The opinion of the court was delivered by
Mr. Justice McGowan.
On May 27, 1877, John M. DeSaussure, sr., Louisa D. Davis, John M. DeSaussure, jr., Sallie D. Davis, Eliza C. DeSaussure, and Lloyd C. DeSaussure, in order to secure their bond for $1,516.65, besides interest, executed and delivered to one George Alden a moi’tgage of lands thus described: “All that piece or parcel of land situate in the county of Sumter, in said state, containing 2,351 acres, be the same more or less, bounded northwest and north by lands of James M. Davis, northeast and east by the public highway to Stateburg, south by lands of James M. Davis, west by the Wateree River, being lands devised by will of Richard L. Champion to his grandchildren, parties of the first part, and part purchased by the executors for the use of his will,”' &c. The bond and mortgage were assigned to Tobias Kerngood, who instituted these proceedings to foreclose the mortgage on the premises aforesaid.
It was discovered that there were other creditors of the mortgagors, devisees under the will aforesaid, who claimed to have older and superior liens upon the said lands, and such claimants were made parties defendant, as follows:
.First, William D. Trantham, as administrator of John M. DeSaussure, sr., claimed a judgment, M. B. Villipigue v. John M. DeSaussure, jr., entered in Kershaw county, October 10, 1867, for $1,180, besides interest and .costs, and in Sumter county, November 30, 1867, and levy made by the sheriff of Sumter on the interest of the defendant in the said premises; which judgment was assigned to John M. DeSaussure, sr., February 22,1868.
Second, the claim of Ellen Stuart. Eliza C. DeSaussure, A. B. DeSaussure, and J. M. Davis, executed a bond to Ellen Stuart for $500, due January 1, 1875, secured by mortgage July 13, 1874, executed by Eliza C. DeSaussure, of all her interest, (said to be one-fifth) in the said Champion lands.
[196]*196Third, the Clyburn claim. M. L. Davis, S. A. Davis, John M. DeSaussure, jr., E. C. DeSaussure, and L. O. DeSaussure gave bond to M. D. McDowell, receiver of the Workman estate, June 1, 1876, for $3,500, secured by mortgage of same date, on the aforesaid' premises, being the same devised to. them by the will of their grandfather, Richard L. Champion.
' Fourth, the Simonds claim. J. M. Davis, L. D. Davis, L. C. DeSaussure, Eliza C. DeSaussure, and A. B. DeSaussure gave bond to Louis D. DeSaussure April 25, 1876, for $2,086.24, with interest, &e., secured by mortgage of same date, executed by Eliza C. DeSaussure, Louisa D. Davis, and Lloyd C. DeSaussure, of all their interest in the said premises. This bond has been assigned to Andrew Simonds.
Fifth, the claim of Mrs. Sarah E. DeSaussure, under letters patent conveying to her - as lands forfeited to the state for nonpayment of taxes, the Champion lands in Sumter county. As appears by the decree, this claim was adjusted at the hearing below, the claim ' being abandoned, and the amount of purchase money paid by Mrs. DeSaussure and the interest thereon to be refunded to her out of the proceeds of sale.
Sixth, the Kerngood claim. This is the claim for $1,516.65 secured by mortgage of the same premises first stated, upon which claim these proceedings were instituted. The mortgage bears date May 27, 1877, includes a warranty of the premises mortgaged, and was signed also by John M. DeSaussure, sr.
Seventh, the claim of Witte Brothers. This consists of the aggregate balances of sundry judgments originally obtained by James D. Matheson, James D. Kirkpatrick, administrator, Priscilla B. Perkins, executrix, and Mary E. Shaw, administratrix, against the executrix of Henry W. DeSaussure, deceased, who was one of the grandchildren of R. L. Champion aforesaid; which balances by assignments have become the property of Witte Bros. By a family arrangement in regard to the aforesaid Champion lands, among the devisees thereof (which will be more particularly referred to hereafter), these judgments were cancelled as against the estate of Henry W. DeSaussure, deceased, and the payment of any balances thereon, was assumed by the five living grandchildren of the said Champion, the [197]*197obligors in the Kerngood mortgage, Louisa D. Davis, Sallie D. Davis, John M. DeSaussure, jr., Eliza C. DeSaussure, and Lloyd C. DeSaussure. This undertaking was embodied in a consent decree in Kershaw county of date November 12, 1870, but said decree for said balances could not be enrolled at the time, but lately the said balances still unpaid were ascertained and judgments rendered thereon in Kershaw county, February 15, 1882, and transcripts of said judgments entered in the office of the clerk for Sumter county, March 6, 1883; which would give Witte Bros, the last lien upon the said Champion lands.
