgage, the mortgagee might have maintained an action at law for the recovery of the possession.</p> <p>The provisions of the act of 1791, by which a mortgage is declared to be merely a security for the debt, and the fee still to remain in the mortgagor, does not apply to a mortgage executed anterior to the act.</p> <p>The statute of limitations, in such a case, will therefore run against the title of the mortgagee, to lands under the mortgage, where there has been an adverse possesssion in the mortgagor or his heirs, after forfeiture, for the time required by the statute — though the debt itself may not be barred by the lapse of time.</p> <p>It is believed that no case can be put, in which a man knows that another . claims, and is in the enjoyment of what belongs to him, and neglects to prosecute his claims at law, where there is nothing to prevent his doing so, that he will not be barred by the statute.</p> <p>The circumstance that the mortgage in this case was -executed before the act of 1791, and that the fee was consequently in the mortgagee, who might sue for possession, takes the case entirely out of the reason of the cases of Thayer v. Cramer, 1 M’Cord. Ch. Rep. S95, and Smith & Cut-tino v. Osborne, 1 Hill. Ch. Rep. 212, which go upon the ground that the fee remains in the mortgagor, that the mortgagee can bring no action at law, and that the mortgagor is therefore a trustee for the mortgagee, and cannot claim adversely to him.</p> <p>Upon a bill by the mortgagee, against the heir of the mortgagor, not for foreclosure merely, but seeking to obtain payment of the debt, over and above the sale of the mortgaged lands, if they should not be adequate to it; the executor, it seems, should be also made a party.</p> <p>At common law, land was not liable to execution in the hands of the specialty debtor himself, though it was liable in the hands of the heir, as assets descended; but where judgment was obtained against the ancestor in his lifetime, the land was no longer liable in the hands of the heir. No action could be brought against him on the judgment, and he was regarded not as heir, but merely as tenant of the land. (Per Harper, Ch.)</p> <p>By the statute of Westminster, the remedy by elegit was given against the land in the hands of the judgment debtor, and after the statute it was held, that a scire facias lay against the heir to show cause why a moiety of the land should not be extended. By the statute of 5 Geo. II, lands are made hable in this State, to all debts, in the same manner as they are liable in England, to specialty debts — and the whole land may be seized and sold under execution against the judgment debtor. (Per Harper, Ch.)</p> <p>It would seem to follow in analogy to the English doctrine, that upon the death of the judgment debtor, a scire facias will lie, to show cause why the whole land should not be sold ; according to our decisions, however, a scire facias is not necessary, but the land in the hands of the heir may be at once seized and sold under execution. But if he is in possession not as heir, but only as terre tenant, if the land be bound in his hands, only as it would be bound by the judgment in the hands of any other tenant or holder, it seems to follow from the decisions in Smith v. M’Ra, 2 Bay. 339, and Chollette v. Hart, 2 Bay. 156, that the statute of limitations will operate to bar the lien of the judgment, where the heir claims in his own right, and his possession may be considered adverse, (Per Harper, Ch.)</p>

<p>Where marriage articles, executed in 1809, by the husband, previous to his marriage, covenanting to convey the real and personal property of the wife to a trustee, upon certain trusts in favor of the wife and children of the marriage, were void as to creditors, for want of recording, as required by the act of 1785, the court Held, a deed of marriage settlement of certain slaves, executed by the husband in 1824, in pursuance of the articles, though duly recorded, fraudulent and void as to creditors, the husband having become after the. execution of the articles of 1809, and being at the date of the deed of 1824, largely indebted to the complainants and other creditors. (Harper, Ch., and Richardson, J., dissenting.)</p> <p>Though in equity if a party has two funds, a person having an interest in one only, has a right to compel the former to resort to the other, yet general creditors, or those having posterior liens, can have, it seems, no claim on lands or slaves specifically mortgaged, as against the mortgagees.</p>