#### *Mary Jane Keckeley et al.*v. *John W. Moore et al*.

Charleston,

Jan’y, 1848.

Where the Court orders a sale of the real estate of an intestate to be made partition, under the Act of 1791, the title of a purchaser at such sale cannotbe affected by a prior judgment against one of the distributees, but is just as complete as if the sale had been made to satisfy a debt of the intestate.

*Before*Johnston, Ch. *at*Charleston, *June Sittings,*1846.

The bill in this case was filed for the purpose of making partition of the estate of the late James Moore, among his heirs, and on the 25th day of June, 1844, an order was made, requiring Mr. Gray, one of the Masters of the Court, to sell the said real estate, including a house and lot in Meeting-street, opposite the Rail Road Depository, and to make distribution of the proceeds among the children of the said James Moore. At the sale, Edward C. Keckeley, husband of Mary Jane Keckeley, one of the distributees, became the purchaser of the house and lot in Meetmg.street; and on the 16th day of June, 1846, a rule was served on Edward C. Keckeley, to show cause why he had not complied with the terms of the said sale — to which rule Edward C. Keckeley showed cause as follows:

Edward C. Keckeley, upon whom has been served a rule to show cause why he has not complied with the terms of sale in the above case, for answer thereto respectfully shows, that he did bid at the Master’s sale for the said lot of land in Meeting-street, the sum of twenty-nine hundred dollars, and was at that price the highest bidder for the same. But that he has not complied with the terms of sale, because he has been advised that a good and sufficient title to the said lot of land cannot be made by the Master. That the said lot of land was the property, of the late James Moore, who died intestate some years since, leaving surviving him his widow Ann Elizabeth Moore, and five children, viz : James 0. Moore, John W. Moore, Mary Jane Keckeley, the wife of the respondent, Henry Moore and William Moore, That James C. Moore and John W. Moore are married, and their wives are now living. That Mrs: Ann Elizabeth Moore, the widow of James Moore, is now dead, and that the bill in this case was filed for the purpose of making partition among the heirs of the said James Moore. That before the filing of the bill in this case, to wit: on the 30th day of November, in the year 1840, John W. Moore and James C. Moore, as co-partners, confessed judgment in the sum of five thousand dollars, with interest, to Mrs. Ann Elizabeth Moore, who subsequently assigned said judgment to J. McMillan & Co. and J. Dunovant & Co., for the purpose of securing to them payment of the sum of fitteen *22hundred dollars. That the execution upon said judgment was ]0dged in the office of the Sheriff of Charleston district, with orders to levy, on the 16th day of February, 1846, which jeyy was accordingly made. That the said order and levy in pursuance thereof were subsequent to the decree in this case, but prior to the sale of the premises by the Master in Equity. And that the sale by the Sheriff was stayed by a notice or order from Mr. Gray, the Master of the Court. And this respondent submits that the shares of John W. Moore and James C. Moore, in the said lot of land, are bound by the lien of the said judgment.

And this respondent shows, for further defect in said title, that the wives of John W. Moore and James C. Moore, now living, are entitled to dower out of their shares in the said lot. And this respondent submits, that he is willing to comply with the terms of sale, provided the shares of John W. Moore and James C. Moore in the purchase money be applied, under the order of the Court, to the lien of the aforesaid judgment on the land, and that the dower of the wives of the said John W. Moore and James C. Moore be also satisfied out of the purchase money,- — otherwise he prays to be released from the purchase.

Brown & Porter, Solicitors for Edward Keckeley.

The following reply to the cause shown by Edward Kecke-ley, was made by William Moore, one of the parties in interest.

William Moore, one of the parties in interest to this suit, in reply to the cause shown by Edward C. Keckeley, why he has not complied with the terms of his purchase of the house and lot of land referred to in the pleadings, at the sale of J. W. Gray, Esq., Master in Equity, begs leave to state that the judgment referred to by the said E. C. Keckeley, as confessed by James C. Moore and John W. Moore to Elizabeth A. Moore on 30th November, 1840, was given for cash loaned by Elizabeth A. Moore, administratrix of James Moore, deceased, from the funds of the estate of James Moore, and on the partition of the estate of the said James, one thousand dollars of this' judgment was allotted to this party .William Moore, one of the distributees of the estate, in order to equalize his share with the other distributees. And upon the settlement of the estate of James Moore, deceased, by the decree of this Honorable Court, on 25th June, 1844, it was ordered and decreed, that out of the sales of the real estate of James Moore, the sum of $968 68, with interest from 18th November, 1836, be deducted from James C. Moore’s one-fifth part of the estate of James Moore, by the Master in Equity, and paid over to William Moore, in order to equalize the shares of the children of James Moore : the- fund from the sale of this house and lot of land is now the only remaining fund, for the satisfaction of the decree in this case.

*23The said William Moore, therefore, submits to this Honorable Court, that the decree of the Court, for the division the estate of James Moore among the distributees, and the arrangement for the equalization and family division, must take priority of any claim which an individual creditor of James C. Moore could setup against him; the more especially as that creditor was the administratrix of the estate of James Moore and the debt was created by loaning part of the funds of the estate to one of the distributees, and all parties were privy to the family arrangement, that this advance of funds to James C. Moore, was .to be adjusted out of his share of the estate upon its final settlement. The assignee of the judgment must take it subject to all the. equities between the parties in interest.

H. A. Desaussure, Solicitor for William Moore.

His Honor, Chancellor Johnston, ordered the rule to be made absolute against Edward C. Keckeley, the purchaser, and an appeal was taken, upon the following ground:

Because the judgment confessed by John W. Moore and James C. Moore to Mrs. Ann Elizabeth Moore, and by her assigned to McMillan & Co. and Dunovant *&*Co., as well as the claims of the wives of the said John W. Moore and James C. Moore, for dower out of the land, are subsisting incum-brances on the said house and lot; and the purchaser ought not, therefore, to be required to comply with the terms of sale, unless provision be made, by order of the Court, for the discharge and satisfaction of the said incumbrances out pf the purchase *money.*

Brown & Porter, Solicitors for E. C. Keckeley.

Dxinkin, Ch.

delivered the opinion of the Court.

The Act of 1791 prescribes the mode in which the real, as well as the personal estate, of an intestate, shall be disposed of. Among other things it is declared, that no child shall receive any share of the estate, who has been advanced by a portion or portions, equal to the share of the other chiidren, and if the advancement be not equal, he shall receive only so much as will produce equality. Provision is also made for partition of the estate, and power is vested in the Court to direct a sale of the entire real estate, if it cannot be advantageously divided. The only question is, whether the title of a purchaser at such a sale can be affected by a prior judgment against one of the children. It is quite manifest that, until partition made, it is impossible to determine whether the child will be entitled to any, or to what portion, of the estate. The right, whatever it be, is the creature of the Act of 1791, and must be held in subordination to the provisions of that law. If a sale for partition be ordered, the title of the purchaser is just as complete as if the land had been sold to *24satisfy a debt of the intestate. To require the judgment or 0^6|. pen creditors of all the distributees to be made parties to a suit for the partition of the estate of an intestate, would introduce a novelty in the practice of the Court, and would encumber the proceedings with a delay and expense not calculated to promote the final settlement and adjustment of estates between the parties in interest, which is a leading object of the Act of 1791.

The Court is of opinion, that the cause shown by the purchaser was insufficient, and that the rule was properly made absolute, and the appeal is dismissed.

The whole Court concurred,

*Rule made absolute.*