Warren v. Raymond

17 S.C. 163, 1882 S.C. LEXIS 62

• Court: Supreme Court of South Carolina
• Decided: April 28, 1882
• Status: Published

Opinion

— The opinion of the court was delivered 1>7

Mr. Justice McGowan.

— Mrs. Mary Raymond died intestate in February, 1869, possessed of a considerable estate, consisting for the most part of valuable improved lots in the city of Charleston. She had little personal property, and at first there was no administration on her estate. She left one son, her only child and heir, Henry H. Raymond, who, upon the death of his mother, took possession of all her estate, without paying her debts. He was himself largely indebted, and to secure his creditors, from June, 1810, to July, 1815, he executed sundry mortgages upon the real estate of which his mother died seized: and the numerous complications of the case have arisen in different ways out of the struggle whether the real estate which belonged to Mary Raymond at her death, and went into the possession of H. FI. Raymond as her heir, shall go to the payment of the debts proper of the mother or the son, of the ancestor or the heir.

On January 11, 1816, John D. Warren, as owner of certain joint and several • bonds of Mary Raymond, and H. H. Raymond, commenced this action against IT. IT. Raymond, there being at that time no administration upon the estate of Mary Raymond, alleging that Mary Raymond died seized of considerable real estate, which went into the |>ossession of IT. H. Raymond, who executed sundry mortgages of the said real estate, to secure his creditors, leaving his mother’s debts unpaid; that a number of these mortgagees had instituted foreclosure suits, and that separate sales of the mortgaged property would result in its sacrifice; that there were also a number of judgment creditors of H. FI. Raymond, some of whom were seeking by separate proceedings to sell the property above described; that debts due the plaintiff and other creditors of Mary Raymond should be paid from her estate, in preference to any due'by H. H. Raymond by judgment, mortgage, or otherwise. Plaintiff prayed judgment for the debt due him, that the creditors of Mary Raymond should be called in; that the property should be sold, receiver appointed, etc.

"William M. Thomas, among others, was made a defendant and answered, claiming that he had recovered judgment against Mary Raymond in her lifetime for $3265.62, which was duly enrolled January 30, 1868 ; that execution thereon was lodged in the sheriff’s office of Charleston, December 16, 1868, and that after a credit, the balance of said judgment was still due. The other defendants holding mortgages of H. IT. Raymond, with more or less of difference in their respective claims, insisted that the debts of Mary Raymond should not be paid in preference to those of H. IT. Raymond, out of the real estate of which she died seized, which, by operation of law, descended at her death to H. IT. Raymond, her heir; that he Iona fide aliened the same by way of mortgage to them respectively before action brought against him for the debts of his mother Mary, and that they were purchasers for valuable consideration without notice. They denied the validity of the judgment of "William M. Thomas, and alleged that it belonged to A. Blythe, as assignee in bankruptcy.

On May 8, 18T6, a motion for preliminary injunction was made and failed, but the court granted to the plaintiff leave to amend his complaint charging the insolvency of IT. H. Raymond, and appointed George D. Bryan, Esq., special referee, with instructions to call in by advertisement the creditors of Mary Raymond.

Henry IT. Raymond died testate May 31, 18T6, and on February 20,18TT, Samuel Lord, Jr., qualified as his executor, and answered for his only child and infant heir, Rosalie C. White, ■nee Raymond, and administered on the estate of Mary Raymond. These new parties having been made, the proceedings assumed substantially the double aspect of an action,in the nature of a bill to marshal the assets of Mary Raymond, and to-make land in the possession of the heir liable for the debts of the ancestor.

■On February 3, 1877, the defendant, Thomas, was enjoined from proceeding with the sale of the Waverly House, then advertised for sale under levy of his execution, and on February 21,1877, a decretal order was passed by consent en joining all creditors of H. IT. Raymond, ordering them to be called in, directing all the mortgaged property not already in the court for foreclosure to be sold, and the proceeds of sale instead of the lands to await the event of the litigation.

The referee then called in by publication the creditors of both Mary Raymond and H. H. Raymond to present and prove their demands. The following were presented against the estate of Mary Raymond:

First. John D. Warren, the plaintiff, being the claim on joint and several bonds of Mary Raymond and IT. H. Raymond, on which the action was founded.

Second. W. M. Thomas, claim of judgment before referred to, as to which, being made a defendant he had answered asking 'affirmative relief. It seems that this alleged judgment against Mary Raymond was rendered at Greenville by Chancellor Carroll, in a suit to foreclose a mortgage January 22, 1868. The decree ordered that if the amount found due by the pommissioner in equity was not paid before salesday in March, 1868, that the lands should be then sold, the purchase money credited, and the decree enrolled for the balance. The decree purports to have been enrolled January 30, 1868, before the day of sale, and the land having been sold in December, 1868, execution thereon was issued subject to the credit for the purchase money of the land, and lodged with the sheriff of Charleston, December 14, 1868.

This case went to the old Appeal Court. 15 Rich. 86. It appeared from the record in the case that the decree was upon a sealed note or bond of Mary Raymond, secured by the mortgage aforesaid upon a house and lot in Greenville, and that after the death of Mary Raymond, H. H. Raymond-was made a party defendant, under the supposition that he was the executor of his mother, and various proceedings were had against him, and finally, September 20, 1872, Judge Orr rendered judgment against him as executor de son tort of Mary Raymond, from which there was an appeal to the State Supreme Court, which was dismissed. 4 S. C. 352. From this decision an appeal was taken to the Supreme Court of the United States, and the case is reported in 91 U. S. 712. Judgment against H. H. Raymond was entered at Greenville November 17, 1873, pending the appeal to the Supreme Court of the United States, and a transcript lodged in Charleston November 29,1873, and execution issued and levied on the Waverly House as the property of H. H. Raymond.

