#### *Lewis*Cruger, *admr. of Murray vs. W. C.*Daniel, *et al.*

1. Where the heir at law admits or recognizes the liability of land, to satisfy a mortgage, after a lapse of more than twenty-years, and after the debt against the executor is presumed to he paid and satisfied, he will be hound by such admission; and the permitting a bill to be taken, pro coufesso, is equivalent to such admission.

2. Where one parties out of the jurisdiction of the Court, and other parties are within it, to charge the fact by the bill, that such person is without the jurisdiction, and then the Court proceeds against the parties; and if the position of the property is in the power of the other parties, the Court may act upon it.

3. A sales made by order of the Court, is only complete, when the terms of sale are complied with, and the purchaser accepts a conveyance.

4. The confirmation of a master, or commissioner in equity’ report of sales or having paid money, is not a judicial, but an administrative order. Its object is not to determine the truth of the fact reported, but to protect and approve of his act; and if the fact be incorrectly reported — tire partiGS are not estopped from she ving the truth.

5. It is now a well settled rule, that the admission of a party, having complete knowledge, against his own interest, are evidence, between third persons; more especially when they are in writing, and the party making them is dead.

6. An estoppel is reciprocal, and binds both parties ; so, a person making a conveyance, who has no title at the time, but afterwards acquires one, is estopped to deny that he was seixed at the time of the conveyance. So also, a party, by excepting a conveyance, is estopped to deny bis grantor’s title. If he afterwards buys a better title, though he may claim to be re-imbursed the money, which he has paid to complete the title, he cannot use it to defeat his contract with his first grantor.

7. A party cannot set up length of possession under a different title, against the title under which he entered. So also, when the possession is vacant, there is a constructive actual seisin, in him who has the right. *i*

8. Atenant, in possession of land, is always a proper party to a bill for foreclosure of a mortgage, although he may have no legal interest in the premises. It is proper to make subsequent incumbrancers parties — they may be properly made a party as ‘terre tenant.’

9. A party who has purchased a legal title, without notice of an equity, will be protected.

10. Interest will not be carried beyond the penalty of a bond; but although equity cannot carry interest, beyond the penalty of a bond, yet it will not suffer the mortgagor to redeem, without paying all that is due.

Vide, a branch of this case, in Riley’s Chancery cases, 102. Rep.

*Heard before*Johnson, Chancellor, *at*Charleston, *January*Term, 1835, *who pronounced the annexed decree.*

David Murray, being seized in fee of a plantation called Nelville, by deed, dated 1st February, 1770, demised the same, described in the deed as containing 600 acres, for a term of 2000 years, to Charles Murray, by way of mortgage, to secure a debt of £1000. The mortgage contains a covenant against all incumbrances, except a prior mortgage to *158John Murray, which has been long paid. By his last'will, he devised Nelville to his daughter, Miss. Charles Murray, and died on the 29th April,- 1771. Miss. Charles Murray married Thomas Washington, and in the year 1783, Washington and wife conveyed Nelville, in fee simple, to ■Wm. Pierce, Anthony Walton White, and Richard Call, for £0400 ; but of this sum, 1500 guineas were retained by Pierce, White and Call, to meet the mortgage to Charles Murray; and Richard Call, in the name of Pierce, White and Call, entered into a bond to Washington, to indemnify ■him against the mortgage to Charles Murray. Of this arrangement, Charles Murray and his agents had notice. The release of Washington and wife, contains covenants of the grantor’s right to convey, for quiet enjoyment, against them and the heirs of either of them, for further assurance, and general warranty, and recites a lease to precede. But ■there is no lease in existence, nor evidence of any renunciation of Mrs. Washington’s inheritance. Pierce, White and Call, conveyed to Leonard Cecil, and Leonard Cecil to John Ferrie. Charles Murray resided abroad, and the original bond and mortgage of David Murray were lost. •In 1787, his agents, Penman *&*Tunno, by his direction, filed a bill in the Court of Chancery, for Charleston district, to forceclose the mortgage against Thomas Washington, Charles, his wife, and Edward Telfair, executor of David Murray. About the same time, Catharine Greene, executrix, Edward Rutledge, and Jeremiah Wadsworth, executors of Gen. Green, filed a bill in the same court, against John Ferrie, to subject Nelville to the payment of debts due Gen. Green, by Hunter, Banks, & Co. Mr. Murray amended his bill, and made Ferrie a party, and the two causes were heard together on the 24th June, -1788, and the land was ordered to be sold by the master, and Ferrie to join in the title; which sale, by a subsequent order, was directed to be according to the terms of the in-stalment law; and on the 26th June, 1789, Mr. Gibbes, the master, reported that in obedience to the orders of the Court, he had proceeded to a sale of Nelville, containing 870 acres, on the 11th February, past, and the same was bought for £4: 15 per acre, or £4146:15, by EdwardPen-man and Adam Tunno., which report was the same day *159confirmed. The report does not state that Ferrie had joined in the conveyance, nor that any conveyance had been made, nor that the purchasers liad complied with the terms of sale. And in fact they did not comply, nor was any conveyance ever executed.

On the 26th June, 1790, the court made a decree, whereby, after reciting, among other things, that the master had reported that the plantation had been sold, and Ferrie had joined in the conveyance, thereby accounting for the fund which the complainants have alleged to be vested in said plantation, it is ordered, that after applying such parts of the securities as shall be sufficient to discharge the mortgage of Charles Murray, and the costs of the suit, the master should deliver the remainder of the securities, for which the plantation was sold, to the executors of Gen. Greene, and Ferrie be discharged.

