Volume 8 — South Carolina Equity Reports

Bill for foreclosure, and sale of the mortgaged premises. The defendant, John Sale, on the 9th July, 1825, mortgaged a tract of ^anc^’ s^tuate ™ Edgefield district, to Charles C. Mayson, in fee, to secure payment of a promissory note in favor of complainant, for #4,296.48, dated 1st July, 1825, and payable four months after date, which had been signed by Mayson as surety for the said John Sale.

George Ruff, deceased, the father of complainant, by the second clause of his will, bequeathed as follows : “ I give to my wife, Ann Barbara Ruff, two work horses, four cows and calves, and ten head of hogs, ather choice, outof my stock.

Motion to set aside a sale of land by the commissioner, and to open the biddings. The land was sold in August, 1828, under an order made in proceedings for partition, and was purchased by the respondent, Dr. Thomas Teague, át the price of $1,008.

<p>An executor not allowed credit in his account for the amount of a promissory note of his testator in his favor, which he hadneglected for a great many years to charge in any way to the estate; there being no proof of a consideration, and some evidence that the note was without any consideration, and intended merely to give colour to another transaction. And it is no excuse for his laches, that he had not filed any account with the Ordinary, which would have furnished the most direct mode of making the charge.</p> <p>The old rule, in accounting for the hire of slaves of charging £10, per annum for each slave, although not imperative in all cases, particularly for short periods of service, where the value of the labour of slaves can be ascertained with more certainty, should nevertheless govern in taking an account for a long series of years, as to which there is no certain and satisfactory evidence to establish any other rate, which would not be equally arbitrary and conjectural.</p> <p>In an account against an executor for the rent of land and hire of slavesjbe should be charged with simple interest only, where there is no allegation that he has ill-treated the slaves. Compound interest is never allowed but in very special cases.</p> <p>On abill by devisees against an executor for an account, and execution of his trust, the executor having claimed a part of the lands devised, in his own right, and an issue been directed to try the title at law, the Court will not order the lands in dispute to be in the mean time surrendered to the devisees.</p> <p>The expenses of manuring, ditching, and fencing the land cultivated by an executor, allowed to him in an account against him for the rent, upon evidence that it was necessary for the preservation and improvement of the property.</p> <p>The delivery of slaves by an executor to the husband of his daughter, who was one of the legatees, will not be presumed to be, either a gift in consideration of marriage on the one hand, or a satisfaction of her claims as a legatee on the other; but in the absence of clear proof to the contrary will be regarded as a payment pro tanto.</p> <p>The wife’s equity will not be enforced against the husband, except upon application made by the wife herself, her guardian, or attorney, or by some one standing in a similar relation to her. But although a settlement will not be ordered upon the application of a straiiger, the Court will not direct the property of the wife, which is under its control, to he transferred to the husband, until she has been consulted, and her consent obtained.</p> <p>The Court of Appeals will not undertake a detailed examination of accounts. These must be settled in the Court below, and the decree of the Chancellor will not be interfeied with, unless a specific error be pointed out.</p>

<p>Tbe committee of a lunatic is chargeable for a loss of the rents and profits sustained by his letting out the lands and slaves of the lunatic, without security, to a party who proves to Joe insolvent, unless it appear, that the party was solvent, or in good credit, at the time of his contract with the committee ; and the burden of proof of such matter of discharge is on the committee.</p> <p>The rule, that the committee cannot make leases of the real estate of a lunatic, operates no further than to prevent his binding the estate after the determination of his trust; and letting the lands from year to year is no violation of the. rule. oí. diet, per Johnson, J.</p>

<p>Richard Ellis by his last will devised his real and personal estate to his widow and children in different portions, and by one of the clauses thereof provided as follows : “ It is my will and desire that should any of my children die without lawful heirs of their body, their part or division of my estate shall be equally divided between the surviving children, share and share alike.” William Ellis, one of the devisees, died in May, 1825, a lunatic, unmarried, and without issue, leaving the complainant, who was his sister of the half blood, and the defendants, who were his brothers of the whole blood, the sole survivors of the testator’s children. The defendants were intitled to his estate, under the act of 1791, in exclusion of the complainant; but the latter claimed a distributive share of the estate derived from the father, both real and personal, by virtue of the limitation over contained in the above cited clause of his will.</p> <p>The cause was heard at Coosawhatchie, in January, 1827, before De Saussure, Chancellor, who decreed for complainant. The defendants appealed, and the appeal was argued at Charleston, in March, 1827.</p>

<p>Michael Perryclear by his will, dated in 1792, devised, inter alia, as follows. “ I also give and bequeath unto my daughter Mary, my negro girl named Rose, together with her increase, being a part of the negroes aforementioned, to her and the heirs of her body, but should she die without lawful issue, then the said negro girl Rose, to go back, and be equally divided amongst the survivors of my children aforementioned.” Mary, the legatee, intermarried with George Ivling, who took Rose into his possession, and died in ISO?', having devised and bequeathed his whole estate, real and personal, to his said wife, for life, with limitations over. She died in 1824, without issue, and the complainants, who were intitled under the will of Geoige Kling, claimed Rose and her increase, on the ground that the limitation over in the will of Michael Perryclear was too remote ; and that the property therefore vested in the daughter Mar^r, absolutely, and having been reduced into possession by her husband, it became \i\ajwre mariti, and subject to the dispositions contained in his will.</p> <p>The cause came on for hearing at Walterborough, in May, 182S, before De Saussure, Chancellor, who was of opinion with the coittplainants, and made a decree accordingly. The defendant now moved to reverse his decree.</p>

<p>On appeal from the decree of Thompson, Chancellor, at Charleston, April 1827.</p>

<p>Where a married woman is the sole distributee of the personal estate of an intestate, and there are no debts, and the husband is in possession of the property during the coverture, the marital right attaches, although there has been no administration; and if administration is obtained after the death of the husband, the administrator will not be intitled to maintain a suit for the recovery of the properly.</p>

Before Harper, Chancellor, at Walterborough, January, 1830. On this cause coming-on for a hearing, a motion was made to dismiss the bill, for want of equity appearing on its face.

Before Harper, Chancellor, at Georgetown, February, 1829. Bill for assignment of dower. Held: that the wife was not entitled to dower, as against the mortgagee; butthatshe had a right to redeem, and that the right to dower would then attach.

This was a bill to subject legacies, in the hands of the legatees', to the payment of a debt of their testator ; executions at law against! the executrix, who was also a party defendant to the bill, having been returned nulla bona.

Before De Saussure, Chancellor, at Charleston, January, 1830. Held: that as Gibbes was elected under the constitution of 1778, he was intitled to hold by contract; a ground on which the Court would not have put their decision, if they had supposed the master to be a “judge,” within the meaning of the constitution of 1790.

This was a bill to injoin the defendant from exercising the functions of commissioner in equity for Charleston District. The common injunction was granted, but before answer filed, the complainant obtained a rule on the defendant, to shew cause why he exercised the duties of said office. Cause was shewn in February, 1822, before Judge Thompson, who made the following decretal order.

<p>On appeal from the order of Harper, Chancellor, at Union, June, 1829.</p>

<p>Where the exceptions to the commissioner’s report are rendered unintelligible from his neglect to report the evidence upon which Ms conclusions are founded, the cause will be remanded for trial de novo, although the report has been confirmed by the Chancellor.- A party who thinks Mmself aggrieved by the judgment of the Circuit Court, is intitled under the constitution to appeal from it; and of this right he cannot be deprived by the negligence of a pnblie officer.</p>

Before Harper, Chancellor, at Chester, in June, 1829. This was a bill for an account of the distributive share of the complainant, Mrs. M'Caw, in the estate of her father Allen De Grafienreid, deceased, of which administration had been granted to the defendant, who had also been appointed guardian of the complainant.

<p>This was a bill for partition, filed in Chester District; and came up on an appeal from various decrees and orders, which will be sufficiently understood from the opinion delivered in the Court of Appeals.</p>

The complainant was a co-obligOr, with others, in a joint and Several bond, to the defendant, as sheriff of Union District, the condition of which was, that one Lewis M'Elmurry should faithfully… Held: that the question of jurisdiction was concluded by the decretal order, and overruled' the exception : and on this ground, among others, the defendant appealed from the several orders made in the cause.

At Union, June, 1829. Harper, Ch. This was a bill to compel specific performance of an agreement for the purchase of land. Held: as to goods, that the auctioneer taking down the name, was a signing within the statute : and it is very singular, that after, and without disturbing that, it was held at Nisi Priiis, by Lord Chief Justice Eyre, that it would not do as to land.

This was a bill to set aside certain sales, as fraudulent; and came onfor hearing, at Fairfield, in June, 1829, before Harper,Chancellor, from whose decree the case will be fully understood. Harper, Ch. On the 23d of February, 1827, Hugh Y. Neil executed a bill of sale, of four slaves, to the defendant, James Cockrell. The consideration stated in the bill of sale, is $700.

<p>The defendant, who was a purchaser of a slave from the tenant for life,for a valuable consideration, having in his answer, to a bill by a party claiming under the limitation over, denied notice of the fiduciary character of the tenant for life, and notice to him not having been sufficiently proved, the bill as to him was dismissed.</p> <p>Although parol evidence is inadmissible to add to, or explain a deed, yet if a conveyance, purporting to be voluntary, is impeached for fraud, it is competent to the party claiming under it to shew, that in fact it was made upon a valuable consideration. Its being voluntary does'not render it void, but is merely evidence of a fraudulent intent; and any evidence is admissible, which shews that no such intent existed.</p> <p>A voluntary conveyance cannot be avoided by a subsequent creditor, without proof of its having been made with a view to future indebtedness, or of circumstances from which actual fraud may be inferred.</p> <p>If tenant for life sell a slave absolutely, his liability to the person intitled by a limitation over, is contingent upon the slave’s surviving him; and the remainderman, therefore, is not such a subsisting creditor, as is intitled to avoid a voluntary conveyance, by the tenant for life, even of Ills whole estate, merely because it is voluntary.</p>

At Fairfield, July, 1829. Harper, Ch. The principal object of this bill is to compel the delivery of certain slaves mentioned in it, and to have an account of their hire. These slaves are charged to have been legally trans. ferred and delivered to the complainants, by the defendant’s intestate, Major James Goodwyn, who was the father of the complainant, Mrs. Blake, in the latter end of the year 1824.

Before De Saussure, Chancellor, at Cheraw, February, 1830. John King, (he complainant’s testator, by his» will, directed, that his estate should be kept together, and managed, for the benefit of his family who should live with his wife, until his youngest son, Noel King, should arrive at the age of eighteen years, and then be distributed among hi's wife, and éhildren, in certain proportions.

Before De Saussure, Chancellor, at Cheraw, February, 1830. This was a bill by the distributees, for an account of the defendant’s administration of the estate of his intestate. The defendant bad, from time to time, advanced sundry sums of money, over and above the assets which came to his hands, for the payment of debts due by his intestate, and for the support and education of his children, the present complainants.