Third. B. J. Whaley’s claim as substituted trustee under marriage settlement of H. H. Raymond and his wife, on joint and several bond of Mary Raymond and H. H. Raymond, June 1, 1859, payable in July, 1864. This bond was in the possession of H. H. Raymond from 1864 to 1875, placed there by the trustee for safe keeping. The trustee was not a party to the proceedings, and had made no effort to collect tite same, and the claim did not appear until it was presented under the call by advertisement in the case. No payments were credited, but the interest is only claimed since the death of H. H. Raymond. The precise day on which it was presented and proved did not appear-, but the referee reported the claim as proved in his report of December 7, 1877.

It seems that the claim of the executors of Charles Astor Bristed against Mary Raymond had been paid by foreclosure of mortgage given by Mary Raymond, and there was no claim for any deficiency.

The following claims were presented against the estate of H. H. Raymond:

1. Ellen Barker, trustee, debt secured by mortgage bearing date June 28, 1870; 2. Maria S. Hopkins, debt secured by mortgage bearing date Nov. 25, 1870; 3. Albert Bischoff, as. surviving executor of John C. Otjen, debt secured by mortgage bearing date Jan. 15, 1872; 4. Douglas Nisbit, guardian, debt secured by mortgage bearing date July 15, 1872; 5. Anna Dora Fleming, debt secured by mortgage bearing date' July 1, 1873 ; 6. Executors of E. Poincignon, debt secured by mortgage bearing date August 14, 1873; 7. Wm. M. Thomas, judgment before referred to as recovered at Greenville against H. II. Raymond, as executor de son tort of Mary Raymond. This judgment, as stated, wás entered at Greenville, Nov. 17, 1873, pending appeal to the Supreme Court of the United States, and what purported to be a transcript of the judgment was lodged in Charleston county Nov. 29, 1873, and levied on the Waverly House. 8. A. G. Rice, debt secured by mortgage bearing date June 1, 1875; 9. W. J. Gayer, debt secured by mortgage bearing date July 21, 1875 ; 10. John Fisher, trustee, two judgments on demands against II. H. Raymond alone and not secured by mortgage June 8, 1874; these judgments were assigned to Samuel Lord, Jr.; 11. People’s Bank of South Carolina, judgment April 6, 1875. These three last judgments were released by Mr. Lord, and the bank résjjectively in favor of A. G. Rice at the time of the execution of the mortgage to him by II. II. Raymond. There were other claims which need not be specially referred to.

The referee, December 7, 1877, made a report stating the facts very fully, and deciding that the Thomas judgment was a lien on all the property of Mary Raymond in Charleston and had priority over all the claims now before the court, and that the different mortgages, at their respective dates and in regard to the lands covered by them, were bona-fide alienations of H. II. Raymond before action brought against him. Exceptions were tiled and the case was heard by Judge Wallace, who confirmed substantially the referee’s report. From this decree there was an appeal to this court, which on the main point reversed the decree below holding that a mortgage of the heir-at-law of land inherited is not such an alienation within the meaning of 3 & 4 W. & M., 2 Stat., 533, as will defeat the claims of decedent’s, creditors so long as the mortgagor retadns possession ; but when upon condition broken, the mortgagee takes possession of the land under a power given in the mortgage, or the mortgagor is otherwise out of possession, the mortgage thereupon operates as an alienation. 12 S. C. 9. The court then remanded the case for further proof saying: “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 creditors 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. . ... 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 ns.”

. Accordingly, the case went back to the Circuit Court, and by order was referred again to the same referee, who, under the direction of the judgment of the Supreme Court, took testimony upon the question of fact referred back and made a second very full report February 12, 1880, giving all the testimony and holding that as matter of fact the mortgagor, H. H. Raymond, was not out of possession of the premises mortgaged as to any of the mortgages, including that of A. G. Rice, and that Warren, Whaley, and Thomas were bond creditors of Mary Raymond, and as such entitled to the proceeds of all the lands of which Mary .Raymond died seized and which were mortgaged by H. H. Raymond; the proceeds of the lands to be appropriated in the inverse order of the dates of the mortgages covering the same, and applied equally to the said claims until paid, and if not enough to pay them in full, then to be applied pro rata as in due course of administration.

Exceptions were filed to the report and the case came on to be heard by Judge Thomson, who overruled all the exceptions to the report, except that which assigned error in opening the judgment of the Supreme Court i/n regard to the mortgage of A. G. Mice, as to which he held that it was finally adjudicated by the Supreme Court. From this decree all parties appealed to this court. The exceptions are numerous and voluminous, and in some instances the same points are made by different parties, so that we will not attempt to follow them seriatim, but endeavor to consider them all in connection with the different claims.