On the 4th March, 1790, Mrs. Greene petitioned Congress for relief against the debt of Hunter, Banks and Co., to Newcomen and Collet, and on the 27th April, 1792, relief was granted by an act of Congress, and £8688 : 6 appropriated to that purpose, subject to a deduction of the amount recovered in the above mentioned suit. That is to say, as expressed in the act, “that the said executors of Gen. Greene shall account for a sum being about £2000 sterling, be the same more or less, recovered of John Fer-rie, one of the partners of the said Banks *&*Co., by the executors, to be in part of the indemnification aforesaid.” It appears that the accounting officers of the treasury, credited Gen. Greene with the said sum of £8688: 6 and charged him with £4146: 15 less the amount then due on .Murray’s mortgage. And afterwards, on 1st June, 1796, a further sum £11297: 9: 8 was appropriated, to indemnify Gen. Greene’s estate against a similar demand of Harris *&*Blacldock.

Mr. Murray was informed by his agents that the plantation had been sold, and that they had bought it on his account; but they alleged that they could not sell it, because the title was disputed by Lachlan Duff and John Duff.

No measures were taken against Tunno and Penman, by the executors of Gen. Greene, And Mr. Murray was *160not informed of the interest of Gen. Green’s executors in the land; and between him and his attorneys, the land was treated as his own, and they accounted for their inability to sell and remit the purchase money, on the ground that no sale could be effected while Duff’s claims stood in the way.

The Duffs employed Judge Desaussure, then at the bar, and afterwards Mr. Woodruff, of Savannah, and Mr. Ford, to prosecute their claim to Nelville. They claimed under Patrick M’Kay, Sutherland’s grant; David Murray claimed under Patrick M’Kay, Stobo’s grant, and neither party could produce a conveyance from M’Kay. A conveyance, by lease and release, from Patrick M’Kay, and Isabella his wife, to David Murray, dated 16 and 17 June, 1765, seems to have been forwarded to Mr. Tunno, by the friends of Mr. Murray, in 1808, but no further account is given of it. Duff’s deeds were alleged to have been lost many years before. The controversy was kept up between Mr. Higham, as agent of the family of Mr. Duff, and Mr. Tunno, as agent of the family of Mr. Murray, until 1826, when they submitted the matter to the decision of Mr. Parker who decided against the claim of Duff, on the ground, that Sutherland’s grant did not cover Nelville. The deed of Patrick M’Kay, and Isabella his wife, to Helen Gordon, from a copy in possession of the parties, is said to bear date, 21 and 22 Dec. 1768.

Charles Murray died in 1809, and administration of his estate was granted to Charles Scott Murray, his son, by the prerogative Court of Canterbury, and he appointed Adam Tunno his agent and attorney in this country.

There was no actual possession of Nelville, from 1783 to 1819. But Adam Tunno paid the direct taxes — made a survey in 1812, reclaimed a part of the land from Judge Huger, offered it for sale, as agent of C. Murray, and C. S. Murray, his son, In 1819, Louisa Omones, the daughter and heir of Mrs. Washington, entered, built a house, and occupied it from time to time, for two years, and during that time cut timber on the land.

Nearly every part of Nelville is covered with water twice in 24 hours, and it was never cultivated frotó 1783 till 1823, when Mr. Rose, and Mr. Rutledge took possession *161with the knowledge of Mr. Tunno, and declared that they held the land for the owner in England.

Louisa Omones died in 1822. Her claim was taken up by one Hamlin Mallory, as her husband and heir. He died, and Wm. Mallory, his brother, claimed the land, as one of his heirs. In 1825, Dr. Daniel purchased the land from Hamlin Mallory, for $3000. The contract was verbal, but a memorandum of 13th October, 1825, signed by Mallory, acknowledges the receipt of $351, 68, in part payment.

By agreement with Mallory, a bill was filed in his name, at Coosawhatchie, at Dr. Daniel’s expense, and by his solicitor, against certain parties out of the State, represented as co-heirs of Hamlin Mallory. The bill and the proceedings are lost. But a decree was made for a sale, and on the 2d of October, 1826, the land was exposed to sale, by Mr. Joyner, commissioner in Equity. Mr. Tunno gave notice at the sale of the adverse claim of Mr. Murray, and of the possession of Mr. Rose and Mr. Rutledge under it; and Dr. Daniel became the purchaser at $1190, and received a deed. He afterwards paid $1500 to the heirs of Murray, and the bond remains in the hand.of the commissioner, in Coosawhatchie. In February,' 1826, Mr. Rose attornied to Mr. Murray and Mr. Duff, in whomsoever the title might be, and they, by their attorneys, Tunno and Higham, authorized him to hold Nelville, as tenant, at a rent of one dollar per annum.

In 1827, Dr. Daniel entered on Nelville, and Mr. Rose indicted him for forcible entry and detainer, and at April Term, 1827, the Grand Jury for Beaufort district found a true bill against him and his overseer. On the 9th of November, when the case was ready for trial, the indictment was compromised, and Mr. Rose and Dr. Daniel entered into an agreement that each should hold certain parts of the land, and that the possession on both sides, should be without prejudice to the right.

At April Term, 1828, Dr. Daniel commenced his action of trespass to try title against James Rose and John Rutledge, which action is still pending. In October, 1830, the complainant administered on the estate of C. Murray, on behalf of his son and representative, Charles S. Murray, *162by the request of Tunno ; and filed his bill to enjoin the proceedings at law, and have the decree of 1790 carried into execution.

This bill is sworn to by Mr. Tunno, and asserts that the purchase money under the sale in 1789, was never paid, nor any bond given for it, nor any conveyance executed by Mr. Gibbes, and that all the acts of ownership wrhich he had exercised, were done as the agent of Charles Murray, and C. S. Murray, his son. While these proceedings were pending, Dr. Daniel administered on the estate of David Murray, which fact he set forth in his answer, *but gave*no account of assets, and none in fact came to his hands. The injunction which was granted on filing the bill, was dissolved in 1834. In January, 1835, the case was heard by Chancellor Johnston, and in January 1836, a decree was pronounced, dismissing the bill for want of equity. From this decree, the complainant appealed, and in March, 1837, the Court of Appeals delivered their judgment, admitting the complainant’s equity, and the nullity of the defendant’s title, but dismissing the bill for want of parties.