But they claim that the original arrangement embodied in the consent decree of November 12, 1870, gave them a lien from that date on said Champion lands, at least to the extent of the interest of the children of H. W. DeSaussure, deceased, including .both the share proper of their father, Henry, and their interest in the portion of their deceased aunt, Caroline DeSaussure. There is no doubt that the interest of the said devisees in the Champion lands and all other property they may have, is liable for the Witte claim as a debt assumed by them; but it is earnestly denied that they gave any lien for its payment, or that any was involved in the aforesaid transaction, even as to the share of the children of H. W. DeSaussure, which they thereby acquired, so far as the lands now in controversy are concerned.
The issue simply as to priority is the principal question in the case, and we will now proceed to consider it. The facts are somewhat complicated, and in order to make them intelligible, we will go back a little. Richard Lloyd Champion, late of Kershaw county, departed this life November 13, 1813, seized and possessed of a large estate, and leaving a will, of which Benjamin Bineham was the sole qualified executor. By the fourth clause, the testator devised and bequeathed as follows: “I will and bequeath unto my said friends, Duncan McRae,- Alexander Matheson, Abraham Blanding, and Benjamin Bineham, all the rest and residue of my estate both real and personal, to them, their heirs, executors, administrators, and assigns forever; in trust and confidence, and subject to the uses, limitations, and restrictions hereinafter mentioned and expressed; that is to say (after the payment of my debts), that they shall stand seized and [198]*198possessed of the same to and for the sole use, benefit, and behoof of my beloved daughter, Eliza Hester Champion, for and during the term of her natural life, and no longer, without being subject to the debts, contracts, or disposal of any person with whom she may at any time intermarry; and from and immediately after the death of my said daughter, Eliza Hester Champion, that then they, the said executors, &c., shall stand seized and possessed of the same in trust to and for the sole use, benefit, and behoof of the heirs of the body of my said daughter, who may be living at the time of her death, share and share alike,” with some ulterior limitations, &c.
The lands referred to in this case as the “Champion lands in Sumter county,” passed under and were devised by the said fourth clause of this will. The said Eliza Hester survived her father, married John M. DeSaussure, Esq., and died March 11, 1864, leaving her surviving, her said husband, and six children, viz., Mary Louisa (who married James M. Davis), John M. DeSaussure, jr., Eliza C. DeSaussure, Sarah Amelia (who married Junius Davis), Lloyd C. DeSaussure, and Caroline E. DeSaussure (who departed this life August 12, 1864, intestate and unmarried), and four grandchildren, viz., George R. DeSaussure, John M. DeSaussure, Douglass B. DeSaussure, and Champion DeSaussure, children of Henry W. DeSaussure, then deceased. The Champion lands have never been divided among the devisees, except as to the interest therein of the children of the aforesaid predeceased son, Henry W. DeSaussure, in respect to which this contention has arisen.
Henry W. DeSaussure was the eldest child of the said Eliza Hester, and having married in her life-time, he was settled off partly by his father, John M. DeSaussure, out of his own means, but for the most part out of the property of the Champion estate. The plantation hereinafter known as the “upper plantation,” near Camden, in Kershaw county, was purchased and conveyed to him directly by the vendor, and was stocked by negro slaves. At the time he was thus provided, for, December 30, 1856, the property which went into his possession, lands and slaves, were described and valued, and he covenanted as follows: “I agree with my father and mother and as representing my brothers and [199]*199sisters, that if it be necessary to bring the said lands and negroes into common valuation and calculation on the death of my father or mother, or either of them, in order to equalize the shares of my brothers and sisters and myself in all or either of the estates of my father or mother, or in the estates devised by my grandfather, Richard L. Champion, to the children of my mother in remainder, I will bring the value of said lands and negroes into such common valuation and calculation, and will hold the said lands and negroes as my own and will account for their value,” &c.
