#### *W.*H. B. Richardson and others *vs.*Joseph S. Inglesby and Others.(a)

*Sheriff's sale*— Satisfaction—Constrúction *of an Order of Court*— Administration *of Estates*— *Assets*— *Personal estate primary fund for payment of debts*— Sureties *on Administration*t *bond have no Equity to follow real estate*— Trusts.

Under *ft. fa.*against an administratrix, slaves were levied on and sold by tbe Sheriff for a sum sufficient to satisfy the debt. The creditor, without the knowledge or consent of the administratrix, made a private arrangement with the bidder, who was one of the distributees, by which the latter was allowed to take off the slaves without paying his bid, under a promise that he would pay the debt or restore the slaves to the Sheriff to be resold on the next sale-day. He failed to comply with his promise; further time was given him by the creditor, and he remained in possession of the slaves, ostensibly as his own property and subject to the claims of his own creditors, for over four years, when they were resold by the Sheriff, and the sale being forbidden by various persons, they brought only a nominal sum. The bidder was insolvent at the time of the first sale, and remained so until the resale *:*— Sold, that, as against the administratrix and the sureties on her administration bond, the execution must be regarded as satisfied.

A private arrangement by an execution creditor with a bidder at Sheriff’s sale by which the bidder obtains possession of the chattels sold without payment, will of itself satisfy the execution to the amount of the bid; and if there be a contract that the bidder will pay the bid or restore the chattels to the Sheriff to be resold, the creditor must look to that for reimbursement. The effect, it seems, would be the same if the Sheriff of his own head were to make such an arrangement with a bidder.

The formalities to be observed in the conduct of a Sheriff’s sale are intended for the benefit of all parties interested, and' can be waived only by their common consent.

In 1837, three years after an intestate’s death, a writ of partition was issued by the Court of Equity to divide the estate between his distributees, and in the return the realty was appraised at $17,000, and the personalty at $61,000. There were some debts of the intestate then unpaid, amounting to less than *60§4,000. The order confirming the return provided that the property should be subject, in the hands of the distributees, to the liens of any judgments or executions, which might thereafter be recovered against the administra-trix, and be liable to be sold by virtue *thereof:*— Held, that as the personal estate was more than sufficient for the payment of the debts, the adminis-tratrix had no right to insist that any liens for the benefit of creditors, affecting the lands partitioned, should be provided for; and therefore that the order, as it did not in terms include the lands, should not be construed as having been intended to make provision for liens upon them.

Whatever may be the rule at law, in equity the personal estate is the primary fund for the payment of an intestate’s debts, and where the personal estate was more than sufficient for that purpose, sureties, on the administration bond, who have been compelled to pay a debt after judgment in an action on the bond suggesting a *devastavit,*have no equity to follow the real estate, especially where the title has passed out of the heirs.

No particular form of words is essential to the creation of an express trust, but where one is alleged to have been created it is essential that an intention to create it should appear. Where the intention does not appear, no form of words will be sufficient.

BEFORE CARROLL, CH., AT SUMTER, JUNE, I860.

The bill in this case was exhibited-by *W.*H. B. Richardson, administrator *de bonis non*of John R. Spann, Sr., deceased, Henry L. Pinckney, Jr., who had succeeded to the whole beneficial interest in the estate of the said John R. Spann, Sr., and Richard Russel Spann, plaintiffs, against Joseph S. Inglesby, John R. Spann, Jr., Hastin Jennings, S. Porcher G-aillard and Henry Spann, defendants. The principal objects of the bill were to obtain a decree perpetually restraining the defendant, Inglesby, from the further prosecution of a writ of *scire facias*which he had sued out of the Court of Common Pleas for Sumter District against the plaintiff, Richardson, administrator as aforesaid; declaring that a certain contract made on the 30th December, 1812, between the defendants, John R. Spann, Jr., Jennings and Gaillard, created a trust-fund for the benefit of' the creditors, then existing, of Charles Spann, Jr., deceased; and that the lands of which the said Charles Spann, Jr., had died seized, especially a plantation known as-Buzzard *61Boost, which had become the property of the defendant, Henry Spann, were subject, under and by virtue of a decree in equity of June Term, 1837, to the liens of two judgments against Eleanor Spann, administratrix of the said Charles Spann, Jr. — one in favor of the defendant, Inglesby, and the other in favor of the Bank of Charleston; subro-gating the plaintiffs, Pinckney and Spann, who had paid tbe judgment of the Bank of Charleston, to the rights of the creditor in said judgment, as against said supposed trust-fund, and to enforce the said supposed lien; and, further, if the defendant, Inglesby, should not be altogether restrained from the further prosecution of his said writ of *scire*facias, requiring him, in the first place, to exhaust his supposed remedies as against said trust-fund, and under his said lien upon Buzzard Boost.

The pleadings, with tile exhibits and the evidence, were very voluminous, but the following statement contains, it is believed, all the facts bearing upon the questions considered and decided by the Court of Appeals.

Charles Spann, Jr., died in the year 1834, intestate, leaving a large real and personal estate. The real estate consisted, besides some other parcels of land.not necessary to be here mentioned, of two plantations lying in Sumter District, one known as Buzzard Boost, and the other as Orange Grove — the last named having two adjoining tracts attached to it, one called the Britton Hair tract, and the other the Eullerton tract; and the personal estate consisted principally of slaves. His heirs at law and distributees were his widow, Eleanor Spann, and his six .children, Michael C. Spann, Charles C. Spann, James T. Spann, John B. Spann, Jr., Caroline M. Spann, who afterwards intermarried with ■William Bice, and Mary E. Spann. Administration of the personal estate was granted to the widow, and John B. Spann, Sr., and the plaintiff, Bichard Bussel Spann, became the sureties on her administration bond.

*62Some two or three years after the death of the intestate, a bill was filed in the Court of Equity for Sumter District by Michael C. Spann, Charles C. Spann, and James T. Spann, against Eleanor Spann, John E. Spann, Jr., Caroline M. Spann, and Mary E. Spann — the three last named being minors — for partition of the estate and account. John E: Spann, Sr., was appointed guardian *ad litem*of the minors, and a writ of partition was issued to divide the whole estate, real and personal. The Commissioners made a return, in which they stated, amongst other things, that they had allotted Buzzard Eoost to John E. Spann, Jr., Caroline M. Spann, and Mary E. Spann, as tenants in common, and Orange Grove, with the Britton Hair and Fullerton tracts, to Eleanor Spann; and that they had appraised the whole real estate at $17,000, and the whole personal estate divided by them at $61,000. At June Term, 1837, an order confirming the return was made, as follows:

“ On motion of De Saussure & Garden for complainants, and by consent of defendants, it is ordered that the report of the Commissioners in Partition in the above case be confirmed.

*“*It is further ordered that, as there are outstanding debts against the estate of Charles Spann, Jr., deceased, that the property of the said Charles Spann, Jr., divided, shall be subject, in the hands of the distributees, to any judgments or executions which may be obtained against the adminis-tratrix of Charles Spann, Jr., deceased, for debts due by the estate.

“ That the complainants and guardians of the children shall give bond and security to the administratrix for the production of the property allotted to them, to satisfy any such j udgment or execution which should be recovered.

“That the negroes and other property allotted to the complainants be delivered to them.

*63“ That *the*slaves and the other property allotted to the minors be retained by the said administratrix for the said minors, until they shall respectively attain the age of twenty-one years or marry, or until a legally appointed guardian shall give bond and security according to law, when the same shall be delivered to such guardian; and it is further ordered and decreed that in case any suits, judgments, or executions, either in law or equity, be obtained against the said administratrix for debts due by the estate, that the same shall have a lien upon the slaves or other property of the estate of Charles Spann, Jr., deceased, allotted and delivered to each, and shall be subject to be sold under and by virtue thereof.”

So far as it appeared in this case, the only outstanding debts of the intestate which then existed were the two debts, due the Inglesbys and the Bank of Charleston, hereinafter mentioned, amounting, at that time, to less than $4,000.

Under thq above order, the distributees went into possession of their respective shares of the estate, the adults immediately, and the infants as they respectively came of age. The forthcoming bonds, directed to be given to the administratrix, were never exacted by her.

In 1849, under proceedings in equity, to which John E. Spann, Jr., William Eice, and Caroline M., his wife, Mary E. Spann, Eichard Eussel Spann, and others, were parties, Buzzard Eoost was conveyed by the Commissioner of the Court tp Leonard White, after whose death it was sold for partition as part of his estate and purchased by J. L. Bartlett, who, in 1856, conveyed it to the defendant, Henry Spann.

On the 12th June, 1841, two judgments were recovered in the Court of Common Pleas for Charleston District against Eleanor Spann, administratrix of Charles Spann, Jr. — one by the Bank of Charleston for $1,117.14, and the other by *64Mary Inglesby, since deceased, and Joseph S. Inglesby, executrix and executor of William Inglesby, deceased, for $2,422.41; and, on the 21st day of the same month and year, writs of *fieri facias*on said judgments, as well for the amounts aforesaid as for interest to accrue and costs, were lodged with the Sheriff of Sumter District. The Sheriff returned each of said writs *nulla*Iona, and they were then withdrawn from his office, but were returned to it before the sale of the 6th February, 1843, hereinafter mentioned.