The defendant, Dr. Daniel, having declined to try his action at law, this bill was filed in April, 1838, against Dr. Daniel, as purchaser of the title and estate of D. Murray, in Nelville, from the heirs of the devisee, praying no decree against him as administrator of D. Murray, and against P. M. Nightingale, administrator *cum test, an., of*Gen. Greene, and John Feme, or his heirs to revive the decree of 1790.

As to Feme and his heirs, the bill is taken *pro cortfesso.*Mr. Nightingale answers, claiming the benefit of the decree of 1790, as being still unsatisfied, and Dr. Daniel answers, insisting on the sale made for partition, between the heirs of Mallory, and on the presumption, that the mortgage of D. Murray has been satisfied.

In January, 1840, the cause was heard by Chancellor Johnston, who dismissed the bill as to Dr. Daniel, and retained the same as to Ferric and Nightingale.

DECREE.

I think that the decrees in the cases of *Murray vs. Telfair et. al.,*and *Greene vs.*Ferrie, are conclusive of every matter therein adjudicated, both as to the parties themselves, *163and as to all persons afterwards becoming privies to them. This is certainly true, as to every point directly decided, though the position cannot be extended, so as to‘include facts not falling within the statements of the record or judgment.

As observed, (2 Evans, Poth. 357, Append. No. 16,) neither the judgment of a concurrent or exclusive jurisdiction, is evidence of any matter which comes collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment rendered in the case.

In the records of the cases mentioned, there is, however, no necessity to resort to inference. — The proceedings, mutilated as they are, state the execution of the bond and mortgage; the fee descended to Mrs Washington; the alienation of that fee and its conveyance to Ferrie. The decrees establish the facts and profess to dispose of the interests of all parties connected with the debt and the land,- by a sale of the land, and by making provision out of the proceeds for the payment of Charles Murray’s demand, and transferring the residue, (to which Ferrie, as owner of the encumbered premises, would have been entitled,) to Greene, in satisfaction of the claim he held against Ferrie. Nothing of this is left to inference or argument, but every fact stands established by the decrees; from which, for the reasons given by Chancellor Harper, I am to suppose all the persons mentioned in the proceedings as parties, were parties.

This view renders it unnecessary to enquire whether the proof offered of the mortgage and of the conveyances from Washington and wife down to Ferrie, is legally sufficient. The proof is dispensed with by the decrees; in which all anterior evidence was merged, and which, from the time they were pronounced, became the substitute of the witnesses, to bear testimony to the facts. Recurring .to the dates of the decrees, we have the following facts, which no party to these suits, or his privies, can be allowed to controvert; that the mortgage was then unsatisfied; that the fee and equity of redemption had been divested out of the mortgagor and his heirs, and was in Ferrie; and that he was debtor to Gen. Greene, to a greater amount *164than it was worth. That was the judgment of the court, which for the safety of society, must be taken to be correct. We have the further fact, equally incontrovertible, that the entire interest in the land was decreed to be sold.

Here the connection of David Murray’s heirs with the suit stopped. Their interests had been disposed of by the adjudication, that they had years before parted with them. They had no interest in the sale to be made, nor any longer any title to be affected by it. The decision had cut them off, and substituted Ferrie in their place, and they were ejected from the forum, leaving Charles Murray, Greene, and Ferrie, to look to the sale, and to dispose of the proceeds, according to their respective interests in the mortgage, the equity of redemption, and the fee.

This was the state of the parties on the 24th of June, 1788, when the decrees upon the merits of the cases were pronounced.

Whatever was done by any of the parties, retaining a standing in court, interested in the subject matter of the suits, within the court, or out of the court, after that time, cannot, in my conception, affect the heirs of David Murray. They had no power either to produce or prevent, accelerate or retard, any after action of the parties retaining an interest in, and a control over, the further execution of the decrees. And it does not appear to me, that the dealings or declarations of these last mentioned parties, among themselves, are any evidence whatever against those who1 were excluded and made strangers by the previous decrees, even if the proof offered of them was of the regular and ordinary kind. Still less are they competent, when the proof offered, consists of copies of letters and other papers, without establishing the genuineness or loss1' of the originals, or shewing where they were found, otherwise than by ex parte affidavits.

Against the representative of Gen. Greene, (who doe® not object,) this evidence is good enough. And it is good enough, (even if evidence was required,) against the heirs of Ferrie, (who, I take it for granted here, are made parties,) the bill having been taken *pro confesso,*as to them.

I shall therefore separate the parties, defendants, at the date of the decrees of 1788, and shall consider all the after *165transactions of the parties thenceforth interested, to he good evidence, as against Ferrie and his heirs, and Gen. Greene and his representatives, hut to he no evidence as against David Murray’s heirs. The latter are, however, entitled to the benefit of any act or declaration, which may operate in their favor, inasmuch as it certainly would have heen competent for them, to have offered in evidence, any thing done or said by their opponents.

The master was ordered to sell the land upon a credit, secured by bond, and that *Ferrie join in the conveyance ;*the proceeds to remain subject to further order; and that an account be taken to ascertain the demand of Gen, Greene against Ferrie. On the 26th June, 1789, the master reported that he had executed the decree by selling Nelville to Edward Penman and Adam Tunno, on the 11th of February preceding, for £4146: 15, which report was confirmed by the court on the same day. The report and order of confirmation were made in the case of *Murray vs. Telfair.*

The record of *Greene vs. Ferrie*is much mutilated • the bill and answer having been lost. It appears that the two causes proceeded *pari passu;*and although there is no report of the sale in that case, it is presumable there was one.