<p>The creditor of an executor,'or other , trustee, has, in general, no right to resort to the estate of the testator, or trust estate, for payment of purChases made, or contracts entered into, for the benefit of the trust: and the only recognized exception to the rule is confined to cases, where, if the executor, or trustee, had paid the debt with his own funds, he would be in advance to the estate, and would be intitled to be.reimbursed out of it; in which case, if the executor, or trustee, be insolvent, the creditor will be allowed to take his place, and be paid out of the estate, to the same extent. Where the executor, or trustee, has received funds of the estate, sufficient to pay the debt, and has not applied them to the purposes of the trust, the creditor cannot resort to the estate for payment.</p> <p>A decree in favor of a creditor against an executor, for purchases made by the latter, for the benefit of the estate,’binds the executor, only, although it directs him to pay the debt “ out of the estate of the testator and if the executor has received assets of the estate, for which he has not accounted, more than sufficient to satisfy the decree, the estate cannot be made'liable to it in the hands of an administrator de bonis non.</p> <p>A debt contracted by an executor, for the rent of lands, or hire of slaves, for the benefit of the estate, stands upon no higher ground, in regard to the right of the creditor to be paid out of the estate, than any other debt contracted by the executor. ' s</p>

Heard by De Saussure, Chancellor, at Darlington* February, 1830. This was a bill to render the defendant liable for a debt contract, ed by his deceased wife, prior to his marriage with her, on the ground, that he had received with her a fortune more than sufficient to pay all her debts. The debt was upon a bond to the wife of the complainant, dated in January, 1818, and became due in October of the same year.

<p>Before De Saussure, Chancellor, at Darlington, February, 1830.</p> <p>This cause came up upon exceptions to the commissioner’s report, on a bill filed by the creditors of the Bank of Cheraw against the president, directors, stockholders, and others, to obtain payment,'p,f their' demands out of the assets of the bank, which had stopped payment; to which bill the defendant, Richard Maynard, the cashier of the bank, was made a party, on the allegation that he was a debtor to the bank, and a defaulter to a considerable amount. In February, 1828, a receiver was appointed, and shortly afterwards the defendant, Maynard, delivered to the receiver all the assets of the bank in his hands ; and at the same time he paid the balance which appeared on the books to be due by him to the bank : whereupon his account was balanced in the books. This payment was made in bills of the bank, which were in his hands at the time when the bank stopped payment. At a meeting, on a reference of the accounts to the commissioner, in August, 1829, it appeared, that the defendant had been erroneously credited in his account, with a sum to which he was not intitled; and the error being corrected, he The remained indebted to the bank to the amount of that credit, circumstances were these. A check on New York, drawn by the Bank of Cheraw, had been indorsed by one Lazarus, and the defendant, and transferred to the Tarborough Bank, of North Carolina ; and this check not having been paid when the Bank of Cheraw stopped payment, the áefendant,-supposing that the indorsement of Lazarus and himself was a joint indorsement, and that they were jointly, and equally, liable, credited his own account with $1,200, being half the amount of the check, and at the same time credited the account of Lazarus with the other half. At the meeting in August, 1829, the check was produced by Lazarus, who was in fact the first indorser, and who had in consequence taken it up at the Tar-borough Bank; and he now claimed a credit for the whole amount. This was assented to by the defendant, who admitted that the credit in his account was erroneous, and that he was indebted to the bank for the amount; but he tendered in payment an equal amount of the bills of the bank. This was objected to, on the ground, that the bills now tendered by the defendant, were not in his possession when the bank stopped payment, but had been recently purchased, and at a great discount, for the purpose of making this tender. The fact, of the recent acquisition of the bills tendered, was conceded by the defendant, but he produced evidence to shew, that when the bank stopped payment, he was in possession of bills of the bank, more than sufficient to have discharged the entire balance due by him, including the $1,200, erroneously credited ; and that after he had paid the balance, which appeared against him on the books of the bank, he had disposed of the residue of these bills, at a great sacrifice. The facts in evidence were set forth port of the commissioner, who submitted the matter sion of the Court.</p> <p>The bills tendered^eannot b^xeri ceived in payment of the balance, admitted to be due wefériaant. It would be going very far, in any case, to bought up at a discount after a notorious insolvency, in discount against debts due by the purchaser. It mu^kdgadcU£^' cessarily, to a disgraceful and injurious scrambling in all cases of insolvency, and defeat every effort to obtain a fair and just distribution of the insolvent’s effects, through the instrumentality of this Court. But if it were allowed in other cases, it certainly will not be tolerated, where the debts were bought up after the appointment of a receiver. By the appointment of a receiver, the equitable property of the assets is in fact changed. From that time they belong to the receiver, as the agent of the Court, and creditors, whether parties, or not, are intitled to nothing more than their equal dividend; nor can a debtor to the insolvent, by purchasing a creditor’s claim, intitle himself to more than the dividend to be paid upon it.</p> <p>The circumstances of the defendant’s case, cannot make it an exception, to what must be regarded as the general rule. If he had bills of the bank in his possession, at the time of the failure, he might have paid his debt with them, or he might have disposed of them, as he pleased. He chose the latter, and must abide the consequences. It is said he was misled by the books of the bank; but he himself made the entry, by which he alleges that he was misled. Admitting that he was without fault, yet all that he can ask is,, that he should be allowed to do now, what he might have done at first, to pay his debt with bills, of which he was the owner, when the bank stopped payment. But he asks more than this. He asks not merely to correct his mistake, but to gain from it a right, which he did not possess before; namely, to pay his debt with bills, purchased since a receiver was appointed, It would be dan. gerous, in the extreme, to comply with such a request.</p> <p>It is clear, from the evidence, that when the bank stopped payment, the defendant was in possession of its bills, to an amount more than sufficient, to discharge the whole of the debt due by him ; and it is conceded, that he was intitled to have paid his debt with these bills. This being the case, it is obviously a matter of indifference, whether his debt is paid with these bills, or bills subsequently acquired ; inasmuch, as the surplus bills, after the payment of the debt, no matter when acquired, could only be used by the defendant, to obtain' a dividend of the estate, in common with the other creditors. The whole argument, therefore, founded on the injury to creditors, in permitting subsequently purchased bills to be set up in discount, falls to the grouud. So, too, it is a mistake, to say that the defendant claims a new privilege, in consequence of the error in the account. He asks no new privilege, but merely to be protected against the consequences of a mistake, which has worked, and can work, no injury to the creditors; and he claims to be permitted to do now, only that, which it would never have been questioned, but that he might have done, if he had not been led, by the mistake in the account, to dispose of the bills originally in his possession. It is true, that the mistake originated with the defendant himself; but that is immaterial. It is of no consequence, who made the mistake, as it has injured no one. It is sufficient, that it is a mistake, and not fraud, which is,not surmised ; and that being the case, the defendant is intitledto be relieved.</p> <p>De Satjssure, Ch. The question in dispute involves many circumstances, which require a minute examination, in order to come to a sound conclusion. The facts in evidence, are very fully set forth in the commissioner’s report -; and after a careful consideration of them, I am of opinion, that the defendant, Maynard, ought not to be charged with the balancé claimed of him, by the creditors of the bank. That was extinguished by the entry,' crediting him with half the amount, of the check indorsed by himself, and Lazarus. At that time, he had bills of the Bank of Cheraw in his hands, of his own property, which he could have applied to the payment of the balance due by him, if that had not been already effected, by his being credited, as stated. The entry of that credit, however, was an error, as Lazarus was his indorser, and therefore liable to him. But the correction of that error, ought not to prejudice the defendant. He is intitled to be placed in the same situation, that he would have been in, if it had not been committed, when it is conceded, that he was at liberty to have paid off the balance he owed to the bank, with its bills, which he had in his hands.</p> <p>This case is distinct from the general one, of debtors of the bank seeking to pay their debts, by buying up its notes after failure. I decide nothing as to that. My decision rests upon the special circumstances of this case. In my view, if it be correct, the defendant, Maynard, has settled his account, as cashier of the Bank of Cheraw ; and having delivered over to the receiver, appointed by the Court, all the funds of the bank, in his hands, it is ordered, and decreed, that the receiver deliver up to him his bond, given for the faithful performance of his duty, as cashier, to be cancelled.</p> <p>From this decree, the complainants appealed, on the grounds urged in the Circuit Court.</p>

<p>In the administration of the estate of a deceased administrator, a sum of money, due by him, as administrator, to the estate of his intestate, ranks ag a kon,2 debt.</p> <p>Parties claiming a fund in Court, are not concluded by an order, to which they were not parties, making a different disposition of the fund; and if they are intitled to the fund, and the order has not been carried into effect, it will be rescinded, at their instance, on a proper proceeding for that purpose.</p>

This case, which was heard by Harper, Chancellor, at Laurens, in July 1830, will be fully understood from his decree. Held: that parol evidence could not be received to shew, that a release of dower was intended to be a release of th© inheritance. Even where the agreement is admitted by the answer., yet the defendant may protect himself by the statute of frauds.

<p>This was a bill by an administratrix, and the sureties to her administration bond, to be relieved against a judgment at law upon the bond, recovered against them in an action instituted for the benefit of certain creditors of the estate, who had previously recovered judgments against the administratrix, for their respective demands. The bill stated, that as soon as the administration had been granted, the administratrix advertised for creditors, sold the effects of her intestate, by permission of the ordinary, and paid off all the demands of which she had notice : that, subsequently, she was notified of several other large demands against her intestate, which his estate was wholly insufficient to pay ; and that the affairs of the estate proving to be complicated, and feeling herself incompetent to manage them, being ignorant of business, she had delivered all the books, papers, and effects, of her intestate, then in her hands, to the ordinary, and requested permission to resign her administration, to which request the ordinary made no reply. That she was afterwards advised by a gentleman, whom she employed as counsel, that it was necessary that a receiver should be appointed, and an individual was selected for that purpose; and that she was subsequently informed by her counsel, that the individual selected had been appointed receiver : that in consequence of this information, she supposed that she was discharged from her administration, and, therefore, paid no attention, either to the actions brought against her, as administratrix, or to the action against herself and sureties, on her bond; and that her sureties, relying upon her, had also neglected the action against them, and judgment had, in consequence, been recovered against them, without any defence made. The bill prayed, that the judgment might be injoined, and the estate administered by the Court.</p> <p>The defendant demurred generally, and the demurrer was argued at Union, before Thompson, Chancellor, who overruled the demurrer ; and after various subsequent proceedings, the cause was brought up on appeal, amongst other things, from his decree.</p>

<p>It is within the discretion of the Court, to,permit a hill to be amended, hv substituting the name of a new, for the original complainant, even after answer filed; but it must he upon payment of all the costs, up to the time of the amendment, as well as of the amendment itself.</p>