Henry W. DeSaussure afterwards went into the Confederate army, and fell at Frazier’s farm, near Malvern Hill, in Virginia, on June 30, 1862, leaving a widow, Mary R. DeSaussure, and the four children above named. He left a will, of which his widow was sole executrix, but its provisions are unimportant in this case. The said Henry W. DeSaussure left debts, and the creditors, James D. Matheson, James D. Kirkpatrick, administrator, Priscilla B. Perkins, executrix, and Mary E. Shaw, administratrix, having sued the executrix, Mary R., recovered judgments respectively, and levied the “upper plantation” and all the other property of the testator; and James P. Boswell, the sheriff of Kershaw county, was about to sell the same, when, in December, 1869, the executrix, Mary R., for herself and her aforesaid children, filed a bill in Kershaw county, entitled "Mary R. DeSaussure et al., v. James P. Boswell et al.,” making the sheriff and creditors parties, as also the devisees under Champion’s will, and praying for injunction, to marshal the assets of the estate, for dower, and “for partition of the estate derived by the children of the said Eliza Hester DeSaussure, under the will of the said R. L. Champion, -with the accumulations thereof,” &c.
In this proceeding Judge Melton, on November 12, 1870, made a consent decree, the construction and legal effect of which are involved in this case. We cannot encumber this statement, already too long, by reciting it at length. It will be enough to say that it ordered certain property of the testator to be sold, appointed a receiver, gave the widow dower, and as to-the “upper plantation,” provided as follows: “1. It is ordered, adjudged, and decreed, that the ‘upper plantation’ of the late Henry W. DeSaussure, situate * * be assigned in severalty in fee simple to [200]*200the complainants, George R. DeSaussure, Douglass B. DeSaussure, John M. DeSaussure, and R. Champion DeSaussure, as tenants in common, to them and their heirs and assigns for ever, charged, nevertheless, with the payment to the defendant, Louis D. DeSaussure, of the amount of his 'claim (contracted by the executrix after the death of H. W. DeSaussure) * * * and the said ‘upper plantation’ above described shall be taken and deemed to be in full discharge and satisfaction of the portions, shares, and interests of the said children, -heirs and devisees of the said H. W. DeSaussure, deceased, in the estate of their said father, and in the estate of their grandmother,'Eliza Hester DeSaussure, deceased, and in the trust estate devised to them by the will of Richard L. Champion, or conveyed in 'trust to Benjamin Bineham, his executor, &c. * * *
“6. It is further ordered, that the said James M. Davis, receiver, as aforesaid, after applying the assets remaining in his-hands, necessary to make the payments to the said Mary R. DeSaussure, here before directed, do pay therefrom 'the costs of this suit, &e.,-and apply the balance of said assets, when collected, to the payment of the demands of the other creditors of the estate of the said Henry W. DeSaussure fro rata, to wit: the said James D. Matheson, James D. Kirkpatrick, Priscilla B. Perkins, and-Mary E. Shaw, and that the judgments at law upon the said claims be satisfied before the judgment creditors thereof receive any benefit from this decree. It is -further ordered, that the defendants, Mary .Louisa Davis, Eliza C. DeSaussure, John M. DeSaussure, jr., Sarah Amelia Davis, and Lloyd O. DeSaussure, do pay to the said creditors, respectively, whatever may-remain due to them on their said'claims after the application thereto of the proceeds of the said assets in the hands of the said James M. Davis, receiver as aforesaid, as hereinbefore directed, &c.
“7. It is further ordered that whenever the said Mary Louisa Davis, Eliza C. DeSaussure, Sarah Amelia Davis, and John M. DeSaussure, jr., the adult children of Eliza Hester DeSaussure, and remaindermen Avith Lloyd C. DeSaussure, under the will of their grandfather, the said R. -L. Champion, may deem it advisable to sell the lands and personalty passing under said ayíII, and also the lands conveyed in trust to Benjamin [201]*201Bineham, executor of the said R. L. Champion, as described in the bill, and shall enter into a contract for the sale of the same or any part thereof, that the said John M. DeSaussure, the father and guardian ad litem of the said minor defendant, Lloyd O. DeSaussure, be authorized and required to execute to the purchaser or purchasers thereof a deed of conveyance of the interest of the said Lloyd C. DeSaussure in the said lands and personal property, and that he receive and receipt for such portion of the purchase money as may belong to the said Lloyd C. DeSaussure, to wit: one-fifth portion thereof, and hold the same subject to the further orders of this court or until a general guardian for the said Lloyd O. DeSaussure shall be duly appointed,” &c.