On the 26th of June, 1790, an order was made in the last mentioned case, reciting that the master had reported, that the land had been sold by him, in conformity to the decree, and that *Ferrie had joined in the conveyance.*The order proceeded to recite, that whereas it was uncertain whether the account between Greene and Ferrie could ever be stated, the parties having the books being without the jurisdiction ; and it was *decreed*that after applying such part of the *securities*as might be required to satisfy the mortgage of Charles Murray, to that purpose, and after payment of costs, the master deliver the residue of the *securities for which he sold the said*plantation, to the executors of Gen. Greene, in discharge of Ferrie from the General’s elaim, (which was larger than the said residue.)

Here the proceedings in court stopped. If Penman and Tunno had taken possession, or done any overt act from which ownership could have been inferred, or supporting *166a presumption of title, can it be doubted that the facts I have stated, unless explained away by testimony, would have raised the presumption that the decree had been fully executed, and that they had been invested with a title to the land?- And if, at this day, either Greene or Murray had sought to enforce their demands against them or the lands, can it admit of a question that they might have relied on the lapse of time, (near 50 years,) as presumptive, that their securities, given for the land and the decrees themselves, were long since paid off?

The order declares, that the land had been sold to them. It strongly implies that the securities were given. It expressly declares that Ferrie had joined in the conveyance. Joined whom? The master. Is this no evidence that the master had conveyed ? Joined in a conveyance to whom ? Surely to the purchasers.

The presumption is, that the decree was executed. These statements, made by the parties, would certainly be evidence against them to that effect.

But it is said the fact was not so. There are other facts to confirm it. No proceeding whatever was instituted, by way of executing the decrees, or otherwise, either by Charles Murray or Gen. Greene’s representatives, to subject Nelville to their demands, from the *date of*the order of 1790, to the filing of the bill in *Cruger vs.*Daniel, in 1830, a period of 40 years; although the agents of Murray were all the time, and one of the executors of Gen. Greene, (Mr. Edward Rutledge,) was, until 1804, on the spot. Up to the time of filing the present bill, in April, 1838, no pretension was ever set up on behalf of Gen. Greene. Without explanation, what would be the presumption ? Certainly that the debts were paid out of the securities, raised by the sale to Penman and Tunno.

. In Gen. Greene’s case, his executors applied to Congress to indemnify him against engagements entered into by him, in his private capacity, for the public service; which was indeed the character of the transaction which gave rise to his claim against Ferrie. Whether this application was made before or after the order of 1790, the evidence not having been furnished to me, I have not the means of ascertaining. It was certainly before the last *167instalment, due by the purchasers of Nelville, was payable, and probably before the second if not the first; because the act granting the relief, was passed the 27th of April, 1792. By this act the sum £8688: 6 was appropriated to the payment of the General’s engagement; upon its being shown at the proper department, that they were such as the public service required ; but the act required his estate to account for what might be recovered in the suit of *Greene vs. Ferrie.*I have not the act before me, but speak from the representation made at the trial.

It appears by evidence before me, that on the 12th of April, 1793, the executors presented the evidence of the character of the engagements entered into by their testator, and these were allowed in an account which passed the auditor’s office, on the 10th, and the comptroller’s office the 16th of May following, to the amount of $43,-526 35; from which was deducted the balance of the purchase *money of Nelville, (after*allowing the costs of the suit, and amount of Charles Murray’s mortgage,) amounting to $10,338 68. The general balance, in favor of Gen. Greene’s estate, by that account, was $33, 526 35, which was, by rejecting for the present, some of the contracts of Gen. Greene, in an account at the comptroller’s office, the 19th of April, 1794, reduced to $27,504 15; for which last mentioned sum, a treasury warrant was issued to the executors, the 21st of April, 1794.

It might be inferred from this transaction, that the éxe-cutors had received the sum due their testator, from thé sale of Nelville, and by way of accounting to the United States for it, permitted it to be deducted from the indemnity provided by Congress. If they had not received the money, or securities, which they considered as good as money, for Nelville, why should not the executors have received from the government the full amount of the indemnity provided, and to which their evidence entitled them *1*When I say they were entitled to the full amount established in the General’s favor, without deducting his claim on Nelville, before that should be received by the executors, I suppose that Congress did intend a real indemnity, which this would not /have been, if the intention was to withhold the money until the estate was already *168indemnified, by having received the money arising from the sale of the plantation, and then to go through the-idle form of receiving with one hand and paying over with the other.

If the other view be taken of it, that the executors had not received the money for Nelville, and could not obtain it from the federal government until they did, then the difficulty is to account for their not proceeding to execute the decree, upon a supposition that a sale yet remained to be made. Certainly Duff’s claim could not be the obstacle, for the first we hear of that is in Mr. Tunno’s letter of the 28th December, 1797, where it is spoken of as a recent thing.

As to the mortgage debt to Charles Murray, it stands upon grounds not much better. We find by the correspondence between that gentleman and Penman and Tun-no, (see his letter to them of November 29th, 1786,) that they were empowered to act for him. Their letters advise him, from time to time, of the state of the litigation, which led to the decree in his favour. He gives them instructions, in some instances, but leaves them full discretion. As the time approaches for the final decree, they inform him that the plantation must be sold; and that they think it advisable that they should purchase for him.

I refer to their letter of the 23rd of June, 1788, the day before the decree, in which they state their apprehensions that the terms of sale will be different from those which were decreed, and say. “We submit to you whether it might be prudent for us to direct the purchase to be made on your account, as we are very doutbful if, from the great scarcity of cash here, it will sell for the amount of bond and mortgage, when so much is to be paid down.

“In this event, we can hold the plantation for you, until a re-sale can be made to advantage, when part may be received down; the remainder by such instalments as you shall direct, with new mortgage taken as security.”