Before the 30th day of December, 1842, the title of Eleanor Spann to Orange Grove and the Britton Hair and Fullerton tracts had been vested in the defendant, Hastin Jennings, who held the same, as he stated in his answer, for the benefit of John B. Spann, Jr. On that day, the defendant, S. Porcher Gaillard, desiring to have certain funds, held by trustees for the separate use of his wife, invested in Orange Grove and the said tracts of land, entered into a written contract to that end with the said Hastin Jennings and John B. Spann, Jr., a copy of which is as follows:

“ Heads of an agreement between S. Porcher Gaillard of the one part, and John B. Spann and Hastin Jennings of the other part.

“The said John B. Spann and Hastin Jennings agree to sell a tract of land, containing in the whole eight hundred and fifty acres, made up of a tract of eighty-one acres conveyed by 0. Spann, Sr., to 0. Spann, Jr., on which he settled the place called Orange Grove, a tract of eighteen acres purchased by 0. Spann, Jr., from Britton Hair, and a tract of seven hundred and, fifty acres called the Fullerton tract; and as there are encumbrances on the said land, for the purpose of clearing them off they agree that the whole shall be levied on by the Sheriff under the case of *Inglesby and others*vs. *Eleanor Spann,*administratrix of C. Spann, Jr., and sold under that execution; that whatever sum it may sell for be paid by the said S. Porcher Gaillard out of the cash payment to be paid by him as stated below — the *65said executions to be satisfied; tbat four hundred acres, part of the said tract mortgaged by M. 0. Spann to E. Spann and assigned to the bank, be sold by the Sheriff under some execution against'the said M. 0. Spann, and that the said mortgage be settled with the said bank, and transferred, together with the title from the Sheriff on the sale by him, to the said S. Poroher Gaillard; that all judgments against the said John R. Spann older than the title to the said land of the said Hastin Jennings shall be paid and satisfied; and upon clearing away of the encumbrances aforesaid, as above stated, the said Hastin Jennings is to make a title to the said tract of eight hundred and fifty acres, with a warranty thereof, to the said S. Porcher Gaillard, and also a mortgage to him, for the purpose of securing that warranty, of a tract of land called the Potts tract, and also a tract called the Haynsworth tract, with the exception of such parts of the last-mentioned tract as have been sold to Bowen and Redford ; which two tracts, so to be mortgaged, contain about six hundred acres.

*“*And the said S. Porcher Gaillard, on his part, upon the performance as aforesaid of their agreement by the said other parties, agrees to pay in cash for the said land the sum of four thousand dollars, and to give his bond for the payment of two thousand dollars, with interest, on the first day of January, 1844, provided all debts against the estate of 0. Spann, Jr., deceased, shall have been then settled; and if not, that he is to hold in his hands the said two thousand dollars and the interest thereon till all such debts shall be settled.

“ Mr. Gaillard to have possession on the 15th January next.”

In order to relieve Orange Grove and the Britton Hair and Fullerton tracts of the liens upon them of the judgments aforesaid, supposed to have been created by virtue of the order in equity of June Term, 1837, they were *66levied on by tbe Sheriff under the writ *of fieri facias*of the Inglesbys aforesaid, and advertised to be sold on sale-day in February, 1843. On that day John E. Spann, Jr., Charles 0. Spann, Eichard Eussel Spann, and an agent of the In-glesbys attended at the place of sale. Before the lands were offered by the Sheriff John E. Spann, Jr., and Charles 0. Spann gave the Sheriff a written levy, under the executions of the Inglesbys and the Bank of Charleston, of fourteen slaves which had been allotted to some of the distributees in the partition of the estate of Charles Spann, Jr., in 1837. This was done in pursuance of an arrangement which John E. Spann, Jr., with the consent of the Sheriff, had made with the agent of the Inglesbys, by which it was agreed that a sale of slaves, sufficient to satisfy Inglesby’s execution, should be made by the Sheriff; that John E. Spann, Jr., should become the purchaser, and, without paying his bid, should be allowed to take the slaves home with him, and that he, Spann, should within one month pay the debt due to the Inglesbys, or, failing to do so, restore the slaves to the ■ Sheriff to be resold on the next sale-day.

The witness who testified to the facts just stated, and who was the Sheriff’s agent, and managed all his official business, 'further testified in substance as follows: I was the agent of the Sheriff, and conducted the sales made on the 6th February, 1843. Before they commenced, Eichard Eussel Spann stated that he was interested in the executions being paid, and ascertained from me how much they amounted to. The slaves were put up first; John E. Spann, Jr., and Eichard Eussel Spann were the only bidders. They were sold, some separately and some in lots. John E. Spann, Jr., was the purchaser, and took the slaves home with him. The bids amounted in the aggregate to $3,965, which nearly covered both executions. John E. Spann, Jr., and Eichard Eussel Spann were both regarded by me as insolvent. The latter, with the assist-*67anee of tbe representatives of John it. Spann, Sr., whose estate was a very large one, could have raised any reasonable amount of money. If the slaves had been resold on the next sale-day, I do not think any loss on the resale could have been collected; but I believe they would have sold for more. Within a few days after the sale I received a letter, which I cannot find, from an agent of the Inglesbys, instructing me to stay proceedings. I did not advertise for sale-day in March, which I would have done if I had not received that letter. On the 22d April, 1848, I received another letter from the same agent, which stated [letter produced] that negotiations for a settlement of the debt due the Inglesbys were still pending with John E. Spann, Jr., and that he, the agent, “understood that no action was to take place in the matter until Mr. Spann’s final reply to his proposition.” I was first ordered to proceed for a resale in October, 1845. A letter dated October 27, 1845, was received by me from the agent who attended the sale in February, 1843, [letter produced,] which instructed me as follows: “You will forthwith cause the negroes sold to Mr. John R. Spann by you in February, 1843, as the agent of the then Sheriff, under the executions of the Bank of Charleston and Inglesby and Inglesby against adminis-tratrix of Charles Spann, and not paid for by the purchaser, to be resold at the risk of the former purchaser.” John R. Spann, Jr., at first refused to deliver up the slaves, and an action of trover was commenced against him, and Charles C. Spann, (I think,) and the slaves secured by a trover bond. Two other letters [both produced] were received by me from the same agents — one dated December 16, 1845, and the other January 28, 1846, urging me to seize the negroes. John R. Spann, Jr., afterwards delivered up all the negroes, except perhaps four, the amount of his bids for which with interest he paid. Those delivered up were turned over by me to the then Sheriff, who *68resold them on the 1st November, 1847. They sold very low. The resales were forbidden by Hastin Jennings and O. 0. Jackson. The property of the distribu-tees of Charles Spann, Jr., except tbe daughters, bad become much encumbered. At various sales made of tbe property there was much forbidding, and many persons distrusted tbe title. Much of it sold very low.

Another witness testified that in February, 1843, Eichard Eussel Spann bad in bis possession a considerable amount of' property' in which be bad a life-estate; that be was embarrassed, but bad credit, and could have raised four thousand dollars.

It further appeared that after tbe negroes bad been bid off by John E. Spann, Jr., in February, 1843, Orange Grove and tbe Britton Hair and Fullerton tracts of land were put up by tbe Sheriff, and bid off by Hastin Jennings, at tbe price of $10, who, having paid bis bid and received a Sheriff’s conveyance, shortly afterwards conveyed tbe same to tbe trustees of Mrs. Gaillard; and that S. Porcber Gaillard thereupon paid $4,000, tbe cash portion of tbe purchase-money, under tbe agreement of tbe 30th December, 1842, and some short time thereafter tbe credit portion, but that no part of either payment was applied to tbe debts of Charles Spann, Jr.

Of tbe fourteen negroes purchased by Jobn E. Spann, Jr., in February, 1843, be delivered ten to tbe Sheriff on tbe 1st November, 1847, and they were resold at tbe nominal price of $150. On tbe same day be paid bis bid, with in terest thereon, on tbe other four, and tbe two amounts, in tbe aggregate about $2,100, were applied to tbe executions of tbe Inglesbys and tbe Bank of Charleston, leaving a large balance on each of them still unpaid.

After tbe resale, tbe Bank of Charleston brought an action on tbe administration bond, in tbe name of William Lewis, ordinary, against W. H. B. Eichardson, adminis*69trator *de bonis non*of John E. Spann, Sr., who had been dead several years, alleging a *devastavit*by the administra-trix of Charles Spann, Jr., and in 1853 recovered judgment for the penalty, and obtained an assessment by a jury of its damages, to the amount of $1,058.64, the balance then due on its execution against the adminis-tratrix, (see the case reported, 6 Eich. 382.) The amount thus assessed was paid in equal parts, by Henry L. Pinck-ney, Jr., and Eichard Eussel Spann.

Eleanor Spann, John E. Spann, Jr., and the other dis-tributees of Charles Spann, Jr., had all removed from the State, taking with them all the personal property they owned. It was not denied that John E. Spann, Jr., had become irresponsible before February, 1843, and that he remained so until he left the State.

