The opinion of the court was delivered by
Will and, C. J.
The plaintiff, Warren, a bond creditor of Mary Raymond, deceased, brought this action against H. H. Raymond, her heir-at-law, to whom her lands descended, claiming such lands as assets descended in the hands of the heir of the obligor, liable to the payment of her debt. He has made various parties defendants with the heir, alleging that they make various claims to the land either under the ancestor, Mary Raymond, or under H. H. Raymond, his heir-at-law. His prayer for judgment is that his debt may be paid, that the creditors of Mary Raymond and of H. H. Raymond be enjoined from attempting to enforce their demands against property derived from the ancestor, Mary Raymond, and that the assets of the estate of Mary Raymond be marshaled and the creditors called in to prove their claims, and that all rights and equities be herein adjudicated, and for the appointment of a receiver, and that the property be sold and the proceeds applied, first, to the costs of these proceedings, next to the debts of Mary Raymond, and finally to debts of H. H. Raymond. It appears that administration has not been had on the estate of Mary Raymond, nor is that estate represented for the purpose of marshaling its assets. Neither does it appear that the complaint was in the nature of a creditor’s bill against H. H. Raymond for the purpose of converting his estate into assets for the purpose of distribution in equity, inasmuch as it does not appear that judgment had been recovered against H. H. Raymond and execution returned nulla bona. Ragsdale v. Holmes, 1 S. C. 91. Primarily the action would have to be regarded as simply that of one brought by the creditors of an intestate against his heir in possession of lands descended for the satisfaction of his debt, the other defendants being joined as individual parties merely. The Circuit "decree takes a larger scope than this would seem to indicate, but so far as it is not appealed from or necessarily affected by matters [22]*22brought here by appeal, it will not be disturbed as between the present parties. The fundamental proposition on which the Circuit decree rests is at variance with the recent decision of this court in Simons v. Bryce, 10 S. C. 354. The conclusion of the referee, sustained by the decree, was that the mere fact that the heir had mortgaged the lands descended to him, independently of the fact that the mortgagor remained in possession of the descended lands so mortgaged, was sufficient to establish an alienation in the sense of the statute of 3 and 4 W. & M., 2 Stat. 533. We held, in Simons v. Bryce, that while the mortgagor was in possession, the statute of 1791 {Gen. Stat. 536) prevented the mortgage from operating as an alienation. In Richardson v. Ohappel, 6 S. C. 146, this court- held that bona fide alienation by the devisee defeated the claims of the creditor of the testator against the lands devised; but the referee is inaccurate in stating that case as deciding that the alienee must show that the alienation was for a valuable consideration, and without notice, in order to come within the terms of the statute of 3 and 4 W.& M. In that case the equitable defence of purchaser for a valuable consideration without notice was set up in a suit, in one aspect, in the nature of a bill framed upon the equity of 5 Geo. II. One of the facts in the case was that Simpkins, the purchaser from the devisee, had paid part of the purchase money after notice of the plaintiff’s claim, and that in equity he should- be made-chargeable with the amount thus paid in disregard of the plaintiff’s equity. The equitable defence of purchaser for a valuable consideration without notice included all that was necessary to decide the legal as well as the equitable questions involved, and was appropriately considered for that purpose. What was said in that case was not intended as an exposition of the meaning of the phrase bona fide alienation, as used in 3 and 4 W. & M. In Haynesworth v. Bischoff, 6 S. C. 159, the question arose on a plea of purchaser for a valuable consideration without notice interposed to a claim to charge lands of which the title stood in an alienor individually, and not as administrator, as assets of his-intestate’s estate. The lands were mortgaged to the defendant, who set up the plea of purchaser for a valuable consideration without notice. No question of alienation through a mortgage [23]*23was presented in that case. It was held to he immaterial whether any estate passed under the mortgage. In equity the mortgagee was regarded as possessing a right to go upon the land for the payment of the mortgage debt, and this right was subject to protection under the plea of purchaser for a valuable consideration without notice, and that the equitable right was unaffected by the statute that had adopted the views that the court of equity had always held as to the nature of a mortgage. This was far from involving the question of the effect of the legal defence of alienation under the statute of 3 and 4 W. & M., nor does it preclude the court of equity from giving the same construction to that defence as a court of law would give, where arising before it, from the provisions of the statute. The Circuit decree is erroneous to the extent that it rests upon the proposition just considered.