In their letter of the 26th March, 1791, they say, “Our letter 23d June, 1788, was pretty full as to our determina-, tion to purchase this plantation on your account, in order to secure your debt. We had no other object in view, as it is totally out of our line to be proprietors of land in this *169country. As an alien cannot hold such property, we therefore consider ourselves as holding the plantation on your account, until the disposal of it can he directed.”

These two letters disclose the true state of the case. The purchase was made on account of Mr. Murray, hut as the agents supposed, the titles could not, on account of his alienage, he made to him, they were to hold until they could sell and convey upon terms to make his debt secure.

The difficulty as to Duff’s claim, was no obstruction, for that claim was not brought forward for years after-wards.

If they did not take titles and give bond, relying on Melville (the titles being in them,) for indemnity; if they considered themselves as having merely suspended the sale by their bid, why is nothing said of the manner in which Gen. Greene’s executors, who were entitled to the excess over Mr. Murray’s debt, had been brought to acquiesce *1*And why, if the sale was merely suspended, was the order of 1790 made, which, by its recitals and its directions to distribute the bonds given, is in direct contradiction to such a supposition.

The further sale to which the agents look, the terms of which are not to be according to the decree of the court, but as Mr. Murray shall direct, implies that a title had been taken, which gave them control over the subject.

The after correspondence, in which Mr. Murray’s debt is spoken of as unpaid, does not conflict with this view, for it is plain that all parties considered the land as his, and as such, to be sold when a suitable purchaser could be found; and until that could be done, his debt was deemed to be unsatisfied. And there was a reason, why, although the land was his, in the hands of his agents, he did not consider that as a satisfaction of debt, but still looked to the debt itself, as what he was to recieve out of it.

It is to be found in certain instructions given to his agents, to remit a portion of the proceeds, when collected, to his brother’s family ; but so as to leave him the sum .originally loaned, and part of the interest. Thus, in his letter of Nov. 29th, 1786, he says, “ upon receiving this money, I have to beg, after deducting commissions <fcc., *170that )rou will be so good as to remit it,” <fcc., “ all but the sum of £500, (it is only to be taken from the last payment,) for the disposal of which, I refer you to my instructions inclosed,” (in favor of his brother David’s widow and daughter,) “observing, however, that if you are obliged to accept of this money by instalments, that the £500 is only tobe taken from the last payment or payments, so that before that sum shall be invested as I have directed, I must have been actually reimbursed, by the receipt in London of the capital lent, and of the surplus of the interest due, after deducting the said sum of £500, and the commissions and charges as aforesaid.”

I must say upon a view of all the evidence, including that which has been received by the consent of Mr. Nightingale, that if any objection was made, either by him or the heirs of Feme, I do not see any thing which entitles the executor of Charles Murray, to an enforcement of the decree of 1788. The presumption is, that the decree was executed at the time. Tlie presumption, if that were not so, is, that the debt established by that judgment has been paid.

If fifty years will not raise the presumption of payment of a judgment, what time will be sufficient 1 As to the idea that any correspondence kept up, for any imaginable period, between a creditor and his agents, in which nonpayment is asserted, in terms as strong as language can afford, is to rebut the presumption, either as against the the debtor or third persons — I cannot entertain it for a moment. It is correspondence and no more. There was no act done. Allowing that no title was made to Penman and Tunno, and that after the sale of 1790, all parties stood as before, except that the debt was established, and an order for sale made; it is said the mortgagee was in possession and that presumption of payment will not run. It is said in the bill, and said truly, that there was no actual possesion until 1823. Constructive possession of a mortgagee will not — nothing, less than actual possession will, rebut the presumption of payment. The actual possession, if acquiesced in by the mortgagor, without any effort to redeem, does rebut it, because it is natural to suppose that he would not acquiesce if he did not owe the *171debt. The title of the mortgagee, (speaking now of a mortgage before 1791,) is good, and draws to it the constructive possession, even after the expiration of 20 years, and after the debt is presumed to have been paid ; as it would, indeed, if the debt was actually paid.

Payment of the debt, actual or presumed, does not extinguish such a mortgage title ; it requires a re-conveyance to do that. But the debt itself must expire with the lapse of 20 years, unless there be some recognition of it by the debtor.

If this mortgage debt is to be considered as still subsisting, as the foundation of an equity, to have the decree of 1788 executed for its payment; a decree to that effect, can, in my humble judgment, be pronounced, only by virtue of the admissions of the heirs of Ferrie, and the consent of Mr. Nightingale. If they opposed it, it could not be done.

If there is obscurity in the plaintiff’s case ,who is to blame for it *%*The delay has been exceedingly great. No sufficient reason is given for it. Duff’s claim, when it was raised, formed no obstacle to an execution of the old decree. He was not in possession. If he bad taken possession, an action, either on the purchaser’s title, or the mortgagee’s, would have ejected him, if his title was not the better one. But it is said, that this claim would have prevented the conveyance of a title to any purchaser, which he, the purchaser, would have been compellable to take, and so the decree could not have been executed by a re-sale, until he retired. His claim might have had that effect. I see no remedy for such a case, within the scope of this Court. But certainly if Duff’s slander of the title on which this mortgage depends, formed a sufficient reason to defer the execution of the decree, from 1797 to 1838, and the mortgage debt is to remain in force on that account, I do not perceive why, in that way, a mortgage debt may not be perpetuated.

As to the heirs of David Murray, they became stangers to the mortgaged lands, from the date of Mrs. Washington’s conveyance, and certainly from the time that conveyance was established, by the decree of 1788. They have conveyed to Dr. Daniel. What other title he may have, he certainly is not bound to disclose in this Court. In their *172right, he is a mere trespasser; and as a trespasser, setting up an adverse right, this Court has no jurisdiction to try the validity of his title.