In 1857, Joseph S. Inglesby, survivor of Mary Inglesby, sued out of the Court of Common Pleas for Sumter District a writ of *scire facias*on the judgment of William Lewis, Ordinary, against W. H. B. Eichardson, administrator *de bonis*non-of John E. Spann, Jr., requiring the defendant, Eichardson, to show cause why the said Joseph S. Inglesby should not have the balance due him on his judgment assessed as damages on the condition of the administration bond, and why execution should not issue for the damages to be so assessed; and thereupon this bill was filed.

The decree of his Honor, the Circuit Chancellor, is as follows:

Carroll, Ch. Of the facts involved, the great bulk will be found in the pleadings and testimony taken before the Commissioner, and the remainder in the notes of evidence taken at the hearing and accompanying this decree.

The question first to be considered is, whether the execution in favor of the executors of William Inglesby, deceased, should be credited with its ratable share of the aggregate *70price of the negro slaves sold under it by the Sheriff in February, 1843. If such credit be admitted, then the balance of the debt was undoubtedly discharged by the , subsequent sales by the Sheriff in 1847, and that execution is fully satisfied. Had the Sheriff delivered the negroes to the purchaser, J. E. Spann, Jr., without condition or reservation, the title would have vested in him, and the Sheriff would have been chargeable with the price at which they were struck offj though no portion of it in fact had been ever received. *Oochran*vs. *Roundtree,*3 Strob. 219. But the delivery was not unconditional. On the contrary, it was with the express stipulation, originally, that if the price bid was not previously paid, the negroes should be resold by the Sheriff on the succeeding sale-day. By paying a portion of his bid, and by delusive promises from time to time, John E. Spann, Jr., induced the attorney of Inglesby’s executors to forbear extending any order to the Sheriff to resell, until October, 1845. There is no semblance of variation or modification of the original contract of sale, except to that extent.

If in the sale of a chattel it is agreed by parol that, notwithstanding its delivery to the vendee, the title shall continue in the vendor till payment of the price, such contract is not invalid in law. *Dupree*vs. *Harrington,*Harp. 391. The Act of 1843 avoids verbal agreements of this kind, *“*as to subsequent creditors, and purchasers for valuable consideration without notice,” but leaves them in unimpaired force *inter paries.*The giving time for payment of the bid until the first Monday of the month succeeding the Sheriff’s sale, and its subsequent extension to October, 1845, were in effect no more than to postpone the resale of the negroes, which, under the Act of 1839, the plaintiffs in execution had the right to do. *State*vs. *Young,*10 Eich. 451. Certainly, as between the Sheriff, the executors of Inglesby, and the purchaser,’ Spann, the contract.of sale was valid and effectual. In respect of any interest in the slaves he *71had bid off it is manifest that J. E. Spann, Jr., until payment of the price, could claim neither title under the sale nor credit upon the execution. It is equally clear that the executors of Inglesby could not have held the Sheriff answerable for the price of the negroes, because of his permitting them afterwards to return into the possession of John E. Spann, Jr.

Inglesby’s executors were not only cognizant of this stipulation in the contract of sale and assenting to it, but in truth through their agent they had agreed to it in advance with J. E. Spann, Jr., and it was at their special instance and request that the Sheriff had acceded to it.

But it is urged that the Sheriff was in. default for not bringing suit against the purchaser, Spann, to compel payment of the price. Up to October, 1845, the Sheriff, in refraining from any proceeding to exact payment from J. E. Spann, Jr., appears to have acted under express instructions from the attorney of Inglesby’s executors. As early as the sale in February, 1843, Spann, the purchaser, was reputed to be, and probably was, insolvent. He had paid, however, shortly after the sale, a part of the price. After October, 1845, when Inglesby’s executors seem to have despaired of procuring further payment from him, they forbore having suit instituted against him, as may be inferred, partly from their confidence that a resale of the negroes would satisfy the balance of his bid, and partly from apprehension that such suit would be wholly unprofitable. Whether a suit upon his contract against the purchaser, Spann, would have availed any thing, may well be doubted. It does appear that some $6,000, the purchase-money of a tract of land of which Hastin Jennings held the legal title, were received by John E. Spann, Jr., or by him and Jennings, from the trustees of Mrs. Gaillard, wife of the defendant, Samuel Porcher Gaillard, $4,000, in February, 1843, and $2,000 in January, 1844. What became of this fund after passing into the hands of the vendors, *72does not appear. Whether, considering the pecuniary condition of John E. Spann, Jr., it was within his control in October,' 1845, or could have been reached by legal proceedings against him, if then instituted upon his contract of sale with the Sheriff, is matter of mere conjecture. It has not been suggested that the Sheriff was ever required by Inglesby’s executors to bring an action at law upon the contract of sale against .Spann, the purchaser. It is certain that they never instituted any legal proceedings against the Sheriff, to render him personally liable upon that account. The conclusion of the Court is, that for what remains due upon the execution of Inglesby’s executors, after admitting the credits for actual payments, the execution must be treated as still subsisting and unsatisfied, at least as between the plaintiffs therein and J. E. Spann, Jr.

The plaintiffs, as sureties for Eleanor Spann, upon her administration bond, have been constrained to pay a part of the execution debt due to the Bank of Charleston, and they maintain, that in order to be reimbursed, they are entitled to all the rights and remedies of'the bank under that ■ execution. This claim is in conflict with the assumption that the execution of Inglesby’s executors was satisfied by the Sheriff’s sales referred to. Their execution bore even date with that of the Bank of Charleston. If the one was satisfied by the Sheriff’s sale of negroes in February, 1843, and the subsequent sales in November, 1847, so also was the other, and in-that event it will result that payment of the execution in favor of the bank was made in truth by John E. Spann, Jr., and Charles C. Spann, and not by the plaintiffs.

It may be assumed that the result would have been the same if the executions referred to had imposed a personal liability upon John E. Spann, Jr. If so, then for what remains of the debt to Inglesby’s executors after deducting actual payments, this execution would be regarded as still *73open and unsatisfied, as against <J. R. Spann, Jr., had he been sole defendant therein.

But if an execution be unsatisfied as between the parties, it must be so treated in respect of all other persons, save only those to whom some injury would result from so regarding it. Whether the sureties to the administration bond of Eleanor Spann were injured in legal contemplation by the Sheriff’s sale in February, 1843, and the transactions of the parties connected with it, may be more conveniently considered in the sequel.

The plaintiffs, by their bill, contend, that by the agreement of December, 1842, between S. Porcher Graillard and J. R. Spann, Jr., and Hastin Jennings, respecting the sale of the tract of land of eight hundred and fifty acres, those parties constituted themselves trustees with a sufficient fund, being the purchase-money of said land, “to pay the several executions of the Bank of Charleston and of Inglesby — and that for the residue of their debt (if there be any thing due) the executors of Inglesby should be constrained to seek payment out of the fund in the hands .of the parties to that agreement, and that the plaintiffs should be reimbursed, in the same mode, the payments made by them on the execution of the Bank of Charleston.” It is indisputably clear that the sole purpose and meaning of the stipulations in the contract referred to, respecting the satisfaction of the debts against the estate of Charles Spann, Jr., the mortgage of the land made by M. C. Spann, and certain judgment debts against John R. Spann, Jr., were to discharge the land of all encumbrances and liens, whether present or prospective, and thereby assure to the purchasers, the trustees of Mrs. Graillard, a good and valid title. There was no rational motive to induce- the purchasers, or their agent, Graillard, to assume the office of mere “volunteers to take care of the interests of strangers, with whom they had no connection or understanding in relation thereto.”

*74The stipulations in question were intended for the benefit and protection of the purchasers exclusively, and not as security for the debts referred to, though such might be their effect incidentally. It was, therefore, entirely competent for the purchasers, when the purpose of such stipulations had been otherwise attained, to waive their perform- . anee. The executors of Inglesby could have no conceivable interest in the purchase-money, while in the hands of Gaillard, except by virtue of the stipulation in the agreement, that when the land should be sold by the Sheriff under their execution, the price at the Sheriff’s sale should be paid out of the cash portion of the purchase-money, and that price has accordingly been paid. After “ the encumbrances on said land had been cleared off”’ by sale under that execution, and other liens removed, and a title with certain safeguards executed, the residue of the cash portion of the purchase-money was to be paid; the remainder of the purchase-money, secured by bond, was to remain in the hands of Gaillard, the agent, till all the debts against the estate of Charles Spann, Jr., should be satisfied. Such are the terms of the agreement referred to. Surely they do not import that the debts in question were to be paid out of the purchase-money in the hands either of vendors or vendees, as a specific fund set apart for that purpose. The very reverse, indeed, seems to be implied, if not expressed, except as to so much as would suffice to pay the price of the land at the Sheriff’s sale proposed under .the execution of Inglesby’s executors. It does not appear to the Court that there was, by the agreement, any appropriation or disposition made of the purchase-money, except to the extent indicated, upon which a trust in the same can be established, in favor either of the Bank of Charleston or the executors of Inglesby.