As before stated, the balances of the judgments have lately been ascertained and confirmed by the court, and the question now is, whether Witte Bros., owners of these balances, having given up their liens upon the “upper plantation” and the other property of Henry’s estate and in lieu thereof taken the decree for the amount-against the aforesaid living children of Eliza Hester, must be regarded as holding them as simple debtors without security, or as having a lien from the date of the decree upon their property, at least to the extent of the share of Henry’s children, assigned to them by the same decree which required them to pay the debt. The Circuit judge held that the effect of the Circuit decree was to make them responsible simply as debtors for the balances which, after applying the assets of the estate, should finally be due upon the judgments; but gave no lien on the property of those adjudged to pay, not even on the share of Henry’s children, assigned to them by the decree. He also held that W. D. Trantham, as administrator of the estate of John M. DeSaussure, sr., who was one of those who executed the Kerngood mortgage containing a covenant of warranty of the premises embraced, was estopped from claiming any right to have the Yillipigue judgment against John M. DeSaussure, jrl, paid to the prejudice of the plaintiff, Kerngood, his mortgagee; and after providing for costs, fee of the referee, and the reimbursement of Mrs. Sarah C. DeSaussure for money paid at the forfeiture sale of the lands for taxes, fixed, in effect, the priorities of the parties as follows: 1. The claim of Ellen Stuart; 2, the claim of Clyburn, receiver; [202]*2023, the Simonds claim; 4, the Kerngood claim; 5, theTrantham claim on the Villipigue judgment; and 6, the claim of Witte Bros.
From this decree, Witte Bros, and W. D. Trantham, administrator, appeal to this court.- The exceptions are long, and need not be stated here, as they are in the brief.
First, as to the claim of Witte Bros. The judgments after-wards assigned to them had liens on all the property of Henry W., which the consent decree cancelled, and adjudged that the living brothers and sisters of Henry W. should pay “whatever may remain due to them (the creditors) on their claims after the application thereto of the proceeds of the assets in the hands of the receiver,” &c. Although this was a consent decree, it was a present judgment. It was not less a judgment of the court because it was in conformity to the wishes of the parties. The aggregate amount of the judgments was not stated in terms, but that was known when the judgments were marked satisfied, and it is not entirely clear that the decree could, not have been enrolled at that time, subject to be credited as successive payments were made by the receiver. If that had been done and execution issued and levied as required by the code, that would have given a lien upon all the interests in the Champion lands in Sumter or elsewhere.
We incline to think that such was the intention of the parties and of Judge Melton’s decree. The creditors had a lien upon the property of Henry W., which in all probability, without regard to the claim of the co-tenants for advancements and a money equalization, would have produced payment, as the legal title to the “upper plantation” had been made to Henry W. in his life-time. In order, however, to facilitate a judicious family arrangement, they yielded their lien, and in lieu thereof consented to take the judgment aforesaid against the substituted parties, and it is hardly to be supposed they would have done so without taking a new lien upon the new parties. But be that as it may, there was the difficulty that the aggregate amount was not stated in the decree, and it could not be then foreseen what the exact balance would be; and on that account, probably, the judgment was not enrolled or execution issued in Sumter county until March, 1883. So that, although there was a decree against [203]*203the substituted parties, it gave no lien upon their own proper shares in the lands until that time (March, 1883). In the meantime, the co-tenants aforesaid who were adjudged to pay the judgments had encumbered their own interests in the lands by the mortgages before mentioned, and the question now is whether the provisions of the consent decree vested in them such absolute title to the interest of Henry’s children as to pass it also under these intermediate incumbrances, although they had not paid the aforesaid balances, which at the time of the relinquishment of that interest they were ordered to pay.