<p>Before Haepee, Chancellor, at Columbia, February, 1830.</p> <p>This was a bill for an account and settlement of the estate of William F. Goodwyn, deceased, which had been referred to the commissioner, and now came up upon exceptions to his report. The only exception, which it is necessary to notice, related to commissions, which were allowed, on the receipts and payments of John Howell, the deceased executor, which were very considerable ; and all the facts material to the question, raised by this exception, will be sufficiently understood, from the circuit decree.</p> <p>Haepee, Ch. The general rule is, that executors and adminis. ttators are intitled to commissions, under the statute, for all moneys received, and paid away, by them; but they must conform to the requisitions of the statute.</p> <p>In this case it is objected, that the executor did not make any return to the ordinary, although he had been in the management of the estate, for several years. It has been long settled, that for the years for which an executor, or administrator, has not made returns to the ordinary, he is not intitled to commissions; nor is he to have commissions, on sums of money received, and paid away, in one year,in which he neglected to make a return, by subsequently bring, ing forward those sums into a later year, for which he does account, as that would defeat the statute altogether : but there can be no doubt, as to his right to commissions, on his receipts and payments, within the year immediately preceding his making his returns.</p> <p>The circumstances, under which the question arises in this case, are peculiar. The facts are as follows. John Howell, the executor, died in October, 1825,-without having made any return ; but an account of his administration, was returned to the ordinary, by bis administrator, Josse M. Howell, in November, 1826 s and the commissioner has allowed commissions on the transactions of the year 1825, which were very considerable.</p> <p>^'s contended, for the complainants, that it is not competent for the administrator of an executor, or administrator, to make the return, and obtain the commissions, even for the estate of his intestate; for that-case is not provided for by the statute. In my judgment, however, it is clearly within the spirit of it.</p> <p>Suppose an executor, or administrator, conducts large pecuniary concerns for an estate, and receives, and pays away, considerable sums of money, which he enters in his book, but dies at, or near, the end of the year; and his executor, or administrator, goes at the beginning of the year, and exhibits the accounts to the ordinary : ought not that officer to receive them, and allow the commissions ? The service was performed, and the policy of the law is to encourage returns and accounts, by executors, and administrators, before the ordinary. It seems to me, that in such a case, the commissions ought to be allowed.</p> <p>Another objection was made, that Jesse M. Howell, the administrator of John Howell, did not make the return of the pecuniary transactions of the estate of Goodwyn, for the year 1825, for which the commissions were allowed, until November, 1826; whereas, they should have been made at the first Court of Ordinary for that year.</p> <p>The 28th section of the statute enacts, that executors, and administrators, shall, annually, whilst the estate shall remain in their care, or custody, at the first Court to be held after the first day of January, render to the Court of the county, or ordinary, of the district, from which they obtain probate of will, or letters of administration, a just and true account, upon oath, of the receipts and expenditures of such estate, the preceding year : and if any such executor, or administrator, shall neglect to render such annual account, he shall not be intitled to any commissions for his trouble, in the management of the estate, and shall, moreover, be liable to be sued for damages, by any person, or persons, interested in- the said estate. P. L. 495.</p> <p>The letter of the statutory provision does seem to require the return to be made at the first County Court, or Court of Ordinary, held after the first day of January, in each year ; but yet it is obvious, that the provision had reference mainly to the County Court system, which then existed, and had regular times of meeting, but have since been abolished. There are, in fact, no stated periods for holding the Courts of Ordinary ; and if the statute should be rigidly applied to these transactions, then a sitting of the Court of Ordinary, called for some special purpose, on the next day after the first day of January, without general notice of its sitting, which • . , „ , . . c .. . , is never given, might cut off the claim of all the executors, and administrators, in the district, however regular their accounts, and habits of accounting. There is an additional reason for not applying such a rule of construction to cases like the present, which is furnished by the statute itself; for, by one of its provisions, on the death of a party, time is given to his representatives to do acts, which he, himself, if living, would have been compelled to do earlier.</p> <p>Besides, this provision is in the nature of a penalty ; for it not only works a forfeiture of commissions, but subjects the executor, or administrator, to a suit for damages, and, therefore, must be construed strictly. It might be added, that it has not been shewn, by proof, that there was any regular Court of Ordinary held in the district prior to November, 1826, when the return was made.</p> <p>Upon the whole, I am of opinion, that the defendant is intitled to the commissions which have been allowed by the commissioner; and the exception is, therefore, overruled.</p> <p>From this decree the complainants appealed, and moved that it might be reversed, on the following grounds :</p> <p>1. That executors, and administrators, who fail to make annual returns, are not intitled to commissions.</p> <p>2. That commissions are intended as a compensation for the several duties required by law ; and unless all those duties are performed, commissions are not to be allowed.</p> <p>3. That none but the executor, or administrator, can perform those duties, so as to be intitled to commissions ; and his adminis. trator is not competent to make a legal return, so as to give a right to the commissions.</p>

At Barnwell, February, 1830. Harper, Ch. The bill states, that the complainant was lately in possession of certain slaves, Csesar, and Hagar, and the children of Hagar, which her father, and intestate, Daniel Miller, purchased in the year 1814, from ono John R.'M’Lewrath, who executed a bill of sale of them, to him, and of which he remained in quiet possession, until his death, in 1819, when they came into the possession of the complainant, as his administratrix, and…

Heard by De Saussure, Chancellor, at Coosawhatchie, in January, 1829. Christopher Langley, by his last will, amongst other things, bequeathed a slave named Joe, to his daughter, Mary Cannon, the wife of Henry Cannon, and died on the 1st March, 1812: and his daughter, Mary Cannon, also died, on the 16th of the same month, leaving her said husband, and their only child, the present complainant, at that time an infant of tender years, surviving her.

<p>Under the act of 1824, which provides, “ that the second section of the-act of 1712,^limiting the time for the prosecuting of a right, or title, to lands, to jive years, be altered, so as to extend the time for the prosecution of such right, or title, to ten years,” a party residing beyond seas is intitled to ten years for the prosecution of his right, or title, to lands, although by the second section of the act of 1712, he is limited to seven years, vide acts of 1824, p. 24, P. L. 101.</p> <p>Although, if the Legislature will plainly enact that which is hard, and unreasonable, the Courts are bound to give it effect; yet, if the terms of an act are not unequivocal, the Courts are not bound by their most obvious literal import, but should give such a construction to them, as ■tfill suppress the mischief, and advance the remedy, contemplated by the framers.</p> <p>A purchaser pendente lite, for valuable consideration, without fraud, and without actual notice, will be protected in his possession, against the lien of a mortgage, by the statute of limitations.</p> <p>A decree in equity, for the payment of money, constitutes a lien on land", similar to that of a judgment at law, so as to bind it in the hands of a purchaser, whose title has not been matured by the statute of limitations,-</p> <p>The lien of a decree is not defeated by the plea of purchase for valuable consideration, without notice. This defence is a protection in equity only, and can never prevail against a legal title, to which there is no obstacle to a recovery at law.</p> <p>Although, in general, equity will not relieve against a purchaser for valuable consideration, without notice ; yet where, upon a bill to revive a decree, the purchaser was directed to be made a party, as a favor to him, and to enable him to protect himself against the decree, if it appear, that the ■ lien of the decree might have been enforced against him, without the aid of the Court, a decree will be made against him upon the ground of the lien.</p> <p>P. L. 101.</p> <p>Acts of 1824, p. 24.</p>

<p>On appeal from the decree of De Saussure, Chancellor, at Georgetown, February, 1830.</p>

<p>An infant is bound by his contract, although it is not for necessaries, if he in any way affirm it, after attaining to full age; and where a slave has been purchased for an infant, if he insist upon retaining the slave, when of age, and with a full knowledge of all the facts, it will be regarded as an affirmation of the contract of purchase.</p> <p>Where one makes a purchase for an infant, avowedly as agent, if the infant affirm the contract, after attaining full age, he will be directly liable to the vendor: and it will make no difference, that the agent was in possession, in the character of an executor, of funds, to which the infant was intitled, if it clearly appear, that the credit was given, not to him, but to the infant; especially, if the infant, after maturity, took the bond of the agent, for the amount of the funds in his hands, as executor, without allowing credit for the purchase money, although the bond has not been paid.</p> <p>If a slave is sold, upon the condition of being mortgaged, for the purchase money, the purchaser takes, subject to the lien of the condition, although a mortgage was not in fact executed.</p> <p>Am, p. 159.</p>

<p>On appeal from the decree of De Saussure, Chancellor, at Charleston, May, 1829.</p>

<p>Lands held in fee-simple conditional are hound, after the birth of issue, by the lien of a judgment, or decree, against the tenant, in bar of the right of the issue to take per formam doni.</p> <p>The issue in fee-simple conditional cannot claim against the act of the tenant, and can only take by succession from him, and in his right; and therefore, it would seem to follow, that if there be issue, lands held in fee-simple conditional, although not bound by a lien, are nevertheless assets for the payment of debts. ob diet. per Harper, J.</p> <p>A parol agreement, before marriage, to settle the personal estate of the wife to the uses of the marriage, is not sufficient to support a settlement executed after marriage, and after the marital rights had attached, against the creditors of the husband.</p> <p>A voluntary settlement is void as to existing creditors, if the donor after-wards prove to be insolvent; but the rule admits of a qualification, where the debts are utterly inconsiderable, when compared with the donor’s property, such as debts incurred for the weekly expences of his household. If he be more largely indebted, his solvency, at the time of the settlement, can only be judged of by the event; at least, if there be an exception, where the insolvency was subsequently occasioned by some sudden and unforeseen casualty, .such as fire, or tempest, yet the fluctuations in the value of property, occasioned by the mercantile condition of the country, cannot be ranked among those casualties.</p> <p>No delay, short of such lapse of time as will raise the bar of the statute of limitations, or the presumption of satisfaction, will preclude a creditor from pursuing the property of his debtor in the hands of a voluntary donee.</p> <p>A creditor taking a security from his debtor, who has made a voluntary settlement, is not thereby precluded from pursuing the settled property, if the security proves to be insufficient, and the debtor insolvent: but it would be otherwise, if the creditor had consented to the. settlement, and the security were given in consideration of that consent.</p> <p>1 Bailey,575.</p> <p>2 Westm. o. i. 2 Inst. 332.</p> <p>Blake *• Heyward, ante,p.208.</p> <p>2 Bailey, 123.</p> <p>vide Riley’s Equity Cases, p.232.</p> <p>13 Eiiz. e. 5’ p‘Ll fi7,</p> <p>cowp.434.</p>

<p>A receiver, who discharges the duty assigned to him, is intitled to the usual commissions, although they may appear to be more than a reasonable compensation for the services rendered. In some instances they may be more, in others less, than an adequate remuneration ; but even this is preferable to the uncertainty of suffering the rate of compensation to depend upon the discretion of the master. Nor is it any ground for an exception to the general rule, that the business was conducted almost entirely by overseers, and factors, inasmuch as the receiver has incurred the responsibility incident to these sub-agencies.</p> <p>On a bill filed by a wife against the creditors of her husband, to injoin the sale of certain plantations, and slaves, claimed by them under an assignment from him, and by her under several settlements, it was ordered, that the sum of $2,000, per annum, be paid to her out of the crops, until the determination of the suit. The crops proving insufficient, after defraying expences, to pay the annuity, held, that she was not intitled to be satisfied for the deficiency out of the capital of that portion of the property, to which it was decided that the creditors were intitled, but that she was restricted to the profits: and that it made no difference, that the husband had previously agreed to pay her tho same annuity, absolutely; for even if such agreement had been made, it was not binding on the creditors, and, moreover, was suspended by the order.</p> <p>The costs of a groundless application ordered to be paid by the party making it, although the costs of the cause, generally, were directed to be paid out of the fund in Court.</p>

In the year 1791, the complainant, Charlotte Price, then Miss Charlotte Smith, intermarried with the defendant, Thomas W. Price ; and at the time of her marriage, was intitled, under the will of her grandfather, James Skirving, to a legacy, which had been invested in the purchase of Iwenty-five slaves, by the executors, who held them for her.