It is further urged that though the transactions of In-glesby’s executors in connection with the Sheriff’s sale of *75February, 1843, may not have amounted to a satisfaction of their execution, yet they operated to enable J. E. Spann, Jr., to retain possession of the negroes sold, for a period of more than four years, and thereby to cast so much.of doubt and suspicion upon the title, that the negroes, although amply sufficient in value to pay their execution, brought at their resale a grossly inadequate price ; and that these irregular proceedings on the part of Inglesby’s executors which prevented the debt being satisfied out of that property, and their great delay in enforcing their execution against the other property of the estate of Charles Spann, Jr., deceased, will have brought serious injury upon the plaintiffs if they be held responsible for that debt, and ought to avail to relieve them of all liability for the same.

To estimate justly the force of this argument, it is necessary to consider in what relation Mrs. Eleanor Spann stood towards the debt due to the executors of Inglesby. The suit of Michael 0. Spann and others *vs.*Eleanor Spann, ad-ministratrix, and others, referred to in the bill, was for an account of her administration, and for partition of the lands and negroes of her intestate, Charles Spann, Jr., deceased. All the other assets of her intestate, it is to be inferred, were accounted for in the course of that proceeding. -

No equities springing out of her unadjusted accounts have been referred to as varying the liabilities of the parties in this behalf. By the order in that cause of June 6th, 1837, it was directed that the partition proposed by the return of the Commissioners should have effect, and that the negroes and other property allotted to the parties should be delivered to them, and be subject in their hands to the liens of any judgments or executions that should be recovered against the administratrix for debts due by her intestate, and that the other distributees should give bond and security to the administratrix for the production of the property allotted to them respectively, to satisfy such

*76judgments and executions. The distributees of Charles Spann, Jr., thus became ultimately and of right responsible for the judgments of the Bank of Charleston and the executors of Inglesby, in proportions corresponding with their shares in his estate. As between the distributees themselves, the said widow, Mrs. Eleanor Spann, was responsible to the extent of one-third of those judgment debts as if for her own proper debt, and beyond that proportion as if a surety for her co-distributees respectively. In like manner each one of her six children (assuming such to .have been their number) became chargeable with one equal ninth part of those judgment debts as if for his or her proper debt, and with the residue as if a surety for the other distributees respectively. But the whole estate had been committed to the charge of the widow, in her character of administratrix, and the primary trust imposed upon her was for the payment of the debts of her intestate. Outstanding debts appearing, the order adverted to of June 6th, 1837, could never have been obtained, except with her consent, and such consent is accordingly manifested in writing, over her own proper signature, appended to the order. By assuming the office of administratrix, and by the execution of her administration bond, she stood primarily liable to the creditors of her intestate. She was not authorized by the order in question to part with the property therein referred to, except upon the precedent condition that bonds with adequate surety should be executed for its forthcoming to satisfy the judgments and executions that might be recovered against her for debts of her intestate. Those bonds were required to be executed to her as indemnity against such debts. Had she exacted those bonds, or, in default of their being executed, held fast to the estate, the judgments subsequently recovered by the Bank of Charleston and the executors of Inglesby would have been paid by contributions in just proportions from the *77shares of the respective distributees. But she rejected the indemnity provided by the order, and delivered to her co-distributees their respective portions of the estate without exacting the required bonds. According to the statement of the bill, all the distributees of the intestate, Charles Spann, Jr., have *“*removed themselves and all their personal property beyond the limits of this State.” The payments made upon the execution of Inglesby’s executors by Charles C., and John R. Spann, Jr., largely exceeded the just proportion of that debt properly chargeable upon their respective portions of their father’s estate. The complaint of the plaintiffs is, that the whole residue of the judgment debt due to the executors of Inglesby could have been made with due diligence out of the negro slaves allotted to Charles C., and John R. Spann, Jr.

Let this be conceded, and how have the plaintiffs been injured thereby? They stand in no better position than would their principal, Mrs. Eleanor Spann, were she a party in their stead. If Charles 0., and John R. Spann, Jr., were within the jurisdiction of the Court, and of ability to pay the balance of the judgment debt of Inglesby’s executors, could Mrs. Eleanor Spann maintain her suit in this Court, to compel them to pay that balance in exoneration of. herself? The answer would be irresistible. The one-third part of that judgment debt is in truth your own proper debt. We have paid the full proportion justly chargeable to us. The remainder is of right due, and would have been paid by the other distributees, but for your own laches and dereliction of duty. By your own voluntary act in surrendering the propérty of your intestate, and declining to take bonds for its production, you have occasioned the loss to be incurred, and as between us and yourself it ought, therefore, justly to be borne by you alone. In the view of the Court, as between Mrs. Eleanor Spann, and her sons Charles C., and John R. Spann, Jr., *78the primary liability in respect of the ¿residue of the judgment debt to Inglesby’s executors rested upon her, and she cannot be regarded as having been injured because such residue was'not exacted from them. Charles C., and John E. Spann, Jr., may properly be regarded, in relation to .the balance due upon that judgment, as standing towards Mrs. Eleanor Spann in the position of sureties who have. been discharged from liability by the creditor’s abandonment and rejection of the counter securities for the debt. *Lang*vs. *Brevard,*2 Strob. Eq. 64.

Tbe delay on the part of Inglesby’s executors in prosecuting their legal remedies, of which complaint is made, cannot avail the plaintiffs. It is not pretended that more than partial payment was actually made; .and the interval between the rendition of the judgment in favor of Inglesby’s executors, and the commencement of the proceeding which is sought to be enjoined, is too brief to raise such presumption. Nor has any sufficient ground been suggested upon which the plaintiffs are entitled to relief in their character of sureties. Acts of mere passive sufferance, omission, or delay “ on the part of the creditor, will not discharge the surety. As between the creditor and the surety, the former is under no obligation of active diligence against the principal debtor” — at least not until the surety requires that the creditor collect his debt. *Wright*vs. Simpson, 6 Yes. 734; *Lang*vs. Brevard, 2 Strob. Eq. 64.

On behalf of the plaintiffs, it is further urged that, as by virtue of the decretal order of 6th June, 1837, the execution of Inglesby’s executors imposed a lien upon the entire visible estate of the intestate, Charles Spann, Jr., satisfaction of that execution should be had from the real estate of which the intestate died seized.- By the Sheriff’s sale in February, 1848, the lien of the executions of the Bank of Charleston and the executors of Inglesby was undoubtedly extinguished, as to the land purchased by the trustees of *79Mrs. Graillard. Under these executions it was duly levied upon, advertised, sold, and conveyed to Hastin Jennings. The validity of the sale is not impeached or questioned in the bill. The purchaser, Jennings, afterwards conveyed the land by deed to the trustees of Mrs. Graillard, and thereupon she, with her husband, passed into its possession, and held the same openly, continuously, and adversely for a period of more than fourteen years prior to the filing of this bill. Had the Sheriff’s sale been invalid, still the title of the trustees would have become perfect by means of such possession and the operation of the Statute of Limitations.

The parcel of land known as the “ Buzzard Boost plantation,” and now in the possession of the defendant, Henry Spann, stands upon a different footing.

In the partition of 1837, that tract of land was assigned in common to John B. Spann, Jr., and his sisters, Caroline M. and Mary E. Spann. In their hands it stood bound undoubtedly by the lien of the judgment of Inglesby’s executors. The portion of that judgment debt ratably chargeable upon the share of J. B. Spann, Jr., in his father’s estate, has been paid, and for the residue of the debt it has been shown that, as between J. B. Spann, Jr., and the plaintiffs as sureties of the administratrix, Eleanor, the primary liability rests upon them. Eor like reasons, as between the plaintiffs and the daughters of Charles Spann, Jr., the former are primarily answerable for so much of the judgment, debt due Inglesby’s executors as exceeds the portion chargeable ratably upon the shares' of the latter in their father’s estate. But in regard to so much of the debt as would, if apportioned among the distributees of their father’s estate, fall upon the shares of the daughters, Caroline M. and Mary E. Spann, their interests in the “Buzzard Boost plantation,” it is apprehended, are still bound by the lien of the execution of Inglesby’s executors, *80The lien in question to that extent has been in nowise discharged or impaired. The daughters Caroline and Mary never parted with their interest in that plantation until September, 1849. .

Even though the possession of Henry Spann could be referred to the entry of Leonard White, the interval is too short to divest the lien and confer title under the Statute of Limitations. *McBaa*vs. *Smith,*2 Bay, 339; *King*vs. *Smith,*Bice, 13; *Blake*vs. *Heyward,*Bail. Eq. 208.

Whether the plea of purchase for valuable consideration without notice would have availed the defendant, Henry Spann, might well be doubted, after the decision in the case last cited. But the point does not require to be adjudged. Henry Spann has not entitled himself to the benefit of such plea. In his answer he avers neither payment of the purchase-money nor the want of previous notice ; both which averments are essential elements in this defence. Sugd. Yends. 1069. By assuming the administration of her husband’s estate, Mrs. Eleanor Spann became his representative in respect of his debts, and answerable for them as far as she had assets. The sureties to her administration bond became thereby responsible for her due administration of such assets. Eor payment of the judgment debt to the Bank of Charleston, the assets that came to her hands were most ample. When therefore she, as administratrix, became liable for the debt to the Bank of Charleston, her sureties upon the administration bond became to all intents and purposes her sureties for that debt. It results that upon payment of the execution of the Bank of Charleston, the sureties of Mrs. Eleanor Spann, upon her administration bond, became entitled to succeed to all the rights and remedies of the bank existing under that execution at the date of its payment.