Witte Bros, insist that the bill in the case of Mary R. DeSaussure et al. v. Boswell, Sheriff, et al., in Kershaw county, was, among other things, for partition among the tenants in common of the Champion estate; and that the interest of Henry’s children in the lands, being relinquished to the other co-tenants upon their paying the judgments aforesaid as the consideration of that relinquishment, the act of 1791 gave the creditors a lien on said interest so relinquished to secure said balances. To this it is objected that the bill was not for partition of intestate property, and that it was filed in Kershaw county, where there was really no property of any value belonging to the tenants in common ; but it all lay in Sumter county, and that for these reasons this is not a case for the application of the act of 1791. It is true that the same decree which made the relinquishment of the interest of Henry’s children also ordered those to whom the relinquishment was made to pay the judgments, in order to disencumber the “upper plantation” so as to allow it to be taken by Henry’s children in exchange for their interest in the other lands, and to that extent the proceeding was substantially a partition of the Champion property; at least to the extent of eliminating' therefrom the interest of Henry’s children. It is also true that the act of 1791 gave a lien for the purchase money of an intestate’s land sold for partition, and by fair construction also upon lands assigned for sums of money necessary to produce equality of partition. See McQueen v. Fletcher, 4 Rich. Eq., 158; Burris v. Gooch, 5 Rich., 1. But we do not consider it necessary to decide whether the bill was for the partition of such property as was contemplated by the act, or whether lands in [204]*204Sumter county could be legally partitioned by this proceeding in Kershaw county, or whether the technical statutory lien under the act arose out of the proceedings, in favor of the creditors thereby adjudged to be paid.
A consent decree is in effect the agreement of the parties concerned, and we think the rights of the parties must be determined, not by reference to the statute of 1791, but by the construction of Judge Melton’s decree. What was the object and intention of that decree ? Taking all of its parts together and considering it as a whole, we cannot resist the conclusion that it was intended to embody and carry into effect a tripartite agreement as follows: First, the children of Henry were willing to take the “upper plantation” in full of their share of the Champion estate, if it could be disencumbered. Second, the other co-tenants, in order to accomplish this to the relief of the other lands, agreed to disencumber it by paying the judgments. And third, the creditors consented to lift their liens from the “upper plantation” upon the other co-tenants agreeing to pay the balance of their judgments.
The children of Eliza Hester had no connection with the proceedings to settle the affairs of Henry’s estate, except in so far as they touched the Champion property. The title to the “upper plantation” had been made to Henry W. and his heirs, and therefore, as property, it was no part of the Champion estate, although the estate of Henry might be liable to account for its value; and it seems to us that the logical and inevitable conclusion must be that the undertaking to disencumber the “upper plantation” (by paying the judgments) was really the consideration of the relinquishment by Henry’s children of their share in the Sumter lands. Lifting the judgments was in fact the basis of the whole arrangement, without which nothing could have been done, as appears from the fact that the creditors could derive no benefit from the decree until their judgments were marked satisfied. The agreement to pay the judgments was the very thing that enabled the children of Henry to take the “upper plantation” in exchange for their interest in the Sumter lands.
It is true that the decree does not expressly declare that one was the consideration of the other, but the transaction shows it. [205]*205If the payment of the judgments was not expressly stated to be a condition precedent to the vesting absolutely of the interest of Henry’s children, both were connected with the same subject-matter, wfere counterparts of the same scheme, declared by the same consent decree or mutual covenant, and, in our judgment, must be considered as mutual and dependant provisions. Therefore only an equity to the interest of Henry’s children passed to the other co-tenants, which they could only mortgage subject to the payment of the judgments to the creditors, who had relieved the “upper plantation” for Henry’s children, and thereby become entitled to all their rights.
It is well settled that a vendor of lands, or his assignee, where he has not executed title to the purchaser, but the contract is still executory, has a lien upon the lands sold for the purchase money and may have specific performance of the contract, and the land sold in discharge of it, precisely as if he had executed titles and taken back a purchase money mortgage. Gregorie v. Bulow Rich. Eq. Cas., 244; Buckner v. Railroad Company, 7 S. C., 328; Walker & Trenholm, v. Kee, 14 Id., 142; Herbemont v. Sharp, 2 McC., 264. In the last case cited, it is said that “in no sense can a sale of lands be regarded as complete until the purchaser has paid his money and the seller has conveyed the land.”