In consequence of the conclusion of the referee and the Circuit judge just referred to, it became unnecessary for them to decide whether the mortgages, set up by way of defence to sustain the plea of bona fide alienation as against the rights of the creditor of the ancestor, commenced to operate by way of transferring the legal title of the mortgagor to the mortgagees by reason of the mortgagor being out of possession, at any time prior to the commencement of this action. There are, therefore, no such findings of fact and conclusions of law on that point as to bring the case before us for a final decree. Indeed, the brief, although exceedingly voluminous, appears to be framed to present the bearing of the facts of the case upon the points actually decided* rather than to present the whole state of facts to this court so that a final decree could be made variant from that appealed from. We can, therefore, do no more than to lay down the principles that should' govern such findings, so far as we are enabled to state them from the facts before us.
As it regards the claim under the mortgage of H. H. Raymond to A. Gr. Rice, the findings of fact of the referee appear sufficiently full to present the question whether such mortgage in virtue of the proceedings had under it operated as an alienation of the lands descended under the statute of 3 and 4 W & M. These findings do not appear to have been excepted to, and must [24]*24stand as final. It appears that the mortgage contained a clause that in case of certain contingencies, among others that of default in the payment of principal or interest on the bond which such mortgage was given to secure, the mortgagee, Rice, “ shall and may peaceably enter into, have, hold, use, occupy, possess and enjoy the said premises above mentioned, and collect all rents, issues and profits of the same, and every part thereof.” Directions were then given as to the application of the money arising therefrom, among other purposes to that of the payment of the principal and interest due on the said bond and mortgage.
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The opinion of the court was delivered by
Will and, C. J.
The plaintiff, Warren, a bond creditor of Mary Raymond, deceased, brought this action against H. H. Raymond, her heir-at-law, to whom her lands descended, claiming such lands as assets descended in the hands of the heir of the obligor, liable to the payment of her debt. He has made various parties defendants with the heir, alleging that they make various claims to the land either under the ancestor, Mary Raymond, or under H. H. Raymond, his heir-at-law. His prayer for judgment is that his debt may be paid, that the creditors of Mary Raymond and of H. H. Raymond be enjoined from attempting to enforce their demands against property derived from the ancestor, Mary Raymond, and that the assets of the estate of Mary Raymond be marshaled and the creditors called in to prove their claims, and that all rights and equities be herein adjudicated, and for the appointment of a receiver, and that the property be sold and the proceeds applied, first, to the costs of these proceedings, next to the debts of Mary Raymond, and finally to debts of H. H. Raymond. It appears that administration has not been had on the estate of Mary Raymond, nor is that estate represented for the purpose of marshaling its assets. Neither does it appear that the complaint was in the nature of a creditor’s bill against H. H. Raymond for the purpose of converting his estate into assets for the purpose of distribution in equity, inasmuch as it does not appear that judgment had been recovered against H. H. Raymond and execution returned nulla bona. Ragsdale v. Holmes, 1 S. C. 91. Primarily the action would have to be regarded as simply that of one brought by the creditors of an intestate against his heir in possession of lands descended for the satisfaction of his debt, the other defendants being joined as individual parties merely. The Circuit "decree takes a larger scope than this would seem to indicate, but so far as it is not appealed from or necessarily affected by matters [22]*22brought here by appeal, it will not be disturbed as between the present parties. The fundamental proposition on which the Circuit decree rests is at variance with the recent decision of this court in Simons v. Bryce, 10 S. C. 354. The conclusion of the referee, sustained by the decree, was that the mere fact that the heir had mortgaged the lands descended to him, independently of the fact that the mortgagor remained in possession of the descended lands so mortgaged, was sufficient to establish an alienation in the sense of the statute of 3 and 4 W. & M., 2 Stat. 533. We held, in Simons v. Bryce, that while the mortgagor was in possession, the statute of 1791 {Gen. Stat. 536) prevented the mortgage from operating as an alienation. In Richardson v. Ohappel, 6 S. C. 146, this court- held that bona fide alienation by the devisee defeated the claims of the creditor of the testator against the lands devised; but the referee is inaccurate in stating that case as deciding that the alienee must show that the alienation was for a valuable consideration, and without notice, in order to come within the terms of the statute of 3 and 4 W.