All the property involved in this controversy belongs to Mary Raymond and at her death descended to her heir, H. H. Raymond, who mortgaged it in different parcels to secure his own creditors; and now the question is whether it is liable for his or her debts. It is certainly the law that the property of a debtor shall go to the payment of his own debts in preference to those of any other, and the case of ancestor, and heir is no exception. The creditor of the ancestor without'judgment or mortgage has no lien upon the property either before or after the descent east; but the heir is bound as of his own obligation for the debts of his ancestor. While the heir is not a technical trustee for the' creditors of the ancestor as to the property cast upon him by descent, that property itself is liable for the ancestor’s debts while it remains in his possession, and at least until it loses by partition or otherwise the character of assets to be administered, may be actually levied and sold under executions against the personal representative of the ancestor. If however, the heir, before action brought against him for the debt of the ancestor bonarfide alñene the land, his own personal liability to the extent, of assets descended still remains; but the land itself cannot be followed by the creditor of the ancestor into the hands of the innocent alienee. It thus appears that the important point is whether there has been bona-fide alienation by the heir before action brought. The former judgment in this case, following decisions previously made, decided that a mortgage alone, which under our law is generally a mere security for a debt, is not such alienation as is contemplated by the Statute of 3 & 4 W. (& M., 2 Stat. 533.

To constitute such an alienation it is necessary that the mortgagor should be out of possession, and as the Circuit Court had not considered most of the mortgages in that aspect, the case was remanded that testimony might be taken and the judgment of the Circuit Court rendered upon that subject. “As the true issue was not presented under the view taken by the referee and Circuit judge, it seems advisable that the question of fact should be passed upon by the Circuit Court under the views presented herein. . . . 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, or to the extent necessary to modify it in accordance with the foregoing.”

The first general question is as to what was decided by the former judgment, for we cannot, reconsider what was there decided. The principle of res acljtidicatco is one of the most important in the administration of justice; for the peace and order of society require that there should be an end of litigation. As was said by a distinguished English judge: “ Human life is not long enough to allow matters once disposed of being brought under discussion again; and for this reason it has always been considered a fundamental rule that when a matter has once become res acbjwdicata, there shall be an end of all question about it.” The principle is that the decision of a court of competent jurisdiction upon a point which was considered or should have been considered as necessarily involved, is final and conclusive. All the questions made were decided by the former judgment, except only those which are expressly left open, and such as necessarily arise oxxt of them.

It must be considered as decided by the former judgment that the plaintiff John D. Warren, and B. J. Whaley, trustee, are bond creditors of Mrs. Mary Raymond, not barred by laches, lapse of time, or the statute of limitations, and' that action was brought by Warren and Thomas against the heir, H. H. Raymond, on January 17, 1876, and that their claims being legal demands both against Mary Raymond, the debtor, and H, H. Raymond, the heir, to the extent of assets descended, are not affected by the equitable defence of purchaser for, valuable consideration without notice. Although the judgment does not so declare in express terms, we think that what it did expressly decide necessarily included also the question re-argued at the bar with so much zeal and learning, namely, that inasmuch as a mortgage was an alienation in 1712, when the statute of W. and M. was made of force here, it necessarily retained, so far as the construction of that statute is concerned, the same character as an alienation down to the formal x*epeal and re-enactment of that statute by the general statutes in 1872. The statute of W. and M. made no reference to a mortgage as being or not being an alienation. The words used were “ sell, alien, or malm over,” and a mortgage was at that time an alienation, for the reason that it was in effect a conveyance, and the title after condition broken was in the mortgagee. Because it happened that at that time the nature of a mortgage was such as to fall within the terms of the statute and work an alienation, it does not follow that the character of a mortgage must remain the same and that the legislature could not change it. As soon as the lawmakers saw fit to change the nature of a mortgage, as our legislature did in 1791, the question whether in its new form it fulfilled the requirements of the statute was a new question, to be decided not by what a mortgage was in 1712, but by its character as then existing.

"We do not understand that Judge Mclver announced a contrary doctrine in Simons v. Bryce, 10 S. C. 354. In answering this very argument he said: “ It is argued that as a mortgage was undoubtedly an alienation at the time of the adoption of the statute of W. and M. (1712), that statute ought now, notwithstanding the subsequent changes in the nature of a mortgage, still to be construed as embracing a mortgage. There might be some force in this argument but for the fact that this statute has been re-enacted in the General Statutes, and the same terms, so far as the question under consideration is concerned, are retained, although the phraseology in other 'respects is changed.” Judge Mclver meant no more than to say that the argument could have no application to that case.

It must also be considered that the former judgment decided, Judge Haskell dissenting, that the decree of William M. Thomas against Mary Raymond, at Greenville, never was enrolled as a final judgment, so as to give a lien upon her property in Charleston. One of the elements of confusion in the case has been the anomaly of two judgments claimed to exist against different persons originating in the same demand. When Wm. M. Thomas obtained his decree against Mary Raymond in Greenville, in 1868, if it had been legally enrolled as a final judgment, notwithstanding the military orders, and execution lodged in Charleston, any of the property of Mary Raymond might have' been sold under it, whether before or after her death, in the possession of H. H. Raymond or any one else. It is not perceived why it was thought necessary to amend the proceedings after decree, by making H. H. Raymond a party, under the mistake that he was the executor of his mother. Such proceedings were, however, instituted, and after much litigation and several military orders and injunctions, judgment was finally recovered before Judge Orr, September 20, 18Y2, against H. H. Raymond as executor de son tort of Mary Raymond, and after appeal to the Supreme Court of the state, entered November 1Y, 18Y3, pending appeal to the Supreme Court of the United States. It happens that H. H. Raymond was the heir of Mary Raymond, but it does not seem to us that such an unusual proceeding against him as executor de son tort can be regarded as the formal action against the heir for the debt of the ancestor, contemplated by the statute of W. and M.