Such is the familiar doctrine of the Court. The lien of that execution thus set up cannot, for the reasons already *81indicated, be enforced at all as against the land purchased by the trustees of Mrs. Gaillard, nor as against the “ Buzzard Boost plantation” except as to the interests therein of the daughters Caroline and Mary, and as against those interests only to the extent of the portion of that debt ratably chargeable upon the shares of the daughters in their father’s estate. Substitution or cession of remedies is the creature of equity, is administered so as to secure real, essential justice, and -will never be enforced against superior equities. *Bearing*vs. *Earl of Winchester,*1 W. & T. Lead. Cas. (notes) 87-97.

But it is contended that the payment of the execution in favor of the Bank of Charleston, as to which the plaintiffs ask to be substituted to the rights of the bank, occurred more than four years before the filing of their bill, and that the claim of the plaintiff's in that regard is therefore barred in analogy the Statute of Limitations.

This ground of defence is regarded as untenable. It is said that, ¿n general, where any one is compelled to pay a debt for which another is primarily liable, subrogation takes place by operation of law. The payment by the surety of a bond or judgment debt is regarded in this Court not as an extinguishment but as a purchase. *Oheesborough*vs. *Millard,*1 John. Ch. *413\.Hays*vs. *Ward,*4 John. Ch. 123; Adams Eq. 269, (n. 1.) The decision in *Smith*vs. *Swain,*7 Bich. Eq. 112, seems to proceed upon that ground. Such also appears to be the plain import, and effect of the Act of 1849, 11 Stat. 556. That statute is not restricted to the case of a joint judgment recovered against principal and surety, and paid by the latter. Its terms are sufficiently comprehensive to embrace all sureties. *Wilson*vs. *Wright,*7 Bich. 406.

The defendant, Henry Spann, claims to be entitled to the benefit of the agreement made by J. B. Spann, Jr., Hastin Jennings, and J. W. Brownfield, with Leonard White and *82Tbomas M. Dick, as also to the benefit of the bond executed by the former parties to the latter, of which a copy is exhibited with his answer. In the view of the Court, these matters should be made the subject of separate suit. If at all proper to be here considered, they should have been brought before the Court by a cross-bill. Although a conflict of interests among the defendants is no objection to a bill, yet the Court will not adjudicate between them unless the necessity to do so arises out of the plaintiffs claim. Adams Eq. 313.

The defendant, Hastin Jennings, claims a portion of the debt due upon the execution of Inglesby’s exécutors under their assignment to him exhibited with his answer. As to this claim nothing is here determined. Whether the sum of $600, which the executors of Inglesby acknowledge by that paper to have been received from Jennings, should be regarded as payment on their execution, may be more conveniently considered when the Commissioner submits his report respecting the unpaid balance due upon that execution.

At the hearing it was objected that the widow, Mrs. Eleanor Spann, and all the other distributees of her intestate, should have been impleaded in this suit. This objection is not taken in any of the pleadings by any of the defendants, and, had it been, would not have prevailed. *McKenna*vs. *George,*2 Eich. Eq. 22.

In the course of the argument it was also urged, on behalf of some of the defendants, that the estate of Hastin Jennings, because of his complicity with J. E. Spann, Jr., in certain alleged frauds, should be charged with the debts as to which the plaintiffs seek relief. The bill is framed with no such aspect, and the. matter suggested is, therefore, not proper to be here considered.

1. It is ordered and adjudged that this opinion stand for the decree of the Court.

*832. It is further ordered that the Commissioner take an account of what is due to the plaintiffs, H. L. Pinckney and Bichard B. Spann respectively, for payments made towards satisfaction of the execution of the Bank of Charleston against Eleanor Spann, administratrix, and that he report how much of the same, if apportioned among the distributees of tbe estate of Charles Spann, Jr., deceased, according to their respective interests therein, would be chargeable upon the shares respectively of his daughters, the said Caroline M. and Mary E.

3. It is further ordered that an account be also taken of what remains due and unpaid, upon the execution herein above mentioned at the suit of the executors of William Inglesby, deceased, and that he report how much thereof, if apportioned among the distributees of the estate of Charles Spann, Jr., deceased, according to their respective interest in the same, would be chargeable upon the shares respectively of his. daughters, the said Caroline M. and Mary E.

4. It is further ordered and decreed that, as to so much of the balance due upon the said execution of Inglesby’s executors as shall be ascertained, when apportioned as aforesaid, to be chargeable upon the portions of the said Caroline M. and Mary E., in their father’s estate, the injunction heretofore granted be continued against the surviving executor, Joseph S. Inglesby, until he shall have pursued and exhausted his remedies under said execution against the portions that were assigned to said Caroline M. and Mary E. in the “Buzzard Boost Plantation,” at the partition of the lands of the said Charles Spann, Jr., deceased, and, as to the residue of what shall be ascertained to be due on said execution, that the said injunction be dissolved.

5. It is also ordered that the parties, upon the coming in of the report, have leave to move for such further orders as may be proper and necessary.

*846. And it is further ordered that the costs of the defendant, G-aillard, be paid by the plaintiffs; that the other defendants pay their own costs respectively; that plaintiffs pay also their own costs, as between them and all the defendants, except James M. Jennings, administrator of Hastin Jennings, deceased; and that, as between the plaintiffs and the last-mentioned defendant, the consideration of the plaintiffs’ costs be reserved until the coming in of the report.

The complainants and the defendants, Inglesby and Henry Spann, appealed on various grounds, which it is deemed unnecessary to state, as the points upon which the case was decided are fully stated in the opinion of the Court.

*T. B. Fraser, James Simons,*for complainants.

*S. Mayrant,*for Inglesby.

*W. Gf. Be Saussure,*for Gaillard.

*J. B.*Blanding, for Henry Spann.

*J. S. Gf. Richardson,*for Jennings.

(a)

 This case was argued and decided at May Term, 1866, but owing to the protracted illness of his Honor, Judge Inglis, the opinion was not filed uni the present term.

The opinion of the Court was delivered by

Inglis, A. J.

Charles Spann, Jr., died in 1834, intestate, leaving a widow, Eleanor, and six children. Administration of the personal estate was granted to - the widow, and E. Eussel Spann and John E. Spann, Sr., became the sureties on her bond. In June, 1837, under proceedings for the purpose in the Court of Equity, partition was made of the whole property'then remaining, consisting of realty valued at seventeen thousand dollars, and personalty valued at sixty-one thousand dollars. But, as there were still outstanding debts of the intestate, the order of confirmation *85directed *“ that*the property should continue subject in the hands of the distributees to any judgment or execution which should be obtained against the administratrix for debts due by the estate; that the adult distributees, and the guardians of the infants, should give bond, with sureties, to the administratrix for the production of the property allotted to them, to satisfy any such judgments or executions ; that the negroes and other property allotted to the adults should be delivered to them, and the slaves and other property allotted to the minors should be retained for them by the administratrix, until they should respectively attain the age of twenty-one years, or marry, or until a legally appointed guardian should give bond and security according to law, when the property should be delivered to such guardian; and that in case any suits, judgments or executions, either in law or equity, should be obtained against the administratrix for debts due by the estate, the same should have a lien upon the slaves and other property of the estate of Charles Spann, Jr., deceased, allotted and delivered to each, which should be subject to be sold under and by virtue thereof.” Under this order, the distributees went into possession of their respective shares, the adults at once, and the infants as they severally successively came of age. The forthcoming bonds directed to be given to the administratrix were not exacted by her.

In the partition of the realty, a tract of land called *“*Buz-, zard Boost” was assigned to the three then infant children, John B. Spann, Jr., Caroline M., and Mary E., and through several mesne conveyances had, at the institution of these proceedings, become and now is vested in Henry Spann.

Another portion of the intestate’s lands, consisting of three tracts, known as the Orange Grove, Britton Hair, and Fullerton tracts, was assigned to the widow, and by subsequent conveyances was vested in Hastin Jennings, holding in some unexplained way for the benefit of John E. Spann, *86Jr. S. Porcher Gaillard, desiring to have certain funds, held by trustees for the separate use of his wife, invested in this land, on the 3v0th December, 1842, entered into a written contract to this end.with Jennings and Spann, for the particular terms of which reference must be had to plaintiffs’ exhibit B, copied in the brief. In order to relieve this parcel of land of the liens upon it, supposed to have been created by virtue of the order in equity of June, 1837, by certain judgments, &c., presently to be more particularly mentioned, it was seized, and, after due advertisement, sold on sale-day in February, 1843, under execution against the administratrix of Charles Spann, Jr., bid off by Hastin Jennings, at the nominal sum of ten dollars, and conveyed by him to the trustees of Mrs. Gaillard, who now hold it. Gaillard thereupon paid the cash portion of the purchase-money, and, at some early day afterwards, the credit portion ; but no part of either payment was applied towards the. satisfaction of the debts of Charles Spann, Jr., except, perhaps, the amount of the bid.