I will not go the length to affirm that if one comes in with the mere view of obstructing the execution of a decree, the Court, in vindication of its own authority, may not punish his contempt, and turn him out. It may even pronounce a decree against him, on that ground. So, if one colludes with a defendant to perpetuate his possession. If such a case were made out, and made out clearly, I should consider myself called upon to exert the utmost power of this Court to sustain its 'authority, and enforce its decrees. But when one, having every reason to believe that the decree of 1788 was executed, or if not executed, satisfied, has entered, and holds adversely, and when the presumptions are so strong that there is no debt now due, on the decree, and that there is a title in the purchaser, and, above all, when there is so much obscurity in the plaintiff’s case, coupled with so much negligence, I feel that the plaintiff has no equitable right to call upon the Court, for so strong an act, as to determine upon the validity of this defendant’s title, without the intervention of a jury, to whom, and not to this Court, such an investigation belongs.

The same view was taken of this point by the Court of Appeals. For if they had not considered Dr. Daniel in the light of a stranger, having no sort of privity with the plaintiff, they would not have dismissed the bill, but have ordered the cause to stand over, that other parties might be added. The truth is, that is the only point adjudicated in the former case.

As to this defendant, considered as an occupant and claimant of the land, I put my decision on the ground, that if a title was taken under the sale of 1790, the plaintiff has no right to come here; if no title was taken, the presumption of payment, arising from the very great lapse of time, coupled with, evidence of unaccountable neglect, and the obscurity in which the whole matter now stands, deprives him of all equitable claims on the Court, for a decree, to the prejudice of third persons.

If the plaintiff has any rights which he can enforce *173at law, let him do so ; and that tribunal is the one having cognizance of a case, which, whatever appearances it may present, is plainly neither more nor less than an action to try title.

Considering this defendant as the administrator of David Murray, the case stands no better for the plaintiff. The bill waives all claim on him for the payment of the bond. This entitles him to be discharged from the Court. But besides, he contends that the debt has been paid ; and I think the legal presumption, to say nothing of what is contained in Mr. Tunno’s letter of the 28th of December, 1797, referring to one from John Murray, (who had possession of the bond and mortgage,) of the 20th of June, 1789, and a paper made out by Mr. Penman, on the 19th of the previous month, (see page 16th of the old brief,) fully bear him out. It is said, that as the plaintiff makes his claim on the land, and not on the administrator of David Murray, the administrator has no right to insist on the presumption of payment; but it must be remembered, that it is only on the supposition that the debt still subsists, that the plaintiff has a right, as mortgagee, to deprive Dr. Daniel of the land; and surely he has a right to protect his personal rights, by the interposition of his official authority.

The plaintiff cannot be permitted, of his own head, by any waiver, or by any admission in his own favor, to entitle himself to property, in possession of another; that other must have a right to question whether the foundation there laid for a claim against him, is real, or fictitious.

It is decreed that the bill be dismissed, as to the defendant, Wm. C. Daniel.

The cause will be retained, as to the other parties, to allow them to determine whether they will take a decree for the sale of the premises, now, or after they shall have had an opportunity to test the validity of Dr. Daniel’s title at law. When application shall be made for further proceedings, the question which was raised between Mr. Nightingale and the plaintiff, respecting a right to interest beyond the penalty of the bond, can be determined. As between these parties, I incline to the opinion, that it is not necessary to inquire whether the mortgage will entitle *174the plaintiff to go beyond the penalty; because the plaintiff may rely on the decree of 1788, as a judgment, carrying interest, and by the terms of that decree, to be preferred to Gen. Greene’s.

From this decree, all parties appealed.

Mr. Petigru, for complainant.

The complainant claims payment of his mortgage for one thousand pounds, lent to David Murray, in 1770 ; and will first discuss the right of the mortgagee, and next the propriety of the remedy.

As mortgagee, the complainant has the constructive actual possession, as long as the possession is vacant; and since 1783, the possession has been in Ferrie, or it has been vacant. But a mortgage can never lose its effect, as long as the mortgagee is in possession, or any one is in possession, who acknowledges his right. Washington and wife, being in actual possession, their deed transferred that possession to Pierce, White and Gall. A lease and release is equal to a feoffment, in transferring possession. 2B1. 339. In conveyances under the statute, the bargainee has a complete seizen in deed. *Green*vs. *Liter.*8 Cr. 229, 246. There are two sorts of frank tenement, tenant in law, and tenant in deed. Go. Lit. 358 b. The freehold in law is in him that has the right, when no one is in possession. Go. Lit. 15, B. The distinction is illustrated by the action of assize — assize lay only for him that had the actual possession. 3 Bl. 184. But the *recipe quod*reddat, lay against the freeholder, generally, and therefore against the party having a seizen in law, (16 Vin. 507; F. N. B. 350,) as well as against him that had seizen in deed. Even when another person takes the profits, unless the true owner is prevented from coming on the land, he is still, in contemplation of law, in actual seizen. Ld. Ray. 829; 1 Salk. 246 ; 1 Leon. 209. To the same point, the modern authorities. A grant, when possession is vacant, vests the actual constructive seizen in grantee. *Barr*vs. *Gratz.*4 Wheat. 213, 222. And as long as the possession is vacant, this constructive actual seizen exists. The real owner is considered in possession, unless there is an exclusive adverse possession. “ Where two be in one house, or other tene-*175menta, and the one claimeth by one title, and the other by another title, the law adjudgeth him in possession, that right hath.” Co. Lit. 368 D. “ I cannot hold the owner out of possession, unless you shew me some other person having adversely obtained possession.” Per Ld. Eldon. *Pigott*vs. *Waller.*7 Ves. 122.

Apply these principles to the present case. The legal estate was in Pierce, White and Call, and through them in Ferrie. But Ferrie purchased, subject to the mortgage; has always held in the same character, and could not, of course, resist complainant’s right, whether he chose to enter, or forclose. Nor does he resist, for the bill against him is taken *pro confesso.*Supposing Ferrie, or his heir, in possession, it is the case of a mortgagee proceeding against the lands, in the hands of him that admits his right, and makes no defence.