This judgment also failed to acquire a lien upon the property in Charleston. It was finally entered in Greenville November 1Y, 18Y3, when, by -law, a judgment did not of itself constitute a lien upon real estate. Such lien could only have been acquired at that time under the code of procedure by a levy under an execution issued to enforce the judgment, and by filing a certified copy of the execution with proper certificate thereon in the office of the Register of Mesne Conveyance of the county. That was not done in Greenville. Without stopping now to consider several alleged irregularities therein, a transcript of the judgment was filed in Charleston on November 29, 18Y3, and execution issued and levied on the Waverly House. But still the requirements of the code necessary to give a lien were not then complied with.

It is said that the code was amended so as to make a judgment a lien November 25,18Y3, and a transcript being lodged after that date, viz., November 29,18Y3, became a lien without the formalities as to recording levy required by the code. The words of the amendment are, “Final judgments hereafter entered,” etc.; that is to say, not the transcript of the judgment but the judgment itself, which in this case was entered at Greenville before the ratification of the amendment, and therefore was not covered by it. Since that amendment, the only way in which a lien can be acquired upon a ■ judgment rendered after March 1, 1870, and before November 25, 1873, is in the manner pointed out by that amendment, viz., by requiring the defendant to show cause “ why the judgment should not be; and have a lien in accordance ivith its provisions.” Lynch's Code, 120, Adickes v. Lowry, 12 S. C. 106, and Carroll v. Tompkins, 11 S. C. 223. Besides this judgment was against H. H. Raymond as executor de son tort, and could not be levied on lands of the intestate. As was said in Mitchell v. Lunt, 1 Mass. 657, “ Such an executor having no character by which he can obtain license to sell lands for the payment of debts, the lands cannot in legal construction be the estate of the deceased in his hands, and that to admit the lands to be taken to satisfy a judgment recovered against him would be extremely mischievoirs, as no action for waste for not collecting the personal estate and paying the debts will lie against him for a devisee or heir, etc.” It follows that the judgment never acquired a lien upon the property of H. H. Raymond in his lifetime, and that the "Waverly House could not be legally sold under the levy made thereon.

The judgments against H. IT. Raymond, including that of Thomas, were not alienations by him, and must yield priority first to the claims against Mary Raymond and then to the mortgages executed by H. H. Raymond, and as all the lands were mortgaged by H. H. Raymond, leaving no interest in him which would be liable to judgments, they practically go out of the case. It is contended that the original sealed note which was secured by mortgage of Mary Raymond to Thomas, was merged and extinguished in the decree of foreclosure rendered at Greenville against Mary Raymond by Chancellor Carroll; and that said decree being the basis of the supplemental proceedings against H. H. Raymond as executor, became in turn merged in the judgment against him as executor de son tort, and as Thomas has no lien upon the property he has no claim at all. We cannot accept this view, which would make the long judicial proceedings ineffectual for all purposes, except the destruction of the cause of action they were institued to enforce. The decree of foreclosure against Mary Raymond failed as a final judgment only for the reason that it was not legally enrolled. The subsequent irregular proceedings against H. H. Raymond as executor did not extinguish it. “ Those proceedings,” as stated by Judge Willard, “ 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 itself, and must be regarded as extensive to it.” The proceedings against H. H. Raymond as executor, so far as to make the lands of Mary Raymond liable, were misconceived, and for that reason could not merge in them the decree of foreclosure against Mary Raymond. The latter judgment against H. H. Raymond as executor de son tort might possibly be conclusive as to all personal property with which he had intermeddled, but not so as to the real estate of Mary Raymond. Mitchell v. Lunt, 4 Mass. 654; Freem. Judg. § 265. The claim of Wm. M. Thomas, as liquidated by the decree of foreclosure at Greenville, is entitled to .stand with those of Warren and Whaley, trustee as a bond debt of Mary Raymond.

A. G. Rice was one of the mortgagees of H. H. Raymond, and claimed that before action brought against Raymond as heir he was out of possession as mortgagor, and therefore the mortgage to Rice operated as an alienation. It was claimed on the second reference that when the case was remanded by this court this claim' was excepted from the provisions of that order and was not again before the referee, for the reason that it had been finally adjudicated here. The referee did not take that view, but being of opinion that although the question of alienation had been passed upon, “ it remained to be decided whether it was such an alienation under the statute as to defeat the creditors of the ancestor.” He reconsidered the case of Rice along with those of the other mortgagees, and held that the alienation to Rice was not bona fide, because he knew of the Thomas debt when the mortgage was taken (June, 1875), and the purpose with which he took possession in January, 1876, was to defeat the Warren debt which was then about to be sued. Rice excepted, on the ground that the Supreme Court had decided “ that the plaintiff could not follow the lands covered by his mortgage, which, with the proceedings had under it, alienated the lands before action brought.” The Circuit judge sustained this exception, and the matter is before this court upon exceptions to his judgment.

Did the former judgment finally decide Rice’s claim? In order to have a clear view of whaRwas decided it is necessary to know what was before the court. The referee and Circuit .judge had decided that all mortgages per se were alienations, and therefore in most of the cases the evidence had not been taken as to whether the mortgagor was or was not out of possession. The Supreme Court held that a mortgage was an alienation only when the mortgagor was out of possession, and under this view it was necessary to remand all the claims on the part of mortgagees in which such evidence had not been taken. It happened, however, that in the case of Rice such evidence had been taken and was then before the court.