<p>Heard by De Sahssure, Chancellor, at Charleston, May, 1S29.</p> <p>The complainants were creditors of Admiral Graves, and of his son, Samuel Colleton Graves; and filed the bill in this case, in 1824, to set aside certain conveyances by Admiral Graves and his wife, to their said son, and also the marriage settlement of the son, executed upon his marriage with Miss M’Pherson. The conveyances to Samuel Colleton Graves, included a very large and valuable real estate, which was the inheritance of his mother : and the marriage settlement comprised this real estate, and all the estate real, and personal, of Samuel Colleton Graves, including three hundred slaves; to the enjoyment of all of which Mrs. Graves, by the terms of the settlement,.would be intitled in the event of her surviving her husband. Miss M’Pherson had a very ample fortune of her own, which was also settled upon her; with the exception of certain stocks, of the value of about $10,000, which were permitted to go into the possession of Mr. Graves, after the marriage, without being protected by any settlement. The cause was heard in January, 1828, by Thompson, Chancellor, who, by his decree, set aside (he conveyances, by Admiral Graves, to his son, and also the settlement made by Samuel Colleton Graves, of his own property, as void against the creditors of himself, and his father. This decree was affirmed by the Court of Appeals, in April, 1828, with some modifications : and by that decree it was ordered, amongst other things, that the real estate of Samuel Colleton Graves, derived from his mother, should stand charged with the repayment of the value of the stocks of his wife, which were suffered to go into his hands without a settlement; to which stocks his wife, who, on his death, had intermarried with Nathaniel G. Cleary, was declared to be in-titled, on the ground, that it was fair to presume that Mr. Graves had been permitted to reduce them into possession, on the faith of the settlement of his own property, which was set aside. See the decree of the Court of Appeals, in Riley’s Equity Cases, 282, et seq.</p> <p>A sale was ordered to be made by the master, and the accounts were referred to him; and the cause now came up, upon exceptions to his report, which will be sufficiently understood from the decree of the Chancellor.</p> <p>Re Saussurk, Ch. The complicated rights of the parties have been settled by the luminous decree of the Court of Appeals, in April, 1828 ; and nothing remains to be done, but to carry that decree into effect. To accomplish that object, a reference to the master was ordered, and he has made a report, to which various exceptions have been filed by the parties interested.</p> <p>On the part of Mr. and Mrs. Cleary, and her trustees, it is contended, that the master ought to have reported interest on the amount of the stocks transferred to Samuel Colleton Graves, which had not been included in the marriage settlement of Miss M’Pherson’s own property, on the faith of the large settlement made by Mr. Graves, of what he stated to be his property ; which last settlement, the Court of Appeals has set aside as to the creditors of Samuel Colleton Graves.</p> <p>The claim to interest was resisted by the complainants; but it appears to me, that the principle, which led the Court of Appeals to order the payment of the principal amount of the stock, leads also to the conclusion, that interest thereon should be allowed, at least from the death of Mr. Graves. If the deceptive settlement by Mr. Graves, of his own estate, (deceptive from his being so largely in debt that he was not at liberty to make such a settlement,) had not been made, this portion of the fortune of Miss M’Pherson would have been included in the settlement of her own estatc’ wh‘ebj as was said in the argument, is unquestionable, and unquestioned. In that case, on the death of Mr. Graves, it would have survived to her, by the terms of the settlement, and she would have had the use and enjoyment of it. I am, therefore, of opinion (hat she was intitled to interest on the a mount reported, as the value of the stock, at least from his death ; and it is ordered, and decreed, accordingly, to be paid, with the principal, out of the sales of the estate reported, conformably to the decree of the Court of Appeals.</p> <p>The next question made by the exceptions, relates to certain slaves, purchased, by Samuel Colleton Graves, from Mrs. Wainwright.</p> <p>It is contended, for the complainants, that these slaves, now in the possession of Mrs. Cleary, should be delivered up as part of the estate of Admiral Graves, and liable to his debts ; or at all events, if considered as part of Samuel Colleton Graves’ estate, and included in the settlement, made by him of his own property, they should be delivered up to pay his debts, and those in which he was jointly bound with his father.</p> <p>The facts in relation to these Wainwright slaves appear to be as follows: Samuel Colleton Graves purchased them from Mrs. Wainwright, on his own account, and took the bill of sale in his own name. It is alleged, however, that he paid for them with the funds of his father ; and Mr. Robertson testifies that he did pay for them with the proceeds of the sale of the Fairlawn tract, which belonged to his father: and as it does not appear, that he had any distinct estate of his own, it seems to be pretty fully established, that they were so paid for. Whether this state of things ought to induce the Court to order them to be delivered up, would seem, however to be questionable ; for it is not so clear, that the father, or his creditors, could follow these slaves identically. He might stand a creditor of his son, for the amount of his funds received by him, and put to his own use ; but as a creditor without a lien on these slaves, more especially as he delivered them up to the widow, voluntarily, after the death of his son, by the advice of counsel. The Court of Appeals did not decide the particular question now made in relation to the slaves 5 for it was not made distinctly to that Court.</p> <p>There is, however, another view, which strikes me as a very strong one. It is this. Allow that these slaves really belonged to Samuel Colleton Graves, and that they were included in the marriage settlement of his property, yet the Court of Appeals has de= eided that this settlement is void as against his creditors; and upon that ground, there was restored to the widow of Mr. Graves, a fund, originally belonging to her, but which had vested in the husband jure mariti. These slaves then really belonged to Mr. Graves, unprotected by the settlement; and therefore are subject to his own debts, as well as to those in which he was bound with his father. The consequence is, that they ought to be delivered up, as the whole subject is now before the Court. It is therefore ordered that the slaves purchased from Mrs. Wainwright, by Samuel Colleton Graves, be delivered up for the benefit of the creditors, with a reasonable allowance for their hire and labor since his death, to be ascertained by the master. The said slaves to be sold, and the proceeds applied to the payment of the creditors, according to the principles of the decree of the Court of Appeals.</p> <p>Mrs. Graves, now Mrs. Cleary, finding herself deprived of the benefit of the settlement, made by her husband, of his property, has applied by petition, to be allowed dower in the lands of which her late husband was seized during the coverture. The lands in question are those conveyed to him by his father, and mother. Several objections are set up against this claim.</p> <p>The first is, that she comes too late, after the decree of the Court of Appeals, the order for sale, and the appropriation of the funds to the payment of creditors. It does not strike my mind, that she comes too late. Whilst she stood upon the settlement, which included all the lands, it would have been absurd to have made a claim of dower in them; It was not until the decree had avoided the settlement, that it was proper to set up the claim ; and the doctrine is well settled, and supported by the authorities, that where a provision is made for the wife, which fails, she may come in and claim her dower : and she is not too late whilst the fund remains under the control of the Court.</p> <p>Other objections are, however, set up, which go against the right of dower altogether. It is contended that the conveyance of the lands by the father and mother to Samuel Colleton Graves, although absolute on its face, was really upon implied trusts, and that the right of dower in his wife cannot attach : and further that the decree of the Court of Appeals having set aside the conveyance as fraudulent and void, no right of dower in the widow of the grantee can arise.</p> <p>It is argued, that the deed, of conveyance was absolute on its face. No trusts appear, and if the son chose, afterwards, to make certain limited provisions out of this real estate, under any private understanding, they do not, of themselves, affect the Validity of the conveyance. The nature and extent of such implied trusts, do not clearly appear: as far as appears, in relation to one of them, it seems to have been, in part, a provision for a daughter of Admiral and Mrs. Graves, who had married Baron Yandersmissen, of a very small part ofthe estate previously conveyed to the son Samuel,- and presupposes the validity of that conveyance. It would be very mischievous, fo allow such secret parol understandings to set aside the whole conveyance, and to defeat the just claim of the widow to' dower, under the absolute conveyance, and vested fee simple in her husband. It is her last plank, when defeated of her settlements Besides, it was a conveyance of the mother, in whom the inheritance of the land was, in which inheritance the creditors of the husband, Admiral Graves, had no interest beyond his life, except as far as she chose. It was competent to her to make the conveyance, without regard to the claims of the creditors of her husband ; and I do not, therefore, think that the first objection is well founded.</p> <p>With respect to the decree of the Court of Appeals, it does not appear to me, that it was intended to go the length which is contended for by the complainants. According to my reading of the decree there is a reserve, as to the extent, to which the conveyance of the lands to the son is avoided. It, doubtless, struck the clear and acute understanding of the Court, that the conveyance of the mother to her son, of her lands of inheritance, which were not subject to the debts of her husband, made a different case, from that of a father making a voluntary conveyance of his own lands, and thus attempting to withdraw them from the just claims of his creditors. It does appear to me, that it was not the intention of the Court to set aside the conveyance from the mother to the son, so absolutely as to bar the widow of dower; for, besides other reasoning, we find the Court taking the ground, that the land considered as the son’s, was still liable to his own debts, as well as to the debts of his father, in which he was joined. Besides, the decree protects the mortgage to Vandersmissen, by Samuel Colleton Graves which it would not have done, if it had been intended to set aside the conveyance to him, absolutely. Indeed, the decree explicitly says, that the deed should be set aside, “ so far as it was necessary to effect its object.” Unless, therefore, I have misapprehended the decree of the Court of Appeals, I feel bound to say, that the fee was vested in the son, and his widow was, and is, intitled to her dower.</p> <p>It is, therefore, ordered, and decreed, that it be referred to the master to ascertain the amount which, under all the circumstances, ought to be allowed to the widow, out of the sales, in lieu of dower. On the minor points of the case, I concur with the report, and the same is hereby confirmed, except so far as it is modified by this decree.</p> <p>The creditors appealed from so mucii of this decree as related to interest on the stocks, and the claim of dower; and Cleary and wife appealed from the order in relation to the Wain wright slaves.</p>

This was a bill to recover the arrears of certain annuities, and biso certain pecuniary legacies, devised and bequeathed to the complainants, respectively, by the will of John Fowler Percy. The cause was heard at Charleston, in January, 1826, by Thompson, Chancellor ; and, upon appeal, it was sent back by the Court of Appeals, for inquiry into the accounts, reserving the questions made by the appeal.

At Charleston, January, 1830. Harper, Ch. The complainants are the executors, and residuary legatees, of Mrs. Mary Dupont, deceased, who was the widow, and administratrix, of John Dupont, deceased. After her death, the defendant, Isaac A. Johnson, administered, de bonis non, on the estate of John Dupont. The other defendants are the children of John Dupont, by a former marriage, and distributees of his estate.

<p>A husband mortgaged the absolute property in certain slaves, which he had acquired with his wife ; but after his death, the wife, who was also the executrix of the mortgagor, filed a bill in the Court of Equity against the mortgagees, to injoin their proceeding under the mortgage, claiming that she was intitled, in her own right, to an estate for life in the slaves mortgaged, to her sole and separate use, with remainder to her children: and in this suit it was determined, by the decree of the Court, that her children were intitled in remainder, but that her interest, which was for her life only, was not an estate to her sole and separate use, and had vested in her husband jure mariti, and was subject to 'the mortgage executed by him ; and it was therefore ordered, that the slaves should be sold for the term of her life, in satisfaction of the mortgage, which was done. At the sale under this decree, the wife became the purchaser of the interest for her life, and remained in possession of the slaves until her death; after which, in a subsequent suit, by other creditors of the husband, to which his administrator, de bonis non, was a party, it was decided, that the wife’s original interest in the slaves was absolute, and that the whole had vested in the husband, and was liable for his debts. Held, first, that the wife took nothing, by her purchase under the first decree, but an estate for her own life; and that, being executrix, neither she, nor her representatives, could set up the absolute conveyance, contained in the mortgage, to defeat the claim of her testator’s creditors to the slaves, after the termination of her life estate, although the mortgagees might be estopped, by the decree and sale, from claiming them under the mortgage. Second, that the possession of the wife would not avail to give her children, as remaindermen under the first decree, a title by the statute of limitations ; but that her possession must be referred to her title as executrix, which only terminated at the same time with her title as purchaser, to wit, at her death: and that the children could derive no benefit from the decree declaring them intitled as remaindermen, as they were not parties to it, nor privies, inasmuch as they were not remaindermen in fact, or in law. Third, that the sale under the first decree, was an extinguishment of the mortgage; and that the mortgagees were estopped, by the decree and sale, from any claim to the slaves, under their mortgage, after the termination of the life estate sold, although the slaves were, in fact, a part of the mortgagor’s assets, and liable for his debts.</p> <p>Neither an executor, nor his representatives, can deny the title of his testator to property in his possession as executor, to which no other person has a valid title, although the testator may, in his life time, have parted with his entire interest in it.</p> <p>An executor cannot hold adversely to his testator, so as to mature a title by the statute of limitations, although he have a title inconsistent with that of the testator; but his possession will be referred to his title as executor.</p> <p>A decree, or judgment, neither binds, nor protects, any one, but those who are parties, or privies, to it.</p> <p>A decree of foreclosure, ascertaining the extent to which the property is liable under the mortgage, is conclusive on the parties; and when executed, extinguishes the mortgage, although it afterwards appear, that the property was, in fact, liable to a larger extent.</p> <p>A direct, final judgment, or decree, of a Court of competent jurisdiction, is forever conclusive and binding, as to the subject matter, between the same parties, and all who are privies in law, or in estate ; although a contrary decree, upon the same subject matter, be subsequently made as to other persons, who were neither parties, nor privies, to the first decree, and who are not therefore bound by it.</p> <p>A decree in a suit brought by an executrix in her own right, but to which she was a necessary party as executrix, and in which the rights of her testator were adjudicated, is conclusive between the administrator de lords non, and the other parties to it, and cannot be re-examined in a subsequent suit between them.</p> <p>To intitle the creditor of an executor to resort to the estate of the testator, for payment of a debt contracted by the executor, for the benefit of the estate, it must appear that the contract was made with the executor, in his representative character: and the creditor must further shew, first, the necessity of the contract for the estate ; second, that the executor has no funds of the estate in his hands ; and third, that the executor is insolvent. If either of these requisites is wanting, the creditor •will be referred to his personal remedy against the executor, vide Guerry v. Capers, ante, p. 159.</p> <p>In this State, a bill of review will lie only for new matter, discovered since the decree, and of which the party could not have the benefit in the first instance, making a new case, and one proper for equity jurisdiction. It will not lie for error in law apparent upon the face of the decree.</p> <p>Where a creditor files a bill for the discovery of assets, whether specifically for himself, or jointly for all the creditors, and the Court by that means gets possession of the assets, the possession draws after it the entire distribution of the fund. And a creditor who comes in under the decree,must contribute rateably to tbe expences of the suit; although he had a judgment and execution, which he might have enforced at law, but neglected to do so, until the fund was in Court: nor will a fee paid to his own counsel, to watch over his interests in reference to his claim, be taken into the estimate of the expences of the suit.</p> <p>vide ante, p' '</p>