,On 12th June, 1841, the Bank of Charleston, and the executors of Inglesby, severally recovered judgments in the Common Pleas, against Eleanor Spann, administrati’ix, for the execution of which judgments writs of *fieri facias*were duly lodged. On sale-day in February, 1843, fourteen negro slaves, part of the distributed estate of Charles Spann, Jr., were produced by certain of the distributees, a levy thereof given to the Sheriff* advertisement dispensed with by the consent of the creditor and the distributees produc- • ing them, and a sale of them made for a sum about sufficient to satisfy both judgments. John E. Spann, Jr., was the purchaser, and the negroes were delivered to him. E. Bus-sel Spann, one of the sureties on the administration bond, probably induced by the advertisement of the land above mentioned, was 'present at the sale to protect the sureties, and, having previously ascertained the amount of the judg*87ments, ran up the bidding on each lot, until an aggregate had been reached about sufficient to cover the amount so ascertained. If the property had been knocked down to him, payment of the purchase-money, or of any deficiency on a resale in case of non-compliance, could not, perhaps, have been enforced by legal process. But he had the command of considerable means, the income of property belonging to his family, and, with the aid of the other surety, equally interested and a man of large resources, could readily have paid his bids. The negroes having thus brought a sum nearly or quite sufficient to satisfy the judgments, the tract of land which had been bargained to Gaillard was sold without competition.

John E. Spann, Jr., did not pay for the negroes at the time of delivery to him, and had not paid for them before the next sale-day. The delivery, without payment, was made by the Sheriff, at the instance of the creditor, In-glesby, between whom and the purchaser there was some understanding, according to which the purchaser, during the course of the ensuing month, was to satisfy the creditors for the amount of his bid by a private arrangement, or, failing that, the negroes were to be resold on the next sale-day. By reason of instructions received in the interval from Inglesby, the Sheriff did not resell on sale-day in March, as he says he would otherwise have done. The negroes, if resold in March, would have brought larger prices than on the original sale. Negotiations between Inglesby and the purchaser, John E. Spann, Jr., seem to have continued without results satisfactory to the'former until October, 1845, a period of two years and eight months, wired, for the first time, the Sheriff was instructed to reseize and resell. John E. Spann, Jr., refused to deliver, and an action of trover was commenced by the Sheriff. In consequence of this obstruction to the Sheriff’s proceedings, no resale took place till November, 1847, four years and nine *88months from the date of the first sale. The original bids for four of the negroes were then paid, and those not paid for were surrendered to the Sheriff and resold. In the meantime, by the long possession of the purchaser, under an apparent title acquired at Sheriff’s sale, and intervening encumbrances on his estate therein, the liability of the property to the claims of the intestate’s creditors had come into great doubt, if it had not, as against the creditors of the purchaser, been entirely defeated. The sale was forbid by various persons, among whom was Hastin Jennings; and the ten negroes brought, in all, only one hundred and fifty dollars. So far as appears to the Court, these negotiations between the creditor, Inglesby, and the purchaser, John R. Spann, Jr., the conditions attached, as it is said, to the delivery of the negroes to the latter, and all that followed, were not only without the concurrence but even without the knowledge of the defendant in execution, Eleanor Spann, administratrix, or her sureties. In the meantime, other personal assets of Charles Spann, Jr., which had been allotted and delivered to the distributees, had been removed from the jurisdiction or otherwise scattered.

The sale to John R. Spann, Jr., having thus failed to result in actual satisfaction in money, the Bank of Charleston instituted suit upon the administration bond against the sureties thereto, suggesting a *devastavit,*and, after much delay and litigation, recovered judgment for the penalty, and had their damages assessed for the balance of their debt, which recovery has been paid by the sureties in equal parts.

In 1857 Inglesby’s executors sued out a *scire facias*to revive this judgment against the sureties, and to'recover the balance claimed to be due on his debt, by a further assignment of breaches and a new assessment. Thereupon the sureties filed their present bill, wherein they set forth various' supposed equities as against the creditor, *89Inglesby, wherefore he should not have the recovery sought at law against them, particularly his interference with the sale of February, 1843, whereby the real value of the property of their principal then sold, which was entirely sufficient to satisfy the debts of her intestate, as at that time existing, was prevented from being made available in fact for this purpose; and pray that he may be restrained by injunction from proceeding further in his suit at law “ touching the matter in question.” The bill also insists that, by virtue of the contract of December 30, 1842, between Hastin Jennings and John R. Spann, Jr., and S. Porcher Gaillard, a trust was created in the money agreed to be paid for the land therein bargained, for the judgment creditors of Charles Spann, Jr., and the satisfaction of their demands, and that therefore if, notwithstanding the supposed equity to the contrary, the creditor, Inglesby, shall be permitted to enforce his demand, satisfaction thereof shall be decreed primarily out of the trust fund thus created; that the real proper|y of the intestate, Charles Spann, Jr., partitioned in June, 1837, is, under the order of that date, still liable to levy and sale under the creditors’ execution at law, and the trust fund created as above failing or proving insufficient, the creditor shall be required to resort to his legal remedy against this realty; and that the sureties shall be subrogated as against these several funds to the rights which the Bank of Charleston, as a creditor of Charles Spann, Jr., had to be satisfied thereout, and so be reimbursed the amounts paid by them respectively for the satisfaction of that debt.

On the hearing below, the Chancellor held that the plaintiffs are entitled to no relief as against the creditor, Inglesby, by reason of the interference of the latter in the matter of the Sheriff’s sale of February, 1843, or otherwise; that no trust was created for the creditors of Charles Spann, Jr., by the agreement of December 30, 1842, between S. *90Porcher Gaillard and Hasfcin Jennings and John R. Spann, Jr.; that any lien which, under the order in equity of June, 1837, attached upon the land bargained to Caillard in that agreement in favor of the creditors of Charles Spann, Jr., upon the recovery of their judgments, was discharged by the sale under execution to Jennings; but that “Buzzard Roost,” part of the real estate of Charles Spann, Jr., in the hands of Henry Spann, a purchaser from several of the distributees, is liable for the relief of the sureties against the Inglesby debt, and for the reimbursement of the amount paid by them in satisfaction of the debt to the Bank of Charleston, to the extent of the proportions which Caroline M. and Mary E., two of the distributees from whom Henry Spann derived title, ought to have contributed of their portions towards the satisfaction of the debts, and he ordered accordingly.

The plaintiffs, being the sureties of the administratrix, the defendant, Henry Spann, and the creditor, Inglesby, have all appealed, and in their grounds of objection to the circuit deoree have raised several questions, the judgment of this Court on three of which will dispose of the whole case:

1. Have the plaintiffs shown an equity to have the defendant, Inglesby, restrained from proceeding in his action at law ? The correct' answer to this inquiry depends on the effect proper to be given to the facts which have been' recited touching the Sheriff’s sale of February, 1843, and this defendant’s conduct therein.

On that occasion negro slaves, which, under the order in equity of June, 1837, must, for the purposes of such sale, and as among all the parties connected therewith, be considered as still, at that time, the property of the defendant in execution, to wit, Eleanor Spann, in her capacity of ad-ministratrix, were sold for an aggregate sum sufficient to *91satisfy the debt, a recovery of which against these plaintiffs is sought in the action to be restrained. And the slaves so sold were delivered to the purchaser. Certainly, if nothing more than this had occurred, satisfaction in fact must have resulted, and the Sheriff have been responsible, for the amount of the bid, to the persons entitled. The additional fact, that the bidder did not pay his bid, could not, of itself, change the result. *(Towles*vs. *Turner,*3 Hill, 178; *Cochran*vs. Roundtree, 3 Strob. 217.) The Sheriff has no authority to deal with the property of a defendant in execution, except such as is conferred by positive law, and this must be pursued if he would avoid personal responsibility. Sheriffs’ sales are directed to be made for cash, (A. A., 1839, sec. 58, 11 Stat. 37,) and a summary and effective method of insuring compliance by purchasers with their bids is furnished in the power of resale. But this involves the retention by the Sheriff of the possession in the interval. He cannot always prevent irresponsible persons from bidding, and if from such cause loss result upon the strict execution by him of his power of resale, it is the misfortune of those interested in the property and its proceeds; the law imputes no fault to him. But by delivery of possession to the purchaser, though without payment, the sale is consummated beyond his power of recall, and he has made himself responsible for the amount of the purchaser’s bid. His remedy by resale is gone, and though, for his own indemnity, he may resort to his action upon the contract of sale, if the purchaser is irresponsible, and he fail to make the money, the loss is his own. It is said, however, that the delivery here was upon a secret condition, whereby the title was not to vest in the purchaser until payment of his bid. It may be well doubted whether the Sheriff can prevent the effect of delivery by annexing thereto any secret or private conditions or qualifications, verbal or otherwise, by arrangement with the purchaser, so as to affect the rights or inter*92ests of third persons. (Yide remarks of Wardlaw, J., in *Cochran*vs. Roundtree.) If he chooses to assume the bid, and make himself the creditor of the bidder, he may, doubtless, stipulate for any efficient and prompt means of enforcing payment of the debt, and 'the stipulation will be good against the purchaser. But, in doing this, the Sheriff has put off the character of the officer, and acts in his individual capacity. If the condition which the Sheriff as such annexed to his delivery of the negro slaves to John R. Spann, Jr., was void as against all persons other than Spann himself, because not within the Sheriff’s official competency, the sale was completed by that delivery, and satisfaction of the execution debt resulted. It is not, however, necessary, for the purposes of the present case, to resolve this doubt, and rest the judgment upon a denial of the validity of that condition. The delivery without payment was really the act of the creditor, under whose execution the property had been seized and sold. The Sheriff acted by his instructions. Without the privity of the defendant in execution, the creditor had privately agreed with the bidder, that the latter might buy the property, and have time for the settlement of the bid to his satisfaction, by payment, or otherwise, until the next sale-day. As security for the bidder’s fulfilment of his part of this agreement, the creditor stipulated that, if such settlement were not made, the property might then be reseized and resold under the execution. It may be conceded that, by the consent of all parties interested, a sale by the Sheriff may be made on credit. But when the execution creditor singly, and without the concurrence of the debtor, undertakes to dispense with the payment in cash, and direct the property to be delivered upon the bidder’s promise to pay subsequently, he is to be understood as thereby accepting the bidder’s promise in payment of his execution. In such case a stipulation for reseizure and resale is merely the security *93which he takes for the bidder’s performance. And the resale by the Sheriff in pursuance thereof is not under the authority of the original execution, but as the agent of the creditor, and by virtue of the agreement, as in the sale of a mortgaged chattel. This is, at least, so far the case as to render it inequitable to throw upon the debtor any loss resulting from the g-iving of such credit to the bidder.