The referee’s report stated as follows: “ On June 1st, 1875, the said Raymond made to A. Gr. Rice his bond conditioned for the payment of $9337 on June 1st, 1876, and to secure the same executed and delivered to the said A. Gr. Rice his mortgage of the premises known as Nos. 252, 254, 256, and 258 King street, this mortgage being a third one on the stores Nos. 252 and 254, the first and second having been executed to the executors of Poincignon. In addition to the usual covenants this mortgage contained the following, viz.: £ And it is agreed by and between the said parties that in case default shall be made in the payment of the principal or interest of the bond hereby secured, or in the payment of the principal and interest of the bonds or either of them, executed by the said H. IT. Raymond to ~W. Gr. DeSaussure, Julius Trouche, Florence T. Downey, and Lawrence A. Duval, executors of Poincignon, on August 14th, 1873, and secured by a prior mortgage of a part of the premises hereinbefore described, etc., . . or in case default shall happen to be made in the performance of any of the covenants or conditions herein contained, etc., etc., that the said A. Gr. Rice, his heirs, executors, administrators, or assigns, shall and may peacefully enter into, have, hold and occupy, possess and enjoy the premises above mentioned, and collect all rents, issues, and profits of the same, and every part thereof, etc. etc.’ There was due on this bond March 20th, 1877, the sum of $11,022.76. Under the power contained in the said mortgage the said A. G-. Rice entered and took possession of the said premises on January 14, 1876, the said IT. H. Raymond having failed to perform the covenants contained in the said mortgage, etc.”

With these facts before it the court decided as follows: “ 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. . . We can therefore do no more than lay down the principles which should govern such findings, so far as we are enabled to state them from the facts before us.

“ As it regards the elcuim rmder the mortgage of II. JET. Raymond to A. G. Rice, the finding of fact of the referee appears sufficiently full to present the question, whether'such mortgage, in virtue of the proceedings had under it, operated as an alienation of the land descended under the statute of 3 and 4 W. and M. These findings do not appear to have been excepted to, and must stand as final. It appears that the mortgage contained a clause that in certain contingencies, among others that of default of 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 principal and interest due on the said bond and mortgage. It appears by the findings of the referee, that under this power the mortgagee, A. G. Rice, entered cmd toole possession of the mortgaged premises on Jcmua/ry 14, 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 regards the lands so mortgaged and out of the possession of'the mortgagor. The statute of 1191 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. and 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 Laffan 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 possession of the landlord. Where the mortgage contains authority for the mortgagee to enter upon condition brolcen, and take and hold possession with the rents cund profits, cund after condition broken is let imto such possession by the mortgagor, the latter is dearly out of possession through his own act cund deed m the sense of the statute. As to such alienated premises the plcuvntiff ca/rmot follow the lemd, etc.”

It seems to us that it was the intention of the Supreme Court to make an exception of the case of Rice, and to decide it finally. It is stated that the findings of facts “ are sufficiently full to present the question” which was considered and decided. It is true that Judge Willard was in error when, in delivering the judgment of the court, he stated “that the findings had not been excepted to;” but, after hearing the testimony upon which the report was based, and full argument thereon, the judgment of the court surely cannot be impaired by tbe fact that the then chief justice who prepared the judgment had in such voluminous brief overlooked the fact that the findings had been excepted to by the plaintiff, but not by the co-defendants of Rice!

The facts considered by the Supreme Court have not been shown to be incorrect, but it is simply claimed that the alienation which was declared was “ not a bona-fide alienation, and that the mortgagor was not out of possession so as to defeat the claims of creditors of the ancestor.” As it seems to be admitted that the court passed upon the question of alienation, the circumstances of the case show, and the judgment expressly declares, that the alienation spoken of' could be no other than that contemplated by the statute. The judgment that the mortgage, in connection with what was done under it, worked an alienation under the statute of 3 and 4 W. and M., was in effect a judgment, also, that such alienaUon was bona fide. There could be no alienation under that statute except a bonafide alienation, which placed the land beyond the reach of the creditors of the ancestor.

It must be kept in mind that the mortgage of Rice contained an unusual covenant allowing the mortgagee, upon default, to talee possession. It was very nearly an absolute conveyance at first. That covenant was made when the mortgage was executed in 1875, and not on January, 1876, when it was known that "Warren was about to sue and he took possession. In 1875, when the mortgage was executed, Rice had the right to exact his own terms as the condition upon which he would loan his money. The covenant in the mortgage expressed these terms. If he had then taken an absolute conveyance, would it not have been a bona-fide alienation % The fact that at that time he had notice of the claim of Thomas was not enough to make the alienation mala fide.

The question as to the bona fides under the statute is not identical with that of the equitable plea of purchaser for value without notice.

This court, following the English cases, has held in Smith v. Grant, 15 S. C. 136, that mere notice of debts against the ancestor is not of itself sufficient to make an alienation by an heir or devisee mala fide under -the statute. In that case the alienation was made through a bankrupt court by a devisee, who was at the time also executor of the ancestor, and had been actually sued as such, but not as heir. The alienation in Richardson v. Chappell, was also made by those who were the executors of the ancestor, and had notice of the debt. There is no analogy between this case and Lowry v. Pinson, 2 Bail. 321, cited by the referee. In that case Pinson purchased and paid for the land of his brother, in order to enable him to run away, and thereby evade an action which was about to be brought against him for a breach of promise to marry. In this case the facts show no such combination on the part of Rice and Raymond to defraud the creditors. "What Rice did in January, 1876, was not done in combination with Raymond, but was his own act in enforcing rights acquired previously. Rice did no more than an honest creditor had the right to do —that is to say, acting upon rights previously secured, to take possession, and thus save himself from impending ruin. We agree with the Circuit judge, that the claim of A. Gr. Rice was conclusively determined by the judgment of this court.