<p>On appeal from the decree of Thompson, Chancellor, at Charleston, January, 1828.</p>

Heard by De Saussure, Chancellor, at Charleston, April, 1829. Andrew Swindersine, the father of the complainant, died intestate, in November, 1802, leaving the complainant, and a daughter, both at that time minors, the distributees of his estate ; and in December of the same year, administration of his estate was granted to Daniel Miscally.

<p>This cause came before the Court of Appeals, at Charleston, in April, 1828, on appeal from the decree of Thompson, Chancellor ; and on that occasion the following decree was pronounced.</p>

<p>gure(y t0 an administration bond will be relieved against a decree obtained by a distributee against the administrator, if it appear, that the administrator had made payments to the distributee before the decree, which were not credited in the account settled by it, although there is no direct evidence of intentional fraud, or collusion.</p> <p>A purchase of the equity of redemption by the mortgagee extinguishes the mortgage debt; and the effect is the same, whether the purchase is by a direct contract with the mortgagor, or at a sale of the land by execution under a junior judgment.</p> <p>Where a relative has been permitted to reside in a family, as a friend, without an intention manifested to charge him for his board, he cannot afterwards be called upon to pay for it. What was originally a gratuity cannot be converted into a debt.</p> <p>A debt due by an administrator to his intestate’s estate is assets in his hands; and if the administrator of an intestate become also the administrator of one of the distributees, his liability for the distributive share of the latter, in the estate of the former, attaches upon his second administration : and if he also become the guardian of the sole distributee of his second intestate, his liability attaches upon him in the latter character; and for a default in paying over funds in his hands, to which his ward is intitled, as distributee of the distributee of the first intestate, the sureties to the guardianship bond are alone responsible.</p> <p>The ordinary has no jurisdiction to ascertain and fix' the liability of the surety to an administration bond, and a decree against him, for the default of his principal, is a mere nullity, and wholly inoperative.</p> <p>If the defence, of a surety to an administration bond, to an action at law against him, for the recovery of the amount of a decree against his principal, is such as constitutes a complete legal bar, be is not intitled to come into equity to injoin the proceedings at law, but will be referred to his legal remedy.</p> <p>A party making a payment has a right to direct the application, and if he fail to direct it, the party receiving may apply it to such of the debts of his debtor, as he deems proper. But the proper application of pay. ments is a question of fact, and is often to be collected from the circumstances attending the transactions between the parties. In settling the account between a distributee and the administrator, who was insolvent, with a view to ascertain the liability of the surety to his administration bond, certain payments, and advances, of money, and goods, made by the administrator to the distributee, were ordered to be applied to the distributee’s share of the estate, in the hands of the administrator; although the distributee had obtained a decree against the administrator, for the amount due him for his distributive share of the estate, in which these payments, and advances, were not credited, and the distributee claimed to apply them to other debts, due to him by the administrator: it appearing, that these other debts were not only of a suspicious character, but that, from the circumstances attending the transactions between the parties, it could not have been their intention, that the payments, and advances, should be applied to these debts.</p> <p>In making up an administrator’s account with a distributee, the payments should be deducted, first from the interest due in each year, and then, if there be an excess, from the principal, of the sum in the hands of the administrator.</p> <p>joyner BaSey^ra.</p>

' This was a bill for an account of the estate of States Gist, deceased ; but in order to settle the account, it became necessary, ^lat a cla*m upon bis estate, on behalf of the estate of his brother, Independent Gist, also deceased, should be adjudicated : and for this purpose, Joshua C. Gist, the administrator of Independent Gist, was made a party. This claim was as follows.

<p>The funds of a copartnership consisting of four persons, all of whom were absent from the State, were attached, by writ of foreign attachment, in the Court of Common Pleas, for the separate debt of two of the co-partners ; and the funds having been paid into Court by the garnishee, one moiety of them was, by order of the Court, paid out to the plaintiffs in attachment, upon their entering into bond, with security, to refund, if it should appear,, that they were not legally intitled to retain it, and the other moiety remained in the custody of the clerk of the Court, subject to its order. On a bill by a creditor, who had recovered judgment against thé copartnership in another State, held, that the complainant, as a creditor of the copartnership, was intitled to satisfaction out of the fund attached, in preference to creditors .of the individual copartners ; and that as the only surviving member of the copartnership was beyond the limits of this State, so that he could not be made a party to any proceeding in the Court of Common Pleas, the Court of Equity would relieve, so far as to establish the complainant’s title, as against the surviving copartner, and that the latter was amenable to the jurisdiction for that purpose, in respect of his interest in the fund attached: that the plaintiffs in attachment might also be properly made parties, although not within the limits of the State, by reason of their interest in relation to the fund; but that no decree could be made against them to refund, as they were liable by their bond to another jurisdiction : and that the clerk of the Court of Common Pleas could not be made a party in respect of his custody of the fund, as his possession was the possession of the Court, and therefore not subject to the jurisdiction of the Court of Equity.</p> <p>A party having a clear legal right, in matter of property, and no remedy by means of any other jurisdiction, is intitled to be relieved in equity; provided, the party, against whom relief is prayed, can be properly made amenable to the jurisdiction, and effectual relief can be afforded, conformably to the ordinary method of the proceedings of the Court.</p> <p>The property of a copartnership is liable to the debts of the copartnership, before any part of it can be applied to the individual debts of the copartners.</p> <p>Money in the custody of the law, is not subject to process of foreign attachment ; nor can the owner of funds in the custody of a Court of Law, who is absent from the State, be made a party, by reason of his interest in the fund, to a proceeding in that Court, by his creditor, to subject it to the payment of his demand: neither can that Court relieve the creditor, unless the absent owner is a party, or the creditor’s right has been established by the decision of a competent tribunal within the State.</p> <p>The clerk of the Court of Common Pleas cannot be called upon to an■swer for funds, which are in his custody, as the officer of that Court, and subject to its order. His possession is the possession of the Court, and .the Court of Equity can make no order to bind that Court.</p> <p>Under the 12th section of the act of1784, P. L. 338, a person who is absent from the State, but has property within it, may be made a party to a suit in equity in this State, in respect of that property, although there be no other party to the suit: and he may be made a party in respect of a fund within the jurisdiction, although not in the possession of any individual, who can be made a party; and even when the Court, itself, can exercise no direct control over the fund, as where it is in the custody of ■another Court. And where the owner of the fund is properly made a party, all persons having any interest in relation to it, may, in respect of that interest, be made parties, although not personally within the jurisdiction.</p> <p>The Court of Equity can make no order for the disposition of a fund in the custody of the Court of Common Pleas, except by controlling the parties, who would, otherwise, be intitled to it; and where money has been paid out to an attachment creditor, by order of the Court of Common Pleas, upon his entering into bond, with security, to refund, if it •should appear, that he was not intitled to it, Equity will not order Mm to refund, although it appear that he. is not intitled, as it cannot protect him by injunction against his liability on his bond. A suit may, however, be entertained, to establish the title to the fund, if there be any impediment to a proceeding at law for that purpose.</p> <p>Equity will exercise a jurisdiction ancillary to the' Courts of Law, by removing impediments, or establishing rights, where impediments exist toa trial in the Courts of Law; and it is no objection to the exercise of this jurisdiction, that the Court of Equity does not possess a direct control over the subject matter, so as to be able to give complete relief</p> <p>v l°338784'</p>