But it is objected, that the deed of Washington and wife, to Pierce, White, and Call, for want of the wife’s examination and release, transferred not an estate in fee, but an estate for life, to wit, the life of her husband. But even if the deed is invalid, it is a mistake to say, that it does not convey a fee. If a man takes a deed in fee, he has a fee simple, though it may be an estate in fee by wrong. F. N. B. 350. A deed by the husband worked a discontinuance, and the wife was driven to a *cui in vita.*This was altered by Stat. 32, Hen. VIII, c. 28; but ever since the statute, she cannot maintain ejectment without a previous entry, the entry being necessary to defeat the seizen of the purchaser. Com. Dig. Discontinuance, A. 3. That statute is not in force, and a discontinuance in South Carolina stands on the same grounds, as at common law. It is true, that this may not be strictly a discontinuance, since the alienation was by lease and release, not by feoffment. But all deeds under the statute transfer the possession, and so the deed of Washington vested the fee simple of Nelville in Pierce, White and Call. And though the wife might maintain ejectment after his death, without a previous entry, still, the question is, what is the state of the case, if she never sues or enters ? The legal estate must be in the purchaser; for though his estate originated in wrong, yet he is in lawful possession, claiming the fee. *176To test the question, suppose the purchaser to he ousted by a stranger, and bring ejectment; could the defendant treat the husband’s deed, conveying the wife’s estate, as a nullity *1 Bose*vs. Daniel, Tread. 549, is in point. The deed is good against all the world but the wife herself, or those claiming under her.

The defendant claims under the wife, and may avoid the deed, if he can. But until his entry, in 1829, the freehold was in the purchaser and his assigns, and the time which elapsed, ran against defendant’s title, not against complainant’s. The question, then, is to be tried on its merits, without prejudice, from the lapse of time, or the statute of limitations. It is plain no title has been acquired by either party, since 1827; the litigation then commenced, is still pending, and the possession from that time is under a written agreement, without prejudice to the right. But when defendant entered, in 1827, he was a tresspasser. Mrs. Washington had no right of entry, for, independent of the deed of Washington, the legal estate, or right of possession, was in Charles Murray, by virtue of the mortgage term of two thousand years. If Mrs. Washington had brought ejectment against Ferrie, she must have failed, on account of this outstanding term. *Turner*vs. Richmond, 2 Yer. 81; see Run. on Eject. 15, 42, Adams 32; Pow. on Mortgages, 479.

Thus the defendant, even if he could entitle himself to the possession against Ferrie, cannot be regarded as the true owner, as against the mortgagee. Therefore, while the possession was vacant, neither Mrs. Washington, nor Mrs. Omones, nor defendant, can be considered the tenant in law. But the legal possession was in Ferrie, or in the mortgagee. There is every reason to believe, that the examination and release of Mrs. Washington are lost. The lease, to precede the release, is wanting; but the existence of it, though it is not found, and was not recorded, cannot be disputed, because the recital of it in the release, is proof against privies; Phil. Ev. 410; and Daniel is a privy. *Grane*vs. Morris; 0 Peters, 610. Now there is as much reason to believe in the existence of the one as the other. The large sum paid by the purchasers, the attention bestowed on the title, as evinced by the deeds of Cecil and *177Feme, which were executed very soon after Washington’s, and the importance attached to the property by all the parties, render it highly improbable that they paid their money without Mrs. Washington’s renunciation. Execution of a deed is presumed from circumstances. *Skipivith*vs. Shirley, 11 Yes. 64; *Ward*vs. *Garnons,*17 Ves. 140; *Tunstall*vs. *Trappes,*3 Lim. 308.

But the decree of 1790 is *res*judicata, and proves complainant’s case; proves the mortgage to Charles Murray, proves that Washington and wife conveyed to Pierce, White and Call, and supplies the loss of the renunciation of inheritance. This matter is put beyond controversy by the decree of 1837. If additional authority were wanting, it is supplied by *Vorhees*vs. *the Bank of the United States,*10 Peters, 449.

What is the effect of lapse of time 7 To confirm the title of the purchaser. But the defendant relies on lapse of time, to restore the property to the vendor. The same sort of case, as he relies on, could be set up by the heir of any man who sold land seventy years ago, which the purchaser has never improved.

As to the remedy, the defendant claims, as administrator of David Murray, to prove that the debt of David Murray is paid, and adduces lapse of time as proof of payment.

In reality, there is no administrator of David Murray. The Ordinary has no right to grant administration, where there are no assets. *Thompson*vs. Buckner, Riley 33. But the administrator is not a necessary party to the bill, whether considered as a bill to foreclose, or a bill to revive. Story Eq. PI. 163. It is as a purchaser from the heir, that the defendant is a necessary party. In that light, and in that light only, his interests are sought to be affected by the bill. *Brown*vs. *Blount,*2 Rus. <fe My. 83. The heir of a mortgagor, is an indispensible party to a bill to foreclose. Story Eq. Pl. 180.

The defendant, as purchaser from the heir of the mortgagor, is sued by the mortgagee, and endeavors, by taking out administration to the mortgagor, to alter the situation of the case. This is irregular, for the administrator has no interest in the case. No decree is sought against him, and *178if the administrator were a third person, it would be plain-’ ly seen, that whether he had or had not assets, he had nothing to do with this case. Why, then, does the defendant thrust the administrator forward 1 If defendant can shew that the mortgage has been paid, complainant’s case is at an end. But he shews nothing. . He relies entirely on presumption. But presumption, in the sense in which it is used here, is only an inference from circumstances. *Goodtitle vs. Chandas,*2 Bur. 1072. Time alone raises no presumption. *Eldridge*vs. Knott, Cow. 214. The principle is, that what parties have long acquiesced in, must be founded in right *Miliary vs. Waller,*12 Ves. 239. Between debtor and creditor, the presumption arises when there is a party to pay, and a party entitled to receive. The creditor’s acquiescence in his debtor’s withholding of payment, raises the presumption. But what has Charles Murray acquiesced in *%*What did Mrs. Washington, or her daughter, withhold from him 1 What did Ferrie acquiesce in *%*That his land should lie waste. But though a man does not improve his estate, that raises no presumption against his title. This is the secret of the defendant’s anxiety to bring in the administrator. There is an inference from a bond creditor, suffering his money to remain in the debtor’s pocket, against the debt: but there is no ground to draw such an inference from a mortgagee, suffering his land to remain vacant. Had *he*suffered the mortgagor, or any body else, to keep possession, or to enter, the altered circumstances of the case would justify a different inference.