& M. In that case the equitable defence of purchaser for a valuable consideration without notice was set up in a suit, in one aspect, in the nature of a bill framed upon the equity of 5 Geo. II. One of the facts in the case was that Simpkins, the purchaser from the devisee, had paid part of the purchase money after notice of the plaintiff’s claim, and that in equity he should- be made-chargeable with the amount thus paid in disregard of the plaintiff’s equity. The equitable defence of purchaser for a valuable consideration without notice included all that was necessary to decide the legal as well as the equitable questions involved, and was appropriately considered for that purpose. What was said in that case was not intended as an exposition of the meaning of the phrase bona fide alienation, as used in 3 and 4 W. & M. In Haynesworth v. Bischoff, 6 S. C. 159, the question arose on a plea of purchaser for a valuable consideration without notice interposed to a claim to charge lands of which the title stood in an alienor individually, and not as administrator, as assets of his-intestate’s estate. The lands were mortgaged to the defendant, who set up the plea of purchaser for a valuable consideration without notice. No question of alienation through a mortgage [23]*23was presented in that case. It was held to he immaterial whether any estate passed under the mortgage. In equity the mortgagee was regarded as possessing a right to go upon the land for the payment of the mortgage debt, and this right was subject to protection under the plea of purchaser for a valuable consideration without notice, and that the equitable right was unaffected by the statute that had adopted the views that the court of equity had always held as to the nature of a mortgage. This was far from involving the question of the effect of the legal defence of alienation under the statute of 3 and 4 W. & M., nor does it preclude the court of equity from giving the same construction to that defence as a court of law would give, where arising before it, from the provisions of the statute. The Circuit decree is erroneous to the extent that it rests upon the proposition just considered.
In consequence of the conclusion of the referee and the Circuit judge just referred to, it became unnecessary for them to decide whether the mortgages, set up by way of defence to sustain the plea of bona fide alienation as against the rights of the creditor of the ancestor, commenced to operate by way of transferring the legal title of the mortgagor to the mortgagees by reason of the mortgagor being out of possession, at any time prior to the commencement of this action. There are, therefore, no such findings of fact and conclusions of law on that point as to bring the case before us for a final decree. Indeed, the brief, although exceedingly voluminous, appears to be framed to present the bearing of the facts of the case upon the points actually decided* rather than to present the whole state of facts to this court so that a final decree could be made variant from that appealed from. We can, therefore, do no more than to lay down the principles that should' govern such findings, so far as we are enabled to state them from the facts before us.
As it regards the claim under the mortgage of H. H. Raymond to A. Gr. Rice, the findings of fact of the referee appear sufficiently full to present the question whether such mortgage in virtue of the proceedings had under it operated as an alienation of the lands descended under the statute of 3 and 4 W & M. These findings do not appear to have been excepted to, and must [24]*24stand as final. It appears that the mortgage contained a clause that in case of certain contingencies, among others that of default in the payment of principal or interest on the bond which such mortgage was given to secure, the mortgagee, Rice, “ shall and may peaceably enter into, have, hold, use, occupy, possess and enjoy the said premises above mentioned, and collect all rents, issues and profits of the same, and every part thereof.” Directions were then given as to the application of the money arising therefrom, among other purposes to that of the payment of the principal and interest due on the said bond and mortgage. It appears by the finds of the referee, that under this power the mortgagee, A. Gr. Rice, entered and took possession of the mortgaged premises on the 14th day of January, 1876, prior to the commencement of this suit, as upon condition broken. It is clear that the mortgagor was out of possession as it regarded such mortgaged premises at the time of the commencement of the present suit. Under such circumstances the decision in the case of Simons v. Bryce is inapplicable, as it regarded the lands so mortgaged and out of the possession of the mortgagor.