We do not think there is anything in the last paragraph of the consent decree which conflicts with this view. One of the co-tenants, Lloyd C. DeSaussure,' was a minor, and in order to enable the parties to meet promptly any advantageous offer that might be made to purchase the Champion property, John M. DeSaussure, sr., the father of the said minor, was authorized to act for him and to receive his part of the purchase money, until he had a regular guardian appointed. This was in no way inconsistent with the general scheme of the decree by which the co-tenants were to pay the judgments. That was a present obligation, and any rights conferred upon the said minor must be assumed to have been given subject to that obligation, and not in such way as to defeat the whole scheme before arranged. Besides, it is clear that the privilege conferred upon the said minor had no special reference to the interest of Henry’s children, but reached to the minor’s interest in the whole’ of the Champion lands.
[206]*206Nor do we think that this secret lien, as it is styled, could work a hardship upon others without notice. No one dealing with one tenant in common had the right to suppose that he could encumber the share of another tenant in common; and if he desired information on the subject, he could find it nowhere but in the decree, which would have disclosed the fact that the “upper plantation” had been assigned to the children of Henry in full discharge and satisfaction of their shares in the trust estate devised to them, but at the same time it would have disclosed the other facts, that the living co-tenants were directed to pay certain balances of judgments, and that there was no change of title expressly made as to the interest of Henry’s children in the Sumter lands. We are constrained to hold that there is a lien upon the share of Henry’s children in the Sumter lands, to secure the balance of the judgments aforesaid, commencing November 12, 1870, and upon the interest' proper of all the other tenants in common from March, 1883, when the judgments were renewed and lodged in Sumter county.
What, then, is the amount of that share, so far as the creditors are concerned ? If this were an original question, there could be little doubt about it. The lands were a part of the estate of Champion, and fell under the fourth clause of his will, which devised them to trustees for the sole and separate use of his daughter, Eliza Hester, during her life, and “from and immediately after her death, that then the said trustees shall stand seized and possessed of the same in trust to and for the sole use, benefit, and behoof of the heirs of the body of my said daughter who may be lining at the time of her death, share and share alike.” Eliza Hester died March 11, 1864, leaving alive six children, viz.: Mrs. Mary L. Davis, John M. DeSaussure, jr., Eliza O. DeSaussure, Mrs. Sarah A. Davis, Lloyd C. DeSaussure, and Caroline DeSaussure (who afterwards died August 12, 1864, unmarried and intestate), and four grandchildren, viz.: George R., Douglass, Blanding, and Champion DeSaussure, children of a predeceased son, Henry W. DeSaussure.
Assuming that the grandchildren as well as the children were “heirs of her body then living,” the question is made whether they took per stirpes through their father who was not living at [207]*207the time of the death of the life tenant, or per capita “share and share alike” with the children, making ten instead of seven original shares. Although described as “heirs,” the remaindermen did not take as “heirs” by descent, but as purchasers under the will. In such cases, after much discussion and some difference of opinion, it seems to have been settled as a rule of construction, that “wherever, by the terms of description, in a'devise or grant, resort must be had to the statute of distributions for the purpose of ascertaining the objects of the gift, resort must also be had to the statute to ascertain the proportions in which the donees shall take, unless the instrument making the gift indicates the intention of the donor that a different rule of distribution shall be pursued,” &c. Campbell v. Wiggins, Rice Ch., 10; Lemacks v. Glover, 1 Rich. Eq., 141; Rochell v. Tompkins, 1 Strob. Eq., 114; Collier v. Collier, 3 Rich. Eq., 555.