The mortgagor, H. II. Raymond, being out of possession of the lands covered by Rice’s mortgage, the mortgages covering the same lands to the executors of Poincignon operate also as an alienation.

The only remaining question is that which was “opened” by the decree, and referred back by this court, whether the mortgagor, H. H. Raymond, was, as to any of the other mortgages, out of possession before action brought against him as heir,'January 17, 1876. The referee reports that, as matter of fact, he was not out of possession as to any of the mortgagees, and the Circuit judge concurs with him as to all of these except Rice, whose case has been disposed of. In the case of such concurrence this court, as a rule, will not disturb the finding, so -far as it is based upon a question of fact.

It is contended, however, that H. H. Raymond was out of possession as mortgagor by operation of law, as to the parcels of land, of which he executed two mortgages, viz., lot No. 262 King street, first mortgaged to Ellen Barker, trustee, June 28, 1870, and afterwards July 1, 1873,.to Anna Dora Fleming; and lots No. 342 and 344 King street, first mortgaged to executors of J. C. Otjen, January 15, 1872, and afterwards July 27, 1875, to "W. J. Gayer.

This is certainly a question of novel impression. If the view suggested should prevail, the mortgagor might be held to be legally out of possession, whilst he was in fact in possession. The act of 1698, “ To prevent deceits by double mortgages” (2 Stat. 137), provided: “If it so happens there be more than one mortgage at the same time by any person of the same lands and tenements, the second mortgagees which have not registered or recorded their mortgages . . . shall have power to redeem, etc. And any person or persons which shall mortgage the same lands ... a second time, a former mortgage being in force and not' discharged, shall have no power or liberty of redemption in equity or otherwise.” The act of 4 and 5 W. and M. (2 Stat. 534, 1712) provided: “And if the said mortgagor shall mortgage again the same land, and shall not discover to the said second or other mortgagee in writing under his or their hand, that then and in that case the said mortgagor shall have no relief or equity of redemption against the said second or other mortgagee . . . and shall hold and enjoy the premises freed from the equity of redemption ... as fully as if the same had been an absolute purchase.”

The act of 1791 (5 Stat. 169) changed entirely the character of a mortgage, making it merely a • security for a debt instead of a conveyance on condition, declaring that the legal title should remain in the mortgagor, and then provided that “ when the same lands are mortgaged at divers times, the debts meant to be secured by such mortgages shall be paid in the order the same are recorded, etc.”

The law stood in this way until our General Statutes were adopted in 1872. It does not appear that there ever was an express repeal of the provision of the act of 1698, which imposed a forfeiture of the right to claim the equity of redemption for giving a second mortgage, but the subsequent acts giving the mortgagor the legal title, declaring a mortgage a security for a debt, and in case of double mortgages directing that tbe debts shall be paid in the order in which the mortgages are recorded, were manifestly inconsistent with that provision, which was thereby superseded and rendered obsolete, if not repealed by implication. This view is confirmed by the fact, that no trace whatever of the doctrine can be found in the reports svnce 1791, now nearly a century, although in that time many cases were before the courts in which two mortgages on the same property had been executed. In 1806, Duncan v. Fisher, 2 DeS. 369; in 1852, Mathews v. Preston, 6 Rich. Eq. 307; in 1854, Boyce v. Boyce, Id. 304; Reeder & Davis v. Dargan, 15 S. C. 175; Gibbes v. Greenville and Colombia R. R., 13 S. C. 228, and in 1878, Simons v. Bryce, 10 S. C. 363; and in this last case both mortgages were executed after the General Statutes were adopted in 1872.

It said, however, that the General Statutes (1872) repealed all these old statutes, and re-enacted only that part of the act of 1798, which declared “ every person or persons who shall mortgage the same lands and tenements a second time, the former mortgage being in force and not discharged, shall have no power or liberty of redemption in equity or otherwise” (Gen. Stat. 121); and it is ingeniously argued, that as the second mortgages in this case were executed after the adoption of the General Statmtes, this provision therein revived cannot now be said to be antiquated or to have gone into the General Statutes by accident or mistake, and is applicable to them. It is true the provision was re-enacted, and on the statute-book from 1872 to 1878, and must be considered; but the General Statutes at the same time re-enacted the act of 1791, which has long been regarded as the settled law of the state, and with its whole intent and scope the provision aforesaid was inconsistent and repugnant, and therefore inoperative, and was expressly repealed in 1878 (16 Stat. 335).