But let it be assumed that the delivery upon this secret reservation was the act of the Sheriff, and that the condition was valid, except as against the subsequent creditors of, and purchasers for, valuable consideration from John E. Spann, Jr., without notice, and prevented the effect which would otherwise have been wrought by such delivery. The bid of the purchaser not having been paid, and the bidder being known to be irresponsible, the course prescribed by the law, and most proper for the interests of all concerned, was a prompt resale. The evidence gives the assurance that a resale on the next succeeding sale-day, or, it may be inferred, at any early day thereafter, would have resulted in actual satisfaction. But no such resale was effected until after the lapse of nearly five years. • And upon this resale ten negro slaves, which at the first sale brought, and were certainly worth, two thousand five hundred and twenty dollars, were sold for the trifling sum of one hundred and fifty dollars. How is this difference to be accounted for ? Property is often sold under execution at very inadequate prices, and if responsibility for the depreciation cannot be fixed upon any one, it must be regarded as the result of untoward circumstances in the condition of the community, or of some mere casualty, and is the debtor’s misfortune. Is this the case here ? It does not appear, nor is there any reason to believe, that, at the date of the second sale, there was any unusual scarcity of money, still less ¡that property of this kind had so fallen in the market, that a fair lot of ten negroes would only aver*94age fifteen dollars per head. But facts are proved which fully explain this remarkable difference in prices at the two sales. The condition verbally attached to the delivery of these negroes to John R. Spann, Jr., at the first sale, which, it has been assumed, prevented the title from vesting in him as between himself and the Sheriff, could not avail against his subsequent creditors, or subsequent purchasers from him for value, without notice. That there were such creditors, at least, seems almost certain from the evidence. That there were even liens by execution, which, in the interval, had attached upon his title, in behalf of such creditors, appears in the highest degree probable. The liability of this property to a resale under execution against Eleanor Spann, administratrix, after nearly five years possession of John R. Spann, Jr., in the face of his creditors, under a title derived through an open, public, judicial sale, consummated by immediate delivery, might well be disputed and brought into a degree of doubt, abundantly sufficient to deter bidding. The right of the Sheriff to reseize and resell had, for the two years, next preceding the resale, been questioned and resisted even by Spann himself, so that resort to an action at law for its vindication became necessary, and at the resale various persons are found interposing claims in divers rights,. and forbidding the Sheriff’s proceeding. At the first sale there was no such interference; the liability of the property for the satisfaction of the executions under which it was sold was not then questioned. It cannot be doubted that the gross inadequacy of the price at the resale, and the consequent loss, are to be attributed to the operation of these causes, and-the obscurity in which the liability of the property had thereby become involved. Who is responsible for the existence of these causes, and for an opportunity for their operation? The sale originally to an irresponsible bidder; the delivery, without payment of the bid, upon a promise ' *95of payment before tbe next sale-day or a return of tbe property for resale; the waiver of that promise by the extension of further credit, and the consequent failure to resell when satisfaction in fact would have resulted; the undisturbed and unquestioned possession of the bidder during the long period of three years, while the hostile rights of his private creditors were accruing — were all due, not to the passive neglect merely, but to the direct and active agency of the creditor, Inglesby. These were all the result of his private negotiations with the purchaser. If this were merely the ordinary case of a failure of the bidder to pay his bid, the creditor might have dispensed with a resale on the same or next succeeding sale-day, so far as to relieve the Sheriff from responsibility, but it does not henc$ result that the debtor would be without remedy for any injury to him wrought by such interference. The law surely does not design to make the interests of the debtor . the helpless sport of the caprices, the mistakes, the credulity, or mismanagement of the creditor.

The formalities required to be observed in the conduct of sheriffs’ sales are designed for the protection and benefit of those interested in the property and its proceeds, and may be waived by their common consent, *(Lewis*vs. *Brown,*4 Strob. 293; *O'Bannon*vs. *Kirkland,*2 Strob. 29.) In the present case the execution debtor not only did not consent to any of these departures from the usual course of proceedings, but, so far as appears, was not even informed of them. Eor any thing that is known to the Court, so far as the defendant in the execution at law knew, the debts of her intestate were all satisfied by the sale in February, 1843, and the negroes and other property remaining in the hands of the several distributees were thereby thenceforth discharged from the liability retained for the protection of the creditors, .herself and her sureties, by the order in equity of June, 1837. She may well have considered her*96self now relieved from all further obligation of vigilance over this property, and the absolute title of each distributee to fiis or her share perfected. It is not surprising if, after this time, they were severally permitted to remove their respective property out of the jurisdiction, or otherwise dissipate it, or deal with it according to their pleasure, without question by her. And such seems to have been the fact. So also it does not appear, and there is even less reason to conjecture, that these plaintiffs, who were the sureties for her administration, assented to or even knew any thing of these qualifications and private arrangements, whereby a sheriff’s sale, consummated in the ordinary way, and operating seemingly to terminate their liability, was converted into a mere delusive show. One of them, for the specific purpose of their protection, advised by the advertisement of the land, of the opportunity therefor, attended the sale, and bid on the negroes until an aggregate had been reached sufficient for their relief, and then retired, so confident that his design was accomplished that he permitted a tract of land, which would on that day have yielded at least four thousand dollars in cash, to be bought off and discharged of whatever liability attached to it,'for a merely nominal sum. Under such circumstances, it is not equitable that the creditor should pursue the debtor further. It is still less equitable that he should pursue the sureties of the debtor, and compel them to make good the loss which has resulted from his unwarrantable and injurious dealing with their principal’s property.

II. For the purposes of the question which has thus been disposed of it has been assumed that the special provisions of the order in equity of June, 1887, continued, after and notwithstanding the partition, the liability of the distributed personalty for the satisfaction of the intestate’s debts, as it had previously existed, and its subjection to the same methods of enforcing that liability. This is the utmost *97effect that can fairly be claimed for them, since neither the language in which those provisions are expressed, nor the avowed occasion for the qualification thereby of the order of confirmation, requires more. The first clause of the order is a simple confirmation of the partition recommended by the Commissioners in their return. The only reason assigned for any qualification to this confirmation is, that “ there are outstanding debts of the intestate;” To protect these unsatisfied creditors against any prejudice or embarrassment that would result from an absolute confirmation is the end proposed. The event made patent, what was probably known to the parties and disclosed to the Court at-the time, that these outstanding debts did not amount in the aggregate to four thousand dollars. The personalty of the intestate to be distributed was estimated at sixty-one thousand dollars. To retain in all particulars the liability of this large personalty, insured the protection designed, to the farthest bounds of reasonable demand. To understand the Court as having by its order imposed upon the titles in severalty which the parties were asking more onerous fetters than resulted from this retention, would be an imputation of disregard of the rights and interests of those parties which nothing short of the absolute necessity of language could justify. Three years had elapsed since, by the death of the intestate, the lands of which he had died seized had descended to his heirs. If the bill had sought a partition of these lands only, would a call by creditors of the intestate, claiming four thousand dollars, to have the shares after partition encumbered with a continued liability for the satisfaction of their demands, have been listened to, after the Court had been informed that there was still in the hands of the personal representative for administration personalty worth sixty-one thousand dollars? Is it any more reasonable that the Court should have done so in a proceeding for the partition of both realty and person*98alty, where this personalty is by the order, as now construed, virtually continued in the hands of the administratrix, so far as the creditors’ rights are involved ? Does the language of the Court necessarily import that as well the land as the personalty is to be subjected to this continued liability ? The terms used to describe what it is which is to be so subjected occur twice — once, certainly, they are very general, “the property divided,” but afterwards more restrained, “slaves and. other property allotted.” The realty partitioned constituted about one-fourth part of the whole estate, and. yet, although it must be regarded as a “thing of superior rank,” it is nowhere expressly named in these terms of description. The more specific terms, “ slaves and other property allotted,” may be fairly understood as explaining and limiting the other more general words, “ property divided,” and will not be so extended as to embrace “ lands,” which are nowhere specified. Subordinate to and involved within the controlling purpose of protection to the creditor, as a means the more to insure and facilitate its accomplishment, is the provision for the ■ protection of the administratrix, by enabling her, upon'the creditors’ demand on her, the more effectively to call in the assets with the administration of which she is charged. To this end the several distributees are to give bond with surety for the forthcoming of “the property allotted to them.” Here the same general terms are used, yet no one will understand them as importing that the forthcoming of their allotments of land was to be thereby secured. It must mean only that property for the due application of which the administratrix was responsible to the creditors. The terms of-the order are satisfied by the construction ' which has now been put upon them, and any larger sense would have imposed fetters upon the titles of the parties to their respective portions of land which the Court ought not to have imposed, and therefore will not readily be held to have intended.