The terms of the devise here being “to heirs of the body,” imposed the necessity of referring to the statute to ascertain who were such “heirs,” and if the devise had stopped there, the children of Henry W. would undoubtedly have taken in the manner prescribed by the statute. That is to say, they would have represented their father and taken together per stirpes his share — one-seventh part of the estate; besides their distributive portion of the share of their deceased aunt, Caroline. But the superadded words, “share'and share alike,” imply equality of division, and we think made the exceptional case “when the instrument creating the gift indicates the intention of the donor.” Templeton v. Walker, 3 Rich. Eq., 543; Allen v. Allen, 13 S. C., 531. This latter case well expresses it: “Thus where, as in Freeman v. Knight, 2 Ired. Eq., 72, the testator directed that certain personal property ‘should be sold and the proceeds equally divided between my legal heirs,’ it was held that though a resort to the statute was necessary, in order to ascertain who were the persons embraced in the class to whom the bequest was made, there was no such necessity to refer to the statute to ascertain the mode of distribution because the testator”had himself determined that, by directing an equal division, and hence the proceeds of sale should be distributed amongst the widow and children and the children of pre[208]*208deceased children per capita and not per stirpes-.” We think that the same must be said here of the words “share and share alike.”
But it is urged that the question as between these parties is res adjudicata; that it was adjudged in the Kershaw case of Mary R. DeSaussure and her children against Boswell, sheriff, and others, before referred to, that the children of Henry W. represented their father, and took among them only one-seventh part of the estate, and their distributive part of their aunt Caroline’s share; and that those creditors who. were parties to that proceeding and agreed to take that interest, cannot- go back to the will, and under a strict construction thereof now claim more. It seems to us that there is force in this view.. It is true that the precise point ivas not formally decided by the consent decree; but at that time such was manifestly the understanding of all the parties, including the counsel engaged as well as the-judge who pronounced the decree. The bill filed in behalf of the children of Henry W. in setting out the parties entitled to the Champion property, stated their claims as follows: “Your infant orators who are entitled to take among them the one-sixth part of said estate, and the other parties in interest each one-sixth.”
This statement did not discriminate nicely as to their interest in the estate of their deceased aunt, Caroline; but regarding her separate share as simply absorbed in the general estate, did distinctly claim per stirpes through their deceased father. And the consent decree itself, which only put in force the covenants of the parties, recognized the same construction. In assigning the “upper plantation” to the children of Henry, “to be taken and deemed to- be in full discharge and satisfaction of the portion, share, and interest of the said children in the Champion estate,” the decree incidentally refers to what was the share of one of the remaindermen, viz., the minor, Lloyd C. DeSaussure, after the interest of Henry’s children had been eliminated, and declares it to be “one-fifth portion thereof.”
In considering the rights of the creditors, we have construed that consent decree according to what we conceived to be its object and intent taken as a whole; and we are of opinion that in reference to the rights of the remaindermen it should be construed in the same manner, and that the creditors, who were par[209]*209ties and consented to the arrangement on that basis, should be held to stand by it, even if there was an honest mistake of law involved in it. Keitt v. Andrews, 4 Rich. Eq., 354; Reese v. Holmes, 5 Rich. Eq., 531; Cuningham v. Cuningham, 20 S. C.. 317. “One who accepts the terms of a contract must accept the contract as a whole. He cannot accept part and reject the rest.” Big. Est., 511. Thus, considering the creditors estopped from changing the elements of the arrangement as understood and acted on by all parties at the time, the aggregate share of Henry’s children must be taken to be as follows: as remainder-men under the will representing their father, and taking one-seventh of the whole estate; and as distributees of their aunt Caroline (counting her father as distributee), one-seventh of another original seventh.
This brings us to the question of estoppel as to the Villipigue judgment, which is not free from difficulty. John M. DeSaussure, sr., became the owner by assignment of the Villipigue judgment against John M. DeSaussure, jr., which, as appeared before, is the oldest lien on the undivided interest of the said. John M., jr. Afterwards, John M., the father, joined in the bond and mortgage to Alden, assigned to Kerngood. This mortgage ivas also executed by John M., jr., along with his brothers and sisters. That mortgage contained a warranty in these words: “And the parties do hereby bind themselves, their heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said George Alden, heirs, and assigns, for and against his heirs, executors, administrators, and assigns, lawfully claiming, or to claim, the same or any part thereof.” And it-is now claimed that it was error on the part of the Circuit judge to hold that W. D. Trantham, as administrator of John M. DeSaussure, sr., is estopped from setting up the judgment to the prejudice of the rights of Kerngood.