It was further contended that Raymond was out of possession in fact as to the lands mortgaged to ~W. J. Gayer, because Raymond had assigned the rents to Gayer. It does not appear that this mortgage had any covenant as in that of Rice, authorizing the mortgagee to take possession. The effect of the assignment of the rent was considered by the Supreme Court, which held that “ in order to determine whether that transac-tion was of such a nature as to amount to a surrender of possession by the mortgagor to the mortgagee there should have been a finding of fact whether such was the aet a/nd intent of the parties.” And accordingly the matter being thus “ opened,” the referee reconsidered it and reported as follows: “ The whole testimony shows that Mr. Gayer did just what under the assignment he had a right to do, to collect and secure the rents from the King street property, and it shows nothing more. He employed an agent, and the payment of the rent to him, if known to Raymond, was only what was contemplated by the assignment. There is no allegation or proof that Gayer or King, his agent, was acting adversely to Raymond, or that Raymond'ever contemplated or agreed to anything more than the collection of the rents and the retaining of the same by Gayer. In my opinion, there is no testimony, even admitting that of Mr. Gaye2’, to prove that the mortgagor, Raymond, surrendered possession of the mortgaged premises to the mortgagee Gayer, or that it was the act and intent of- Raymond so to do, and I so find, etc.” In this findiiig, the Circuit judge concun-ed, and we cannot say that it was error.

It was also contended that Raymond was out of possession as to the lands mortgaged to Douglas Nisbit, guai'dian. Upon this mortgage an action of fo2-eelosure had been comme2iced in September, 1875, against H. H. Raymond, and "William M. Thomas made a party. He urged as a defence against foreclosure» the CaiToll decree of 1868, at Greenville, and that an execution had been lodged in Chai’leston. The issues were referred to W. P. DeSaussure, Esq., who, among other things, reported “ that as between the parties to the original suit, it (the Carroll decree) may constitute a general lien upon the property formerly of Mary Raymond, but which cannot be enforced to the prejudice of subsequent lien creditors or purchasers without notice.” Judge Reed confii'med the report, and adjudged that “the exceptions filed by the defendant William M. Thomas, and overruled by the referee, be overruled by this cou2*t, and it is adjudged, ordered, and decreed that the defendant, William M. Thomas, having failed to produce any evidence of an enrolled decree pursuant to the act of 1840, has failed to show a, judgment which could constitute a lien upon the mortgaged property as against the plaintiff a third party, and that his claim to hold such lien be subordinated and postponed to the mortgaged lien held by the plaintiff.” There was no appeal from this decree, but we do not consider that it adjudged the question now before the court. The decree was rendered December 4, 1875, before Warren had brought his action against H. H. Raymond,"'as hei/r im, possession. Considering the property as belonging to H. H. Raymond, which they had a right to assume until action brought, it was simply a decision as to priority of liens as against him, and we have hereinbefore announced the same proposition, that all the judgments against TI. H. Raymond, including that of Thomas without lien, must yield priority to the mortgages, but that is very different from the question now made by the creditors of Ma/ry Bapmond against H. H. Raymond as heir in possession of her property. The point now in issue was not.decided. Ha/rt v. Bates, ante, p. 35

The sale was ordered January 6th, before, but was not actually made until after Warren had brought his action and made Nisbit a party. “ There can be no doubt that when property descended is mortgaged by the heir, and such mortgage is foreclosed and th & property actually sold under a decree of foreclosure, it is an alienation.” But the title of the mortgagor is not divested until the sale is aci/aally made. The referee finds that “no sale was made until June 6, 1876, with full notice of this action then pending, and to which Nisbit was in fact a party. The property was bid in at the sale by Nisbit, the mortgagee. I find as to this mortgage, the mortgagor was not out of possession prior to the commencement of this action,” and the Circuit judge concurred in this finding.

But it is urged, that while the sale made under the decree of foreclosure June 6, 1876, may not have been an effective alienation as to Warren and Thomas, it was as to B. J. Whaley, trustee, who did not appear in the case as creditor of the ancestor until after the sale. It is true, that the question as to the effect of alienation depends upon the time when the creditor brings his action against the heir. The words of the statute are “before action brought.” In order to determine whether a transaction was an effectual alienation as to him it is necessary to inquire when B. J. Whaley brought his action against H. H. Raymond. Warren and Thomas were parties to the original bill, but Whaley was not. The first appearance of his claim in the case was in the report of the referee, December Y, 18YY. The referee in his second report, February 12,1880, says: “ Some questions have been made as to the time when this bond was proved before the referee. I do not see that it is material. Mr. Whaley was examined on May 4,18YY, as a witness, but not to prove the bond. No exception up to this time has been taken as to the time when the bond was proved in the case, and I report as a finding of fact, that it was properly and duly proved in the cause before me.” The first report held all the mortgages to be alienations, and there was then no occasion to except.

The view of the referee as to the immateriality of the time the bond was proved most probably was, that the suit of Warren was in effect also that of Whaley. The complaint did state that it was “ in behalf of himself and all other creditors of Mary Raymond, deceased, who should come in and contribute to the expenses of the action.” But this action as originally brought cannot be considered as in the nature of a creditor’s bill to marshall the assets of Mary Raymond, upon whose estate there was at that time no administration. It could be nothing more'than an action against the heir IT. H. Raymond then living, to make him liable for the debt of his a/ncestor. Each creditor of Mary Raymond had the same right, but we cannot see that in such action the interest of creditors was in common in such sense as to bring them within the principle of the rule that allows one of a numerous class of creditors jointly interested to sue for himself and others. There was no common fund which belonged to all equally. As in the lifetime of Mary Raymond, each was entitled to have his debt paid according to the diligence he might exhibit in obtaining priority.