Where there is no right to sue, neither the statute nor presumption of payment, runs. *Carey*vs. Stephenson, 2 Salk. 421; *Murray*vs. *E.*J.-, Co. 5, Barn, and Aid. 204; *Kennedy*vs. *Edwards,*3 McCord 457.

The presumption of payment is raised against a bond by the lapse of 20 years, exclusive of all disabilities. *Dunlap*vs. *Ball,*2 Cr. 180. But it is rebutted, by any thing which explains the delay, or disproves the fact of payment ; as by a claim' inconsistent with payment; *Reeves vs. Bryrner,*6 Ves. 516; by the inability of the debtor; *Fladong*vs. *Winter,*19 Ves. 196; by denial of the debt; *Baily vs. Jackson,*16 John. 210; by efforts of the debtor *179*to*evade payment; *Pompet*vs. Windsor, 2 Yes. 472, 482. But is there any thing so conclusive against the presumption, as the fact, that there was no person bound, to pay? In this case the land was the debtor, and the only debtor. If a third person had entered, and taken the profits, a presumption would have arisen against the title of the mortgagee ; but as long as the land was vacant, there was nothing for a presumption to stand on.

That the land was the debtor, is one of the consequences arising from the peculiar nature of a mortgage, which is in one sense a loan, in another a conveyance. *Cumberland*vs- Codrington, 3 John. Cli. 229 . *Evelyn*vs. Evelyn, 2 P. Wms. 664 ; see Pon. on Mortgages, 920 *et seg.*If David Murray had conveyed the term, without any bond, or covenant to pay the loan, he would have been liable, as the terre-tenant, to an ejectment; but he never could have been sued for the debt.

How the condition of the mortgagor, who gives no bond nor covenant to pay the money, is the identical situation of every purchaser who buys property subject to a mortgage ; and the rule is the same as to the heir or devisee, if the debt is not by bond. Washington could not have been sued, as heir of David Murray; neither could those to whom he sold. Charles Murray might have sued Washington and wife, charging her, as devisee, under the statute against fraudulent devises. But in 1786, he gave his assent to the sale, to Pierce, White and Call. It is presumable, the personal estate was already exhausted ; but whether or not, from that time Charles Murray exonerated the personal estate, and agreed to look to the land alone. This is the hinge of the case. The presumption from the lapse of time, only confirms the evidence, that Charles Murray had exonerated the personal estate, and that his only remedy was against the land, by ejectment, or by a bill to foreclose. He could not sue the purchaser, or any one else, for the debt. A mortgagee has three remedies. May sue on the bond, bring ejectment, or file a bill in equity. 10 John. 481. He may waive one, and resort to the other, or may lose the benefit of one, and retain the others. The bond may be presumed satisfied, but the mortgage remains. *Toplis*ys. *Baber,*2 Cox 118; *Stewart*vs. Nichols, *1801 Tam. 307; *Jackson*vs. *Pierce,*10 John. 414; *Bank*v», *Gutschlick,*14 Peters 29. The question is, whether the mortgagee is debarred from his remedy on the mortgage, by ejectment, not whether he is barred from an action on the bond; and the questions are perfectly distinct. But there is no presumption of payment at all. If any payment, it must have been after 1790. Who was to pay?Neither Mrs. Washington nor Ferrie, can be supposed to have paid, because neither was under any obligation to pay.

But it is supposed to be extraordinary, that Charles Murray did not act. The wonder is done away by the letters, which shew that he regarded Nelville as his. Very natural, that as an Englishman, he should suppose his mortgage was foreclosed. He urged Tunno to sell, and Tunno told him he could get no purchaser, on account of Duff. It is surmised by the decree, that Duff’s title opposed no obstacle. Every one that has land to sell, must have felt how much his chance of a purchaser is lessened by an opposing title. And in the shameful condition of the land law in this State, throwing the greatest difficulties in the way of the owner, by rejecting ancient deeds, though recorded, and requiring him, contrary to the law of Westminster Hall, which holds hisseizen, or his vendor’s, good, till abetter title is shewn, and requiring him to bring down his title from the original grant, by strict, not to say impossible proof, or be non-suited , it is not wonderful that people are neither forward to appear as plaintiff, or to pur-chaseland in dispute. But from 1790, Ferrie was a mere trustee for Greene; and as the personal estate of David Murray was exonerated, the delay of Murray and Greene affected nobody but themselves, and affords no pretence to an 'intruder to question their title.

But it is supposed that the letters which explain the transaction are not evidence. They are part of the *res*gesta,. *Douglas*vs. *Reynolds,*7 Peters 113; *Glyn*vs. *Bank of England,*1 Yes. 43, *lb.*54; Phillip’s Ev. 202,_ 117 ; Sir Wm. David Evans, 129, 285; *Rosebroom*vs. *Mllington,*17 John. 182. *Darby*vs. *Rice,*2 N. *&*McC. 596; Harper 38. “When a man’s title depends on his acts, his declarations will be allowed to give character to those acts.” *Hall*vs. *Janies,*3-*181McCord 222. See a learned note, *lb.*230. But the most complete analysis of the law on this subject, is in Mr. Joshua Evans’s note, *