The statute of 1791 (5 Stat. 178, Oen. Stat. 536,)’ only operates to prevent the mortgage from having its due effect at common law while the mortgagor is in possession. The moment that possession passes out of him, in the' sense of the statute, title passes through the mortgage under the operation of the statute, and the mortgagor occupies the same position he would have occupied had the statute never been passed. Under such circumstances this mortgage would be competent to work an alienation under the statute of 3 and 4 W. & M. It is claimed here that in order to establish possession out of the mortgagor, it is necessary to show that he has conveyed the mortgaged premises by an absolute deed to a third person, who is in possession under such deed. We have been referred to several cases in this state as supporting such proposition. None of the cases cited, either directly or indirectly, sanction such a conclusion. In Laffin v. Kennedy, 15 Rich. 246, it was held that the mortgagor was not to be considered out of possession so long as the premises were in the possession of a tenant holding under him. This case rests on the familiar principle that the possession of the tenant is the [25]*25possession of the landlord in law. Where the mortgage contains authority for the mortgagee to enter upon condition broken and take and hold possession, with the rents and profits, and, after condition broken, is let into such possession by the mortgagor, the latter is clearly out of possession through his own act and deed in the sense of the statute. In that case the mortgage has the force and effect of a mortgage at common law and constitutes an alienation of the mortgaged premises under the statute of 3 and 4 W. & M. As to such alienated premises, the plaintiff cannot follow the land.
There can be no doubt that when property descended is mortgaged by the heir and such mortgage is foreclosed and the property sold under a decree of foreclosure, it is an alienation. The fact that the mortgage contains a power of sale in case of default is unimportant; it must appear that such power of sale has been effectually exercised in order to produce that result.
It appears that, in order to secure a mortgage given by H. H. Raymond to W. J. Gayer, the mortgagor required the tenants of the property covered by the said mortgage to pay over the rents thereof to the said W. J. Gayer. In order to determine whether that transaction was of sucli a nature as to amount to a surrender of the possession by the mortgagor to the mortgagee, there should have been a finding of fact whether such was the act and intent of the parties. If the mortgagor merely assigned to the mortgagee the interest to grow due from time to time on an outstanding lease, without parting with the reversion, so that he would retain the right to enforce any covenants on the lease, or to make a new lease on the determination thereof, then the mortgagor must be considered as remaining in possession of the mortgaged premises, and the mortgage does not constitute an alienation by the heir. If, on the other hand, the mortgagor surrendered possession of the mortgaged premises to the mortgagee, then the mortgage must be regarded as an alienation. As the true issues were not presented under the view taken by the referee and the Circuit Court, it appears advisable that this question of fact should be passed upon by the Circuit Court under the view presented herein. The same question is raised as to other defendants, [26]*26and is subject to the same observation, and should be disposed of in like manner.
W. M. Thomas, in 1868, obtained a decree for the foreclosure of a mortgage made by Mary Raymond, and enrolled such decree as a money decree, and issued executions thereon, in Charleston, during that year, and during the lifetime of Mary Raymond. The Circuit decree holds that the decree in question was a money decree, and was properly enrolled, and that lodging the execution issued thereunder, in Charleston, gave a lien on the lands of Mary Raymond in Charleston. The decree of foreclosure was made by Chancellor Carroll, Jan. 22d, 1868, and contains the provision “that unless the defendant, Mary Raymond, do pay the complainant, William M. Thomas, the sum of three thousand two hundred and sixty-five dollars and sixty-two cents, with interest on the original sum of twenty-five hundred dollars, from the 16th of January, 1868, and the costs of this suit, on or before the sale-day in March next, the commissioner shall proceed to sell the house and lot on that sale-day, or some other convenient sale-day thereafter, at public auction,” &c. It further adds: “ It is further ordered, that unless the payment is made as above directed, that the defendant’s equity of redemption in the mortgaged premises be forever foreclosed.” Direction is then given for the disposition of the proceeds of the sale, after which follow these words: “ But in case there should not be enough of the purchase money after satisfying the costs to pay the plaintiff the sum reported to be due him, then he shall be allowed to enroll his decree and issue execution against the defendant for the balance.” The Circuit judge holds that the decree was properly enrolled on the 30th of January, 1868, by the filing of an abstract of the decree in the proper office on that day.. The question then arises whether the filing of an abstract of that decree on the 30th day of January, 1868,' was the enrolling of a money decree, competent to create a lien on real estate.