Several preliminary objections are made to the alleged warranty in the Kerngood mortgage. It is said that the words used did not clearly express a general warranty of the premises. There seems to have been some transposition of its different parts, as if a mistake had been made in filling blanks; but there can be no serious doubt that the parties intended to execute a [210]*210general warranty in the usual form. It is also suggested that the question of estoppel ivas .not made “either in the pleadings or by the evidence or by way of exception.” The complaint did allege that the judgment had been “paid,” and the peculiar defence of estoppel was one of law, and arose out of the facts proved. In settling the priorities, it was necessary to decide it.
Then what was the effect of the warranty in the Kerngood mortgage? If it had been an absolute conveyance of the premises to Alden, with a general warranty, which has been held to include several covenants, and among them one of quiet enjoyment, and that of free from all encumbrances, it is plain the warranty would have been broken by the existence of an outstanding judgment having a lien upon the premises, and the covenantee might have recovered against his covenantors, or their respective representatives, the amount of damages caused to him by said encumbrance. Jeter v. Glenn, 9 Rich., 380, and authorities. We do not see why the same consequence should not follow from a warranty in the mortgage, when it is proposed to foreclose it and claim the land to pay the debt for which it was a security. This consequence results simply from the existence of the encumbrance, without regard to who may be the owner of it.
In such case if the incumbrance is owned and enforced by a . stranger, the only remedy for the mortgagee would be an action at law for damages upon the broken covenant of warranty. But when it happens that such incumbrance is owned by the warrantor himself or his representative, a court of equity seizes hold of that coincidence, and, in order to prevent circuity of action, declares an estoppel. “Covenants for quiet enjoyment in themselves are said to be as effectual by way of estoppel as words of conveyance. The doctrine seems to rest upon the same grounds as that concerning the estoppel of a grantor in fee with -warranty, to set up an outstanding title against his grantee, namely, that of prevention of circuity of actions. Should the grantor, having acquired a paramount title, attempt to disturb and regain the possession of his grantee, the latter would be entitled to set up the covenant for quiet possession by way of rebutter; and this, it would seem, w'ould as effectually operate against the grantor as if he had made a direct conveyance of the land.” Big. Est, 304. [211]*211A mortgagor by a mortgage containing the usual covenants of seizin and warranty is estopped to deny the title of the mortgagee. Jones Mort., § 662.
We do not think it was error to hold that Trantham, the administrator of John M. DeSaussure, sr., is estopped from claiming any right to have the Villipigue’judgment paid to the prejudice of the plaintiff Kerngood, his mortgagee. But it seems to us that it was error to remove that judgment from its place in the line of priorities and place it behind Kerngood, thus pushing up into its place the next succeeding liens in their order. We cannot see that the estoppel as to Kerngood should be made to enure to the benefit of the intermediate mortgagees, who took their liens subject to that of the judgment and prior mortgages duly recorded, and cannot in any way be injured by the covenant of warranty executed subsequently. In order that the intermediate mortgagees may simply hold their places unaffected by the warranty in the Kerngood mortgage, it seems to us that the Villipigue judgment should keep its place at the head of the line of priorities ; but that the estoppel should be affected by regarding as assigned to Kerngood so much of the Villipigue judgment as may be necessary to reimburse him for the damage he may sustain by the enforcement of the judgment. If Kerngood should be paid by the sale of the property, then he has suffered no damage, and the administrator, Trantham, will be entitled to the proceeds of the judgment. If he is not paid, Kerngood will be entitled to the proceeds of the judgment, or so much thereof as maybe necessary to indemnify him for damage caused thereby.
We conclude, that after paying the expenses and Mrs. Sarah E. DeSaussure, as provided by the Circuit decree, the priorities in respect to date will stand as follows: I. The Villipigue judgment, with the rights of Kerngood in regard thereto, as herein stated. II. The claim of Witte Bros., as to the share of Henry’s children in the Sumter lands, as herein explained and limited. III. The Ellen Stuart claim, as set down in the decree. IV. The Clyburn claim as stated. V. The Simonds claim as stated. VI. The Kerngood claim, with rights in the Villipigue judgment, as herein stated. VII. The remainder of the claim of Witte Bros.
The judgment of this court is, that the judgment of the Circuit [212]*212Court be modified in conformity with the conclusions herein announced, and in all other respects be affirmed.