*99If tbe continued liability of tbe land under tbe operation of this order were conceded, although' the creditor might in that case have resorted to it for the satisfaction of his judgment, it will not follow that, when, without such resort, he has compelled the sureties of the administratrix, upon a *devastavit*of the personal assets established against her to pay his debt, these can turn round upon the heir, and compel him to reimburse them out of the land which has descended to him. It may be that under the operation of the statute, 5 Geo. II. c. 7, sec. 4, (2 Stat. S. G. 570,) lands of an intestate are, equally and indifferently with his personalty, liable under process against the administrator at law, for the satisfaction of the intestate’s debts, and that the one or the other may, at the option of the creditor, be taken in execution, *(D'Urphey*vs. *Nelson,*4 McC. 130; *Martin*vs. *Latta,*4 McC. 128; see *Jones*vs. Wightman, 2 Hill, 519.) Yet certainly a distinction is firmly established in equity as to the order of their liability, as'between those upon whom the title of the intestate has been cast, *(Hull*vs. *Hull,*3 Rich. Eq. 65; *Henry*vs. *Graham,*9 Rich. Eq. 100 ; *Lloyd*vs. *Lloyd,*10 Rich; Eq. 469; *Goodhue*vs. *Barnwell,*Rice Eq. 198.) It is here well ascertained that the personalty is the primary fund for the payment of the debts, and the land comes in only to its aid, and for the supply of its deficiency. This distinction was not abolished in the particular case under consideration by the order of June, 1837. It is not so in terms, and the purpose to be attained by that order did not require that it should be. If, then, the liability of the land continued for the benefit of the creditor, yet the order of its liability, as against the personalty and those claiming it or responsible for it, was not disturbed. But with the due administration of the personalty Eleanor Spann was charged. The first duty of such administration was the payment of the debts, and for this purpose the assets in her hands, and by the order retained in them notwithstanding partition, was sufficient, fifteen times over. *100These plaintiffs were sureties for her fidelity in this very application of the personalty which her office of adminis-tratrix exacted of her. They undertook expressly that with these personal assets she would pay the debts of her intestate. It may be that under certain circumstances an administrator might himself have an equity to be reimbursed out of the realty, as, for á balance due him on his administration accounts from an excess of payments- over receipts. But it is difficult to conceive of any circumstances in which the sureties of an administrator who are only bound for the faithful application of the personalty, and whose responsibility, therefore, must cease upon its exhaustion by such application, can have such equity. Certainly, sureties responsible for the due administration of sixty-one thousand dollars of personal assets can have no claim to be reimbursed out of the realty the comparatively insignificant sum of twelve hundred dollars, which they have been compelled to pay in satisfaction of a debt of their principal’s intestate.

It may be that the-sureties are entitled, in equity, to call upon the distributees severally to contribute ratably for their reimbursement, to the extent of the share which each accepted, under the terms of liability prescribed in the order. These terms of liability, it has been seen, do not touch the lands partitioned specifically. If the liability to contribution is to be regarded as originally a personal liability of each distributee, to the extent of the value of the share of personalty received by him, or as, by the non-production of such share, converted into such personal liability, the land of the distributee in the hands of a purchaser from him cannot be subjected to the satisfaction thereof, by proceedings instituted after the purchase. This would be to make the property of a vendor, affected by no lien at the time of the sale, liable for the satisfaction of any debt afterwards established against him as pre-existing. Moreover, to the administration of such a form of relief by *101enforced, contribution, tbe inflexible rule of tbe Court would require, that all those bound to contribute should be parties to the proceedings, that their mutual equities might be adjusted, and complete right in the particular matter be attained. The Court, for the purpose of administering such relief, cannot assume that other debts of the intestate have not been paid by one or other of the distributees, or that other facts do not exist which would affect the proportions which the particular distributees before the Court ought to be required to contribute to this reimbursement. And in the evidence produced in this particular case there is furnished very strong reason to believe that in the negro slaves, Yiney and child, and Dick and Aleck, part of the levy sold in February, 1848, and resold in November, 1847, and thereby lost to them, whoever was the gainer, Caroline M. Bice and Mary E. Spann, the distributees under whom Henry Spann holds *“*Buzzard Boost,” have already contributed more than their share or ratable proportion of the whole outstanding debts of the intestate of which the Court has information, embracing the particular debt for the payment of which reimbursement is here sought. It is the opinion of this Court that the plaintiffs have no equity to be reimbursed the amount paid by them in satisfaction of the intestate’s debt to the Bank of Charleston, out of the lands of the intestate in the hands of those holding under the heirs by purchase.

III. Certainly no particular form of words" is essential to the creation of an express trust, but unquestionably an intention so to do, on the part of the person to whom such creation is imputed, is essential. Where such intention does not competently appear, no form of words will create a trust. Whether, therefore, the agreement of December 80, 1842, between Hastin Jennings and John B. Spann, Jr., of the one part, and S. Porcher Gaillard of the other part, created a trust in the purchase-money therein agreed to be paid by Gaillard, or any part of it, for the execution cred*102itors of Eleanor Spann, in her capacity of administratrix, including the Bank of Charleston, to which the plaintiffs, haying paid the Bank, can resort for reimbursement, is a question as to the intention of the parties to that agreement. What conceivable motive had S. Porcher Gaillard to take care of the interests of the creditors of Charles Spann, Jr. ? There were no special relations existing between him and them. They were strangers to each other. Why should he concern himself to provide for their security or satisfaction ? But this supposed volunteer concern is not confined to *these*creditors: it embraces also the mortgage creditor of M. C. Spann, and the judgment creditors of John R. Spann, Jr., whose claims created liens on the land. So far as his participation in the transaction is involved, it is too clear to admit of dispute that his sole intention and aim in the terms he exacted from the other contracting parties was to assure to his wife’s trustees a clear, unencumbered title to the land in which he was asking them to invest her separate funds. And in conceding these terms, it is equally manifest that the single purpose.of the other parties was to satisfy this, his reasonable demand, by removing every encumbrance. This is expressly avowed, on each side, to be the purpose of all these special stipulations. It is, in no one of these, required or promised, that this particular fund shall be applied to the satisfaction of these debts, except to the extent of whatever should prove necessary to pay the bid at Sheriff’s ■ sale, in order that the effect of that sale may inure to the strength of the title which Hastin Jennings was to transfer, and thus to relieve Jennings, who must be the bidder, from the liability to pay his bid from his own means. The Chancellor below has not erred in his judgment upon the construction of this agreement. It created no’trust.

It is ordered that the decree of the Chancellor, in so far as it subjects the tract of land.called “Buzzard Roost,” *103now held by the defendant, Henry Spann, to contribution towards the satisfaction of the judgments recovered by the Bank of Charleston and the executors of ¥m. H. Inglesby, severally, against Eleanor Spann, as administratrix of the estate of Charles Spann, Jr., or towards the reimbursement of the sum paid by the sureties on the administration bond of the said Eleanor, in satisfaction of the former of ¿hese judgments, and in so far as it dissolves the injunction ordered heretofore in the cause, restraining the defendant, Joseph S. Inglesby, as surviving executor of the will of William H. Inglesby, from further pursuing his proceedings at'law against the plaintiff, William H. B. Bichardson, as administrator *de bonis non*of John B. Spann, the elder, on his liability as one of the sureties on the administration bond aforesaid, be reversed, and that the said injunction be made perpetual, and the said Joseph S. Inglesby, as such surviving executor, and all claiming under him, or in the same right, be perpetually restrained from proceeding at law against the said sureties on the said administration bond of the said Eleanor Spann, or either of them, or their or either of their representatives, to enforce payment of any balance claimed to be due on the judgment aforesaid, in favor of the executors of William H. Inglesby.

It is further ordered that the bill be dismissed as against Henry Spann, S. Porcher Gfaillard, John B. Spann, the younger, and James M. Jennings, as administrator of the estate of Hastin Jennings; that the costs of Henry Spann and S. Porcher Graillard be paid by the plaintiffs; and that the plaintiffs, the defendant, Joseph S. Inglesby, as surviving executor, and the defendant, James M. Jennings, as administrator of the estate of Hastin Jennings, severally, pay their respective costs, including, under the last named, the costs of Hastin Jennings, as a party to the original bill.

Dunkin, 0. J., and Wardlaw, A. J., concurred.

*Decree reversed.*