The Circuit decree holds that the decree of Chancellor Cartoll was a money decree within the meaning of the following language, cited from Blake v. Heyward, Bail. Eq. 201, viz.: “ The decree in the case before us establishes a sum of money to be [27]*27due by the defendants in the original bill, and not only subjects the land in dispute to the payment of it, but also directs that the balance, if any, after the sale of the land, shall be paid out of the estate of their testator. It is, therefore, a decree for the payment of money and has a lien, from the time it was pronounced, on all his real estate.” This case was decided prior to the act of 1840 requiring enrollment, and is, as the Circuit judge claims, good authority on the point. The decree of Chancellor Carroll differs materially from such a decree as that contemplated in the language from Blake v. Heyward. That case clearly contemplated a decree adjudging a certain sum of money to be personally due from one party to the other, although containing further provisions for enforcing it out of a particular fund, with recourse to a general execution if that fund should be found insufficient. The decree of Chancellor Carroll did not adjudge any amount as presently due. It no doubt implied the existence of a debt, but did not establish it as a present debt, and I know of no authority for issuing an execution to enforce that which is merely implied by a judgment or decree. It gave a certain time after the day on which it was pronounced to the defendant to pay an ascertained sum for the benefit of the complainant, namely, until sale-day in March, 1868, and declared that if such sum was not paid at that time the commissioner should proceed to sell the property. Had a present indebtedness been-adjudged these words might have been referred to the delay of the sale merely, but in the absence .of such a direct adjudication, and in view of the concluding language of the order, that will presently be considered, the conclusion cannot be resisted that the Chancellor intended for the defendant what was equivalent to a credit on interest until the sale-day in March. The decree also ordered “ that unless payment is made as above directed” the defendant’s equity of redemption should be barred.
The whole effect of the decree, therefore, if the language and provisions are to speak for themselves, is to impose a duty on the defendant to pay a certain amount at a future day, or, failing to do so, that the mortgaged property should be sold and her equity of redemption barred. Before that day arrived on which the defendant was bound to make such payment, the decree was [28]*28attempted to be enrolled and execution issued to the sheriff of Greenville. This was clearly inconsistent .with' the intention of the decree, which, to place the matter beyond all dispute, concludes with these words: “ But in case there should not be enough of the purchase money, after satisfying the costs, to pay the complainant the sum reported to be due him, then he shall be allowed to enroll his decree and issue execution against the defendant for the balance.” The whole decree is consistent with itself. It clearly intended to give the defendant until the sale-day in March to pay the money, and for that purpose fixes the proper time for enrolling the decree and issuing execution by the word “ then,” having relation to the time when the proceeds of the sale should be found insufficient to pay complainant’s mortgage debt. To enroll the decree before that time, and seek to enforce immediate payment by execution, was not to enforce, but to disregard, the decree of the court of equity. We are precluded from declaring a decree of a court of general jurisdiction void or erroneous unless duly appealed from, and surely the parties to a decree cannot be permitted to disregard its provisions. No appeal appears to have been taken from Chancellor Carroll’s decree, and all parties are bound by it. The Circuit judge was ■ clearly in error in holding that as the right to enroll was a statute right, it could not be affected by the provisions of the decree. The court before whom a cause is pending, especially when of general jurisdiction, is, subject to appeal, the only judge of what are the rights of parties as it regards the use of its process and means of enforcing its judgments. If it judges erroneously as to any such rights, the proper remedy is by appeal; but to assert that parties may disregard the provisions of its decrees, as it regards the mode of enforcement, introduces a dangerous innovation in our ideas as to what is due the authority of the courts.
At all events, the decree of Chancellor Carroll must be regarded as liquidating the debt in favor of W. M. Thomas against Mary Raymond during her lifetime. The proceedings upon Chancellor Carroll’s decree, after the death of Mary Raymond, must be regarded as a new proceeding against H. H. Raymond as heir to Mary Raymond, and not as revived against her personal representative, as administration was not then had on her [29]*29estate so as to enable it to be revived. These proceedings cannot be regarded as affecting the decree of Chancellor Carroll. They grew out of an attempt to destroy the force and effect of the decree by military authority, and did not involve any question of error in the decree itself, and must be regarded as extensive to the decree.
In view of the foregoing conclusions, it is not practicable at the present time to ascertain the various priorities of the parties plaintiff and defendant, but there should be an inquiry as to the various matters of fact opened hereby, and the decree modified to conform to the principles already laid down. The decree of the Circuit Court should be set aside where inconsistent herewith, and opened in other respects to the extent necessary to modify it in accordance with the foregoing.
I concur.
Henry McIver, A. J.
I concur, except on the point touching the priority of lien in the case of Thomas v. Mary Raymond, and as to that I adopt the conclusion reached by the Circuit judge.
A. C. Haskell, A. J.
Decree modified.