Before Benet, J., Laurens, October, 1901.

Foreclosure by Hellams & Gray against H. G. Prior. John W. Carlisle, as executor of Simpson Bobo, intervened by petition and was made a party defendant, and in his answer sets up an equitable mortgage against the lands in question, his testator being the assignee of E. M. Cooper, who sold the land originally to Prior, and who had given him bond for title. At instance of Carlisle, executor, the heirs at law of Cooper were also made parties defendant. The following is the Circuit decree:

“On January 1, 1873, E. M. Cooper sold the defendant, Prior, the lands described in the complaint, which was part of a tract of 400 acres conveyed to him by J. B. Gray by deed, dated December 10, 1869. He gave Prior his bond for titles on payment of the purchase money, for which he took Prior’s notes. Under this contract, Prior went into the possession of the land and has since remained in possession. On March 17th, 1875, Cooper assigned Prior’s notes to S. Bobo, and indorsed upon Gray’s deed to him the following: 'For value received, I assign to S. Bobo, or his assigns, 256 acres of the within tract of land, the balance having been conveyed to E. Patterson. I have given my bond to S. T. Prior and H. G. Prior for titles to the remainder when they pay the balance of $1,447.85, and ten per cent, interest thereon; and if the same is paid by the 25th of December, then they are to have titles to the land; otherwise, the land is the property of S. Bobo, or his assigns. Witness my hand and seal, March 17th, 1875. (Signed) E. M. Cooper, [r. s.] Attest: Mark Cooper.’

“On December 12th, 1883, Prior gave Bobo his obligation, of which the following is a copy: ‘$770. By the 4th of November next, I promise to pay Simpson Bobo, or order, $770, with interest at ten per cent, from 4th of November last, balance for the land whereon I live, containing 170 acres, more or less. Now, if I fail to pay the above amount when due, I am to pay rent for the next year, 1884, one-third of all that is made on the premises, and give possession on demand. Value received December 12th, 1883. (Signed) H.G. Prior, [r. s.]’

“Between the date of Cooper’s assignment and Prior’s obligation above, there were frequent negotiations between Prior and Bobo relative to the land, but it will not be necessary to notice them in detail. On January 16th, 1884, Prior gave the note and mortgage set out in the complaint. The heirs of Cooper admit in their answer that their ancestor intended by the indorsement on his deed from Gray tO' convey to said Bobo the title to said land and notes, and that he did thereby subrogate him to all his rights and equities therein, and they disclaim any interest in the premises. There is no issue between the plaintiffs and the defendant, Carlisle. Plaintiff’s attorney concedes, in his argument, that claiming under Prior, their rights depend upon his.

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