<p>At Charleston, May, 1829.</p> <p>De Sausstjre, Ch. This is a bill for the specific performance of an alleged contract, for the purchase of Snee farm. The facts important to the decision of the question submitted, are briefly as follows.</p> <p>Snee farm was sold, by the sheriff of Charleston district, as the property of F. G. Deliesseline ; and at this sale, the land was bid off by Joseph Payne, by whom the sheriff was directed to transfer the bid to the defendant, William Hasell Gibbes, who, it appears, was a judgment creditor of Deliesseline, and intitled to receive some portion of the proceeds of the sale. Mr. Gibbes, who was anxious to sell his bid, entered into a negotiation, for that purpose, with Mr. Wilkie, who, it seems, was acting as the agent of the defendant, William Mathews ; but this treaty was not carried into an actual contract. After this, the complainant, James R. Doar, entered into an agreement with Mr. Gibbes, to take the land, at the price bid for it at the sheriff’s sale ; and on the 13th May, 1828, gave Mr. Gibbes a memorandum in writing, by which he agreed to pay a small portion of the price in cash, and to give security, satisfactory to Mr. Gibbes, for payment of the residue, in January, 1829 : and Mr. Gibbes agreed to make titles to Doar, provided he complied with these terms in ten days from the date. Doar at that ■time offered his brother, and referred to Dr. Legare, as another of sul'et*es* The ten days elapsed, and in the mean time, Mr. Gibbes learned from Dr. Legare, that he deemed the purchase much above Doar’s means, and that he would not become his surety. comPlainant alleges, that Mr. Gibbes told him, verbally, that if he came down in the third week of the May Court, a term beyond the ten days, it would be in time. To this, Mr. Gibbes answers, that he has no recollection of it; but that if it be so, yet the statute of frauds applies, and this loose conversation could not vary the written contract. Mr. Gibbes, having concluded that Doar could not comply with his purchase, and conceiving himself authorised to consider the contract as abandoned, called upon the defendant, Ma'thews, and offered to sell the land to him, saying that he was at liberty to convey it to him. Whereupon Mr. Mathews agreed to take the bid, at the amount offered at the sheriff’s sales ; and actually received from Mr. Gibbes, a transfer of his bid in the sheriff’s books, paid him then a portion of the purchase money, and has since satisfied him for the whole. The sheriff, on being satisfied as to the purchase money, *bas executed titles to the defendant, Mathews, who is now in peaceable possession of the land.</p> <p>It is stated in the bill, that Mr. Gibbes gave Mr. Doar, an order for the keys of some of the buildings; but Mr. Mathews, in his an. swer, states, that upon receiving his titles from the sheriff, he went on the premises, and found them unoccupied, and took possession, which he has since retained. In his answer, Mr. Gibbes insists, that he is not bound by any contract, except the one in writing, which was not complied with by the complainant, who has never paid any part of the purchase money. Mr. Mathews positively denies any knowledge of the claims of the complainant, but avers that he contracted, bona fide, and paid his money, and received his tides.</p> <p>Under these circumstances, the complainant, who has paid no money, prays the Court to compel the specific performance of a contract, which he himself omitted to perform on his part. It was a conditional contract. Titles were to be made, provided adequate security were given within ten days. It is evident, that this proviso was intended to avoid any delay in seeking a new purchaser, should Mr. Gibbes be disappointed in Doar. The proviso was not complied with, and another purchaser was found ; and if a decree cannot be made against him, the object of the bill fails, for this Court cannot assess damages. Indeed, nothing but the loss of an opportunity to invest his funds in the land, is alleged. The complainant does not set forth any specific loss, such as the purchase of slaves, to cultivate the farm, or funds diverted from a profitable investment. And what decree can be made against a bona fide purchaser, for valuable consideration, without notice 1 He lias the legal title, and his equity is at least equal; and he must be protected. It follows, that the Court can make no decree for the complainant.</p> <p>In relation to Mr. Gibbes, it is true, that time is not usually of the essence of a contract, so as to avoid it, in case the exact time be not complied with. But it may be, and is, of the essence, where the other party, or third persons, may be seriously injured, or even exposed to injury. It is the more so, where the contractor engages to do a certain thing, in order to complete the bargain. In this case, the bargain could not be said to be completed, until the security was given. That was to be done in ten days. It was not done. Was the contract to be kept indefinitely open, for any length of time, so as to preclude a sale to other purchasers ] That would be most unjust. ,</p> <p>Mr. Doar not having complied with the written agreement, relies on a parol extension of the time. This, I apprehend, is within the statute of frauds. But if it were not, what are the facts of the case ? Do they intitle him to any peculiar favor ? The bill seeks a specific performance of the contract for the sale of the land; but that is always in the discretion of the Court, the discretion of equity. Would it be the exercise of an equitable dis. cretion, to decree a specific performance in favor of one, who has not performed his contract, against the vendor, and a subsequent purchaser, for a valuable consideration, without notice, who has complied with his contract 1 I think not. Besides, what decree could be made against the second purchaser ? None. In such a case, the only remedy of the complainant, if he is intitled to any, is in a suit at law, to recover damages from his vendor, for the nonperformance of his contract. He has certainly no such equity as would induce this Court to affect the land.</p> <p>It is, therefore, ordered, and decreed, that the complainant’s bill be dismissed, with costs.</p> <p>From this decree, the complainant appealed, and now moved that the same might be reversed.</p>

<p>At Charleston, April, 1829.</p>

This was a bill by the executor of a deceased copartner against his surviving copartner, for an account of the copartnership property. After the cause was at issue, and docketed for hearing, the defendant moved, before De Saussure, Chancellor, at Charleston, in January, 1827, for leave to amend his answer, by setting forth a stated account, and praying the benefit thereof, and of the statute of limitations, in the same manner, as if the same had been spec*a^y pleaded.

<p>A factor, to whom his principal is indebted upon several demands, may apply the proceeds of the crops of his principal, sold by him, to the payment of whichever of his demands he prefers, if the principal, himself, has given no direction as to their application. And where the principal was indebted to his factor by judgment, and also by mortgage, for distinct debts, held, that the factor was intitled toretain the proceeds of the crops in his hands, without making any application, until it could be ascertained by a sale of the mortgaged property, whether it would be sufficient to pay the mortgage debt; and if it were not, that he might then apply the proceeds of the crops to the unpaid balance of the mortgage debt, and the residue to the judgment: and that the right of the factor to make such application was not affected by an intermediate assignment by the principal, of his whole estate, for the benefit of his creditors, vide Heilbron v. Bissell, and Warner, post.</p>

<p>Heard by De Saussure, Chancellor, at Charleston, January, 1830.</p> <p>This was a bill to subject the steam boat Macon to the payment of a debt, due to the complainant by one of the defendants, by virtue of an alleged lien by mortgage.</p> <p>' The defendants, Magson, and Lubbock, were joint owners of the steam boat Macon, "which they mortgaged to the complainant, Magwood, to indemnify him against his indorsement of certain notes amounting to $7,500. Before this mortgage was satisfied, the defendant, Lubbock, purchased from a mercantile house, with which the complainant was connected, 500 sacks of salt, amounting to $1,012.50, for payment of which he gave his note indorsed by the complainant. The bill charged, that the complainant in. dorsed this note at the request of both Magson, and Lubbock, who stated that the salt was bought on account of the boat, it being difficult to obtain freight for her ; and that both of the said defendants expressly agreed, that the mortgage, previously given, should stand as a security, to indemnify the complainant against this note also. Some time afterwards, the notes for $7,500, for which the mortgage was originally given, were taken up by Magson and Lub. bock, who soon afterwards sold the boat to their co-defendant, M’Gregor, for her full value. The note for $1,012.50, was not paid, and the complainant was compelled to take it up; and Lub. bock being unable to pay, he applied to Magson, and to M’Gregor, who both denied, that either they, or the boat, were liable for the debt. The bill charged, that the defendant M’Gregor knew, at the time of his purchase, that the boat was pledged for the note of $1,012.50, and that it was not paid ; and prayed that he and the other defendants might answer the bill, and that they might be compelled to pay the debt, or that the steam boat Macon should be sold for payment.</p> <p>The defendants, Magson, and Lubbock, answered separately, but both denied, that the salt was purchased on account of the boat, or that they had agreed, that the boat should be mortgaged for pay. ment of the note. The defendant, Magson, admitted that he applied to purchase the salt, but alleged that it was for his own ac. count; and as cash was required, which it was not convenient for him to advance, he was under the necessity of abandoning the purchase ; and always supposed, that it was well understood between the complainant and Lubbock, that the purchase by the latter was bn his own account, as in fact it was. The defendant, Lubbock, ‘alleged that the salt was purchased by him for his own account, ánd that the complainant agreed to indorse his note to enable him to make the purchase, upon his promise to remit the proceeds from Augusta, as soon as the salt was sold there ; a promise, which this defendant was disabled from fulfilling by the urgency of other creditors.</p> <p>The defendant, M’Gregor, denied, if, in fact, there was any mortgage, or lien of any sort, on the boat, for the note of $1,012.50, that he, the defendant, had the slightest notice of it. He admitted, that he knew of the mortgage for the notes for $7,500, and had insisted that those notes should be taken up before he purchased ; but he knew of no other lien, or he would not have purchased, un- , til it was removed He claimed to be protected as a purchaser for valuable consideration, without notice.</p> <p>At the hearing, Mr. Charles Magwood, one of the mercantile house from whom the salt was purchased, and a son of the complainant, was examined as a witness. He testified, that Magson first applied for the purchase of the salt, but as cash was required, he did not make the purchase: that Lubbock applied subsequently, on the same day, and on being refused credit, said that the salt was wanted for the boat, as freight could not be procured ; and that if complainant’s father would indorse a note, the mortgage which he then held might stand as a security for this note also. Witness referred him to his father, but was not present, when the agreement between them was made. The bill for the salt was made out in the name of Lubbock, who was also the maker of the note. After the return of the boat from Augusta, Magson said, in presence of the witness, that Lubbock had acted shamefully in not remitting the proceeds of the salt from Augusta, but that the boat was liable.</p> <p>It was admitted, that at the time of the transaction, the defendant, M’Gregor, was employed by Magson, and Lubbock, in business appertaining to the boat, and had the means of knowing all the business transactions done in relation to her management.</p> <p>The Chancellor was of opinion, that the evidence was not suffi. cient to outweigh the effect of the answers ; and that these, if true, destroyed the complainant’s title to relief. Bill dismissed with costs.</p> <p>The complainant appealed, and now moved to reverse the Chancellor’s decree.</p> <p>There can be no doubt, but that where a mortgage creditor makes further advances to his debtor, they will be covered by the mortgage, upon any sort of proof that they were made upon that security ; and this although the mortgage be in itself equitable merely, as upon a deposit of title deeds. Ex parte, Langston, 17 Ves. 227. But the cases go much further where there is a legal lien ; and it has again and again been held, that future advances will be protected by the lien, without proof of an express agreement. Demainbray v. Metcalfe, Prec. Ch. 419. 2 Vern. 691, 698. S. C. Anonymous, lb. 177. Ex parte, Deeze, 1 Atk. 299. Ex parte, Ockenden, lb. 236; Hendricks v. Robinson, 2 Johns. C; R. 283. Chirras v. Craig, 7 Cranch, 34. The doctrine is in the highest degree reasonable. If the creditor has required, and the debtor has given, a security for the first advances, much more is it to be supposed, that it would be required, and given, when additional advances are made; and, therefore, it may always be properly inferred, that, when a mortgage creditor makes such advances, he does so upon the security of the mortgage. The rule is just and equitable, and as a bona fide purchaser for valuable consideration, without notice, can never be affected, no one can be injured but those who are participators, or abettors of fraud. Equitable liens are favored by the Court. At first some objection was made to them ; but the objections have worn away, and the doctrine is now in favor. This may be seen by all the cases, and our own Courts have gone in the same direction. Tunno v. Bethune, 2 Desaus. 285. Read v. Gaillard, lb. 552. Menude v. Delaire, lb. 564. Executor of Polony v. Keenan, 3 Desaus. 74. Caborne v. Godfrey, lb. 534. Coleman v. Shelton, 2 M’C. Ch. 126. And see the English cases collected in a note to 2 Desaus. 509, 518.</p> <p>There could be no doubt then, but that the complainant would have a lien on the Macon, for the note of $1,012.50, if Lubbock had been the sole owner; and there can be as little doubt, that the complainant is intitled to his lien, if either the salt was bought for the boat, or Magson assented to the mortgage. In the former case, Lubbock as part owner, and having charge of the boat, was competent to mortgage her for what was bought on account of the owners ; and in the latter case, Magson’s assent would render Lubbock his agent. Now it is true, that both of these facts are expressly denied by the answers of the defendants ; but it is equally true, that both are distinctly proved by the testimony of Mr. Charles Mag-wood. It is said, however, that the testimony of one witness is not sufficient to outweigh the answers of the two defendants. Certainly an answer is not to be contradicted by the oath of a single witness ; but the oath of a single witness is sufficient, if it is corroborated by circumstances, 2 Mad. Ch. 443, Biddulph v. St. John, 2 Schr. & Lefr. 532: and it is quite immaterial, how many defendants, one, or a dozen, there are to be contradicted. The circumstances of this case are conclusive of the correctness of Mr. Mag-wood’s testimony. Magson admits that he wished to purchase the salt, himself, and that he offered to do so; but like Lubbock, it was for his own account. The proof, however, was abundant to shew, that the salt was wanted for the boat, because freight could not be procured ; and neither Lubbock, nor Magson, wanted the salt, except for the boat. Is it credible, that one joint owner should undertake a speculation, merely to benefit the joint concern, and not even invite the other joint owner to bear his share of the burden ? Is it no(; utterly incredible, that both should intend the same thing, and set about carrying it into effect, going to the same place to make the purchase, on the same day, and not happen, even by accident, to meet, and explain their views, and unite in the enterprize 1 What credit then can be given to the answers of the defendants, under these circumstances, when directly contradicted by the testimony of Mr. Charles Magwood.</p> <p>As to M’Gregor, it was proved, that he was a sort of clerk to the boat, and must have been cognizant of the whole transaction. His answer is not intitled to the slightest credit; and indeed, it is palpable, that his purchase was made with the view to defeat the lien of the complainant.</p>

<p>A covenant by a wife, prior to, and in consideration of the marriage, not to claim, or demand dower, or any other right, title, or interest, in the real estate of her husband, cannot operate as an estoppel against her at law; nor will it bar her of dower under the st. 27 Hen. 8, c. 10, s. 6, without a competent jointure : but. if she were of full age at the time, such an agreement will be enforced in equity, and the wife excluded both from dower, and a distributive share of her husband’s real estate, where he has died intestate ; although, it seems, she will still be intitled to her distributive share of the personal estate, under the act of 1791.</p> <p>Nothing less than a freehold estate, to commence.in possession at the death of the husband, and settled on the wife by way of jointure, will bar her of dower under the provisions of the st. 27 Hen. 8, c. 10, s. 6. vide P. L. 51.</p>

Before Johnston, Chancellor, at Charleston, January, 1831. This was a bill by a creditor of the defendant, William B. Legare, to avoid a settlement made by him upon his wife, and to subject the property settled to the payment of complainant’s demand. The husband, and the trustees under the settlement, were the only parties defendants; and they demurred on the ground, that the wife ought to have been made a party.