In this view Warren’s action was his own, and not that of any other creditor, whom he did not expressly make a party. As was said by Chancellor Johnston, in the case of Johnson v. S. W. R. R. Bank, 3 Strob. Eq. 336: “ There is a difference among cases arising from their very nature which must govern the court in its rules of practice. There are cases where the very right under which the plaintiff claims implies that he is entitled to its enjoyment only in conjunction with other persons. There are cases where no such implication necessarily arises from the nature of the right, but yet it may be shown by the pleadings or proofs that other persons have in fact a cormmmifry of interest with the plaintiff. There are other cases still in which the claim set up by the plaintiff is in its nafrare exclusive of other persons. Of the latter class there are numberless instances, such as mortgagees or others holding a lien or suing to establish some peculiar interest, or seehing a priority of right. In such cases it would be error in the plaintiff to conjoin other creditors with him in the bill, or to sue in behalf of Imnself and other creditors. . . . He who comes to assert a peculiar or distinct claim cannot sue in conjunction with other persons. ... At law, certainly every creditor must sue for himself, and cannot join the case of any other creditor.” The action of the plaintiff, Warren, was under the statute against the heir then living, and could not be united with another creditor entitled to a similar action.

This was the state of the pleadings certainly up to the death of II. II. Raymond, and the grant of administration upon the estate of Mary Raymond, February 20,1877. After this change in the condition of things it seems that the complaint was amended and other parties brought in so as to make it substantially an action to marshal assets, call in creditors, and enjoin them from suing, etc. The claim of B. J. Whaley, trustee, was presented under the call for creditors. It does not appear at what precise time he proved his claim, and thereby brought this action, but it must have been after June, 1876, when the Nisbit sale in foreclosure was completed, and therefore operated as an alienation before action brought as to Whaley. The sale to Wilson of part of the premises thus sold was after the purchase by Nisbit, and the agreement to litigate for the proceeds instead of the land, made in order to quiet the title of the purchaser, cannot alter the case.

The same principle must be applied to the proceeds of the premises mortgaged to Mrs. Maria S. Hopkins. Her mortgage contained á power to sell and convey, yet she instituted suit against IT. II. Raymond to foreclose her mortgage, and as early as June, 1875, obtained a decree of foreclosure and sale. The order authorized IT. IT. Raymond to sell the premises, and he offered them for sale in December, 1875, but the purchaser failing to comply with the terms of sale, Mrs. Hopkins was authorized by order of court, January 14, 1876, to take the premises at the price bid for them, and under this order titles were executed to her on January 17, 1876, the very day on which Warren commenced his action. In the order directing titles to be made to Mrs. Hopkins this' paragraph was inserted: “And it being reported to the court that John D. Warren, a creditor of Mary Raymond, through whom it was alleged that the defendant, H. H. Raymond, has derived said property, may seek to subject the premises ordered to be conveyed to the payment of her debts, and that he is not a party to these proceedings, it is adjudged that said conveyance be without prejudice to his rights, and that the premises so ordered to be sold shall as to him be subject to the same rule which would have been applicable thereto in the hands of IT. IT. Raymond, the mortgagor.”

This order saved the rights of Warren to proceed as if no sale had been made, but we do not see how it can have that effect as to B. J. Whaley, trustee, who had not appeared in the case, who was not named as a crédito!, and did not present his claim until long after. By a subsequent arrangement with Thomas his rights against the alienation were also secured. We cannot discover, however, that any such arrangement was ever made with B. J. Whaley, trustee, and, as in this action the arrangement with Warren could not enure to his benefit in the matter of time, the conveyance to Mrs. Hopkins was as to Whaley an alienation “ before action brought.”

We conclude, therefore, that the proceeds of all the property of which Mary Raymond died seized and possessed, except that which -was alienated to A. G-. Rice, by II. II. Raymond, must be applied, if so much be necessary, in payment of her debts, as established herein, viz.: John D. Warren, B. J. Whaley, trustee, and William M. Thomas, according to the principles herein announced. That is to say, the proceeds of all the remaining parcels, except those covered by the mortgages of Nisbit and Ilopkins, in payment of all the three creditors in proportion to the amount of their claims, and the proceeds of the last-mentioned lots mortgaged to Nisbit and Hopkins in payment of the claims of Warren and Thomas.

It was stated at the bar that these claims would exhaust the whole proceeds of sale subject to their payment. If so, the order in which the proceeds should be applied is not important. We recognize the rule to be as stated in the case of the Savings Bank v. Creswell, 100 U. S. 638, where Mr. Justice Miller says : “ The court granted such relief as is authorized by the principle that where real estate is subjected to a lien in the hands of its owner, and he sells or mortgages separate parcels of that property subsequently to different persons and at different times, these parcels shall be subjected to payment of the lien in the inverse order of their alienation.” See Bank of Hamburg v. Howard and Garmany, 1 Strob. Eq. 178.

If Mary Raymond, the owner of this property, had executed these mortgages, that would certainly have been the rule, for the reason that each successive mortgagee would have had the right to throw subsequent mortgagees upon the property of the mortgagor not encumbered. The mortgagor -would certainly have been liable in that order, and each mortgagee “ sits in the seat of his mortgagor.” The matter is not so clear however where the mortgagor was not the owner of the property except sub modo, subject to the debts of the ancestor. As against these all mere encumbrances by the heir were simply void. Nothing could affect them short of alienation under the statute. But as the heir had a possible interest in the property which might remain after satisfying the debts of the ancestor, we think it safer that the proceeds of sale of the different parcels of the property should be applied in the inverse order, the last first, of the dates of the mortgages covering them respectively.

The judgment of this court is, that the judgment of the Circuit Court, subject to the modifications herein directed, be affirmed.