<p>Under the act of 1787, which provides, that when a testator directs a sale of his lands for payment of debts, or for distribution of the proceeds among legatees, but does not direct by whom the sale shall be made, it shall be made by the executors; and that if the executors die, or renounce, the administrator, with the will annexed, shall be authorized to sell; an administrator with the will annexed possesses the power to ■ sell and convey lands, which the testator has directed to be sold, by Ms executor, for payment of his debts, unless the will has expressly provided, that the sale shall be made by no other person than the executor himself, mde P. L. 423.</p> <p>A remedial statute is to be construed liberally.</p>

Before Johnston, Chancellor, at Charleston, January, 1831. This was a petition by a trustee to be permitted to surrender his trust to a substitute.

<p>The testator, after certain specific, and pecuniary legacies, devised his whole estate, real and personal, “after the payment of all his debts and legaciesbut the will was not duly executed to pass the real estate, which descended to the heir at law: held, that the descended real estate was liable to debts, in exoneration of the specific legacies, but that the residuary personal estate was liable before the real estate so descended.</p> <p>Descended real estate is applicable to the payment of debts before personal estate specifically bequeathed ; and even a bequest of the testator’s whole personal estate, or of the residue, after specific legacies out of it, must, for this purpose, be regarded as specific in this State. But if the bequest be of the residue, merely, this must mean afterpayment of the debts ; and still more so, if the testator bequeath his personal estate, expressly “ after payment of debts:” and in both cases, the personal estate, so bequeathed, will be liable to the payment of debts, before real estate descended.</p> <p>The st. 5 Geo. 2, c. 7, which has rendered lands liable to the payment of . debts of every description, and our own statute of distributions, by which the character of the heir at law, as it is understood in England, has been entirely altered, havo, to a considerable extent, rendered the English rules for the administration of assets inapplicable in this State. The personal estate may still be regarded as the fund primarily applicable to the payment of debts; but lands devised for, or charged with, the payment of debts, will be liable in exoneration of the personal estate : and descended real estate will be liable before personal estate which has been bequeathed in terms, that do not either expressly, or, impliedly, shew it to have been the intention of the testator, that it should be applicable to his debts, even in cases, where the bequest would not, in England, be regarded as specific; as where the testator gives his whole personal estate, or the residue after specific legacies out of it. The following suggested, as the order in which assets are to be administered in this State. First, real, or personal estate, devised for the payment of debts, or, in any manner, directed to be so applied. Second, personal estate not specifically bequeathed; but a bequest of the testator’s whole personal estate, or of the residue, after payment of specific legacies out of'it, to be regarded as specific. Third, descended real estate. Fourth, personal estate specifically bequeathed. And lastly, real estate devised.</p> <p>If a will, devising both real and personal estate, be not duly executed to pass real estate, it must be read as if-the real estate were not mentioned in it; and no condition, or equity, can be implied, against the heir, from the ineffectual devise of the real estate.*</p> <p>The modern rule, as between the tenant for life and the remainderman, in relation to the debts of the estate, is, that the tenant for life must keep down the interest: and, if the debts are to be paid, so much of the estate must be sold, as is necessary to pay the debts ; or if it be not divisible, the whole must be sold, and the surplus, afterpayment of the debts, be invested.</p> <p>The executor is not liable to the legatee for the loss on sales, of the property bequeathed, made by the sheriff, at prices below its value, where the sale was not made by the will, or caprice, of the executor, but at the instance of creditors, under executions for debts of the testator, and was fairly conducted. And if he were liable, it is a question of damages, and the remedy is at law.</p> <p>Where a testator, or intestate, dies after the first day of March, in any year, the crops growing on his lands are assets for the payment of debts, in ease of the personal estate bequeathed, although the latter is liable to the debts before the land itself, vide act of 1789, sec. 23, P. L. 494.</p> <p>Act of 1789, mc.83, p.l.</p> <p>1 Brev. Rep. 389.</p>

<p>A purchaser of personal property holds adversely to a prior mortgagee, at least from the time of the condition broken; and he will be protected by the statute of limitations, although he have notice of the mortgage. The rule in this respect differs in relation to real, and personal property, from the difference in the effect, of a mortgage of the one species of property, and the other, upon the legal estate of the mortgagor, vide Thayer v. Cramer, 1 M’C. Ch. 395.</p> <p>Recording is notice of a mortgage of personal, as well as of real property, in all cases where the mortgage is required by law to be recorded ; but such notice only defeats the plea of purchase for valuable consideration without notice, and will not, in the case of personal property, deprive a purchaser of the benefit of the statute of limitations.</p> <p>The operation of the statute of limitations in the case of a purchaser, with, or without notice, from a trustee, or mortgagor, as against the cestuy que trust, or mortgagee, and the effect of recording as notice, in reference to real, orpersonal property, examined, and discussed; and the case of Thayer v. Cramer, 1 M’C. Ch. 395, questioned ; by Harper, Ch. sed vide Smith and Cuttino v. Osborne, 1 Hill’s Ch. 340.</p>

<p>Before Johnston, Chancellor, at Charleston, January, 1831.</p> <p>The complainant, Thomas W. Giles, was one of two children of the intestate, Matilda Giles, and assigned his interest in her estate to her administrator, the defendant, Robert F. Giles, in trust, in the first place, to pay the debts of the said Thomas W. Giles, and then to hold the residue subject to certain other trusts. The assignment was accepted by the defendant; and the bill in the first of these cases was filed to compel a performance of the trusts. The bill in the second' case was by a creditor of Thomas W. Giles, for the same purpose', and for an account.</p> <p>The defendant in his answers, admitted the. assignment, and that Thomas W. Giles was intitled to a moiety of his intestate’s estate ; but alleged that the estate was not ready for distribution, there being several large outstanding demands upon it to be settled : and at the present term, he moved for leave to file supplemental, or amended answers, for the purpose of stating in them, that in prosecuting the claims of his intestate to certain property in England, the defendant had learned, that the said Thomas W. Giles, was an illegitímate child of the intestate, not having been born until several years after the death of his supposed father; and that the defendant had, on inquiry, ascertained, by indisputable evidence, that the information was true. And it was submitted, therefore, that the said Thomas W. Giles could not share, in the estate of the intestate, with the defendant, who was her legitimate child ; and that the defendant ought to be permitted to state the facts, and set up this defence, by supplemental, or amended answers to the bills.</p> <p>The Chancellor refused to grant leave, and the defendant now moved to reverse his decision.</p>

This was a bill for an account, and was heard at Charleston, in May, 1830, by Harper, Chancellor, from whose decree the case will be fully… Held: that although the party making payments may appropriate them as he pleases, or the appropriation may be inferred from circumstances, yet if he fails-to do so, the creditor may appropriate afterwards. The same doctrine is recognized in Newmarch v. Clay, 14 East, 239; and in Kirby v. the Duke of Marlborough, 2 Maulé & Selw. 18.

Heard by De Saussure, Chancellor, at Charleston, May, 1829. Held: that the State may take private property for public purposes, without compensation; and a fortori, if compensation is allowed, the State may adopt any mode of assessing it.- If the Act of 1817 is constitutional, then the decision of the umpire, which has been made in conformity to the provisions of of the act, is conclusive ; and…

<p>A voluntary conveyance will not be protected by the statute of limitations' against creditors of the donor, if the fact, that such conveyance had been made, was unknown to the creditors until within the statutory period before the bill was filed to set it aside, and the donor remained all the time, ostensibly, in possession.</p> <p>Although a bill praying relief against fraud must, in order to avoid the effect of the statute of limitations, allege that the fraud was not discovered until within the statutory period before suit .brought, yet it will be sufficient if the allegation is substantially, although not clearly, or formally made; and even if it is not made at all, yet, if it appear at the hearing, that the discovery was not made until within the statutory period, it seems that leave will be given to amend for the purpose of making it.</p>

<p>To excuse an executor from the payment of interest on the annual balances in his hands, it must appear, not only that there were debts due by the estate, but that he retained the funds in his hands to meet them. If he used the money as his own, he is liable for interest. The rule, which allows an executor to retain funds for the purpose of meeting debts, does not mean a hypothetical retaining.</p> <p>Where an executor has not returned an account of the crops of the estate, but is charged with a specific sum for the rent of the lands, and the hire of the slaves, he is not intitled to six months to invest the fund, but is liable for interest from the end of the year.</p> <p>The accruing interest on the annual balance in the hands of an executor is to be set off against his disbursements in each year; and if the disbursements equal, or exceed, the annual interest, the balance remaining, after deducting the aggregate of principal and interest, is principal, on which he is chargeable with interest for the succeeding year.</p> <p>An executor, who has been in possession of the estate, under a will, the probate of which was subsequently set aside, is not intitled, on a bill against him by the administrator of the deceased for an account of the estate, to an allowance for fees paid to counsel for defending the will, nor even to the usual fee to his solicitor in the suit for an account.</p>

<p>An agreement in writing, but not under seal, to give bond, secured by mortgage, for the purchase money of land, will not intitle the vendor to be paid as a bond creditor, where the purchaser has died insolvent, before giving bond pursuant to the agreement; although the vendor is intitled to a specific lien on the land itself.</p> <p>Equity relieves when, through mistake, an instrument is not what it was intended to be; but will not aid a security, by giving to it an effect not intended by the parties, when it was entered into: and although there are cases, in which an agreement for a specific lien will he enforced, there is no case, where, in the administration of assets, the Court has carried into effect an agreement to confess a judgment, or to give a bond, or other general security, to the prejudice of other creditors.</p> <p>Where the allegations of the hill are denied by the answer, a single witness is not sufficient to establish them, unless strongly supported by circumstances.</p> <p>3? L 454</p>

<p>This was a bill for the execution of the trusts of a marriage settlement ; and was heard by Harper, Chancellor, at Charleston, May, 1830.</p> <p>The complainant was the daughter of John Holland, deceased, and intitled, under his will, to a distributive portion of his estate; an<^ °n ^ermarr‘aS3 with Janies Miller, her interest in her father’s estate was conveyed to the delondant, Newman Kershaw, as trustee, for the uses of the marriage settlement: but the settlement was not recorded, as required by the marriage settlement acts. Subsequently to the marriage, partition was made of the estate of the testator, and a leasehold interest in a house and lot was, amongst cither things, allotted to the complainant. This house and lot was afterwards assigned by the husband, Miller, to the defendant, Kershaw, for payment of his debts ; and Kershaw, who was executor of testator’s will, as well as trustee under the settlement, sold and conveyed the lot, for a valuable consideration, to the defendant, John Connor. About the time when the bill in this case was filed, Connor assigned his estate for the benefit of his creditors; and the assignees sold and conveyed the house and lot abovementioned to James Calder, who paid the value for it.</p> <p>Calder was not made a party to the suit, but applied, at the hearing,-for-leave to shew cause against the complainant’s demand. This was refused, on the ground, that he was not a. party; and his Honor refused to direct that he should be made a party, as it was understood that he had purchased subsequent to the commencement of the suit.</p> <p>Connor did not enter an appearance, and made no defence to the suit; and the bill had been taken pro confesso against him. At the hearing no evidence was adduced, that Connor had notice of the settlement at the time of his purchase ; and it was insisted, on behalf of Calder, that without such evidence, the complainnnt was not intitled to a decree against Connor. His Honor-held, however, that Connor was bound to have pleaded, that he was a purchaser for valuable consideration, without notice, if that defence was to be relied on. Decree against both defendants.</p> <p>The defendant, Connor, appealed on behalf of Calder, and now moved, that as to him the decree might, be reversed, or vacated, and the cause remanded.</p>

This was a bill for an account of the value of certain lands of the complainant, which had been sold by the defendant, Gibbes, as master of the Court of Equily, under an order made upon the appli■cation of the defendant, Patterson, the complainant being at that time an infant.

This was a bill for an account of the estate of defendant’s testator, Guillaume Lafont, late of Beaufort, deceased, who devised his whole estate to his sisters Marguerite, Marie, and Elizabeth, “ but should either of them be dead, then to the survivors, or survivor of them, and to their, or her heirs foreverand if all his said sisters died before him, the testator bequeathed his estate to his executor.

This was a petition for the appointment of a trustee, and was heard at Charleston, in January, 1830, by De Saussure, Chancellor, from whose decree the questions made will be sufficiently understood.

<p>The notion of mistake, such as intitles a party to relief from his contract, seems to involve the having been misled by false appearances, and does not include an erroneous impression spontaneously taken up, not from any deceptive evidence, but merely from the suggestion of the party’s own mind. Per Harper, J., obiter, but concurred in by the Court.</p> <p>A debtor, who has assigned his estate for the benefit of his creditors, is a competent witness in a suit between his assignee, and one of the creditors claiming a special lien on a part of the estate; his interest being equal either way.</p> <p>The declarations of the deceased clerk of a wharfinger are not admissible to explain an entry made by him in his principal’s wharf books, . for the purpose of defeating a vested title to property, not in the actual possession of the wharfinger at the time when the declarations were made; nor would such declarations be admissible in any case, as evidence of title in a third person, although they establish a liability on the part of the clerk, through his principal, if by establishing the title, the liability is discharged.</p> <p>To render an entry, or declaration, admissible in -evidence, it must appear, first, to have been made without any interest to falsify the fact; second, in cases other than those depending upon hearsay, such as pedigree, custom, boundary, and, perhaps, prescription,- that it was made against the interest of the party in the subject matter of the entry, or declaration; and third, that the entry, or declaration, itself, unless where it is made by a tenant in possession, is so ancient, as to preclude all suspicion, that it was manufactured for the occasion. And the cases, in which entries, or declarations, are generally admissible, are those, in which they are offered, first, to aid, or to repel, a legal presumption from lapse of time; second, to give character to an ancient possession, or to make out an ancient title; third, to corroborate, or repel, a conclusion, arising from other testimony, as to a long past event, or fact; and fourth, to give character to an actual, recent possession, and thereby shew a right of property in a third person.</p> <p>W., having 329 bales of cotton at the wharf of L., on the 7th June, as it was alleged, transferred them, verbally, to M., as a security for moneys advanced. Subsequent to that date, and prior to, or on, the20th June, W. was permitted by L. to remove 108 of the bales, and to send them abroad, leaving in the stores of L. 221. bales of the original parcel, and also 102 bales of a second parcel; and after the 20th June, an entry, dated 7th June, was made in L’s. wharf books, by his clerk, transferring the original 329 bales to M. W. subsequently assigned his whole estate for the benefit of his creditors; after which M. suednut a writ of foreign attachment against L., in an action of trover to recover the value of the 108 bales, delivered to W., after the alleged verbal transfer to M.: and the attachment was levied on the 102 bales of the second parcel remaining in the stores of L. The assignee of W. having interposed a claim to the 102 bales, a written agreement was entered into by him, and M., that the cotton should be sold, and the proceeds invested, “ to abide the decision of the cause, and any future order to be made thereon.” In the action of trover M. recovered against L., the value of the 108 bales delivered to W.; but no issue was made up directly to try the title to the 102 bales levied on under the attachment. On a bill of interpleader to determine the respective titles of M., and the assignee of W., to the proceeds of the 102 bales, held, that the judgment in trover ascertaining L’s. liability to M. for the value of the 108 bales, did not necessarily establish M’s. title to the 102 bales; and that as there was no evidence, that any transfer was, in fact, made to M., until after the 20th June, when the 108 bales had been delivered to W., so that the transfer could not operate on them, there was no ground for the presumption, that the 102 bales had been substituted for the 108 bales, and the assignee of W. was consequently intitled under the assignment: but leave granted toM'., to apply for an issue at law, to establish an earlier transfer, or a substitution prior to the assignment.</p>

<p>To constitute usury, there must be a corrupt, and wilful intent to violate the statute fixing the legal rate of interest; and where, upon a loan, it was stipulated, that the borrower, in addition to tire legal interest, should pay all taxes, and assessments, which might be imposed by the State, or the City of Charleston, on the principal, or interest, of the debt, although the contract might be regarded as, in itself, usurious, yet as doubts had been entertained as to its being so, and it was in evidence, that the parties had taken the advice of counsel, before entering into the contract, and had therefore manifestly acted, without a corrupt, and wilful intent to violate the statute, but under a mistake, of law, held, that the lender was intitled to be relieved against the consequences of the stipulation.</p> <p>vide Act of 286^-’aedvide ^°27.of 1830’</p>

<p>Heard by De Saussure, Chancellor, at Charleston, January, 1830.</p> <p>This was a bill by Susan M. Wheeler, the widow, and administratrix, of William Wheeler, deceased, to injoin the removal of certain slaves, in possession of the defendant, John T. Vansse, who had seized them as agent of the defendant, Edward Meray, and was about carrying them from the State. The bill charged, that the slaves were claimed by the defendants, under an instrument executed by her intestate, in the form of a deed, hut testamentary in its terms, by which the intestate “gave and bequeathed” the slaves in question to the defendant, Sarah A. Meray, formerly Sarah A. Evans, a young woman, with whom, at the date of the instrument, and at the time of his death, he lived in adultery. The gift was to her for life, remainder to her issue; and her only child, the infant defendant, was made a party to the suit. The bill prayed an injunction, and that the gift might he set aside, and the slaves delivered up to the complainant; or that an account might he taken of the estate of the donor, and the gift reduced conformably to the provisions of the Act of 1795, 2 Faust, 76. An injunction was granted on the filing of the bill, pursuant to the prayer therefor.</p> <p>The merits of the cause were not decided until a subsequent appeal, which, with the facts necessary to a full understanding of the points decided, is reported in 2 PlilPs Ch. 222. The chief question made at the present hearing, was as to the jurisdiction. It was contended, for the defendants, that the complainant had ample remedy at law; and had, in fact commenced an action of trover, in which the defendant, Vausse, had been held to hail, which action had been discontinued.</p> <p>His Honor decided in favor of the jurisdiction, and ordered a reference to the commissioner to ascertain the value of the estate of the intestate, at the time of the gift. The defendants appealed, and now moved to reverse the decree ordering a reference, and that the injunction might be dissolved, and the bill dismissed with costs.</p>

At Charleston, May, 1830. Harper, Ch. The original bill in this case was filed by Jacob N. Lord against David Sealy, charging that about fifteen, or sixteen years before the filing of the bill, complainant and defendant purchased jointly a plantation called Widehall, the purchase money of which was paid equally by each party; and that by an agreement executed between themj they were to share equally all profits arising from the plantation: that complainant contributed his…

At Charleston, January, 1831. In the year 1822, Edward Lynah made a voluntary assignment of ,his effects for the benefit of his creditors, of whom Thomas Cochran was amongst those who were preferred; and he was the oldest judgment creditor. In 1825, Edward Lynah, having been arrested at the suit of a creditor, took the benefit of the insolvent debtors act, and Thomas Cochran, Stephen Elliot, and Charles B. Cochran, were appointed his assignees.

<p>The testator devised his real and personal estate in Charleston to his wife for life, with a special charge for the preservation thereof; but empowered her to make some provision, or portion, to their adopted daughter: and directed his executors, immediately after the death of his wife, to sell all his said estate, and to transmit the proceeds to his relatives in France, to whom- he bequeathed the same. And by a subsequent clause in his will, he declared his intention to make no disposition of his rights, or claims, to the property of his wife. By a codicil, subsequently executed in France, he bequeathed to the daughter a legacy of the value of $600, as a small portion; and directed it to be paid out of his estate in France. After his death, the wife, by an agreement with' his relatives in France, contracted, amongst other things, to exercise no rights over the property out of France, other than such as are conferred by the will. The testator left property in Charleston of the value of $50,000. Held, that the power was intended to operate on the testator’s own estate; that it was not revoked by the bequest in the codicil; nor impaired by the agreement entered into by the wife in France; and that it was well executed by a devise to the daughter of about two-thirds of the property in Charleston.</p> <p>The intention of the testator, whenever it can be legally ascertained, is to govern the construction of his will; and the whole must, if possible, be construed together, so that all its parts may have éffect.</p> <p>In determining the extent of a power, the intention of the parties in its creation must constitute the guide.</p> <p>In the execution of a general power, there can be no rule but the discretion of the party to whom it is confided; and where a power of appointment is to be exercised according to tire discretion of the person, to whom it is committed, no appointment, however unjust, or unreasonable it may seem, can be regarded as excessive by the Courts.</p> <p>The doctrine of the English Courts, in relation to illusory appointments, which has been carried to a most unwarrantable length, and is reprobated by the wisest judges, applies only to powers of distribution, where there is an obligation to give something to each of several objects of the power; and even if the doctrine were adopted by our Courts, it is not to he extended to other discretionary powers of appointment, so as to render the execution of them void on the ground that it is excessive.</p> <p>Tenant for life in possession, under a will, of real estate, hank stock, and other securities, having made an appointment of them, by virtue of a power contained in the will, the legal title vests immediately in the appointee,; and the executors of tire original testator have no authority to collect the rents, dividends, and interest, and therefore no right to commissions for receiving, and paying, if they do so.</p> <p>Dividends, and interest of bank stock, and other securities, which, had accrued, partially, during the continuance of a life estate, ordered to be apportioned between the executors of the tenant for life, and the persons intitled in remainder.</p>

Heard by De Saussure, Chancellor, at Coosawhatchie, Jattuary, 1835. j This was a bill for an injunction, and to quiet the title of… Held: and claimed, by virtue of his marital rights, and had sold some of them, and got credit on his possession of the rest: that when the sheriff was proceeding to sell said slaves, Mr. Isaac B. Ulmer, the guardian of the minor, Elizabeth Talbird, and agent of Sarah Henry, interposed a claim on their behalf, whereupon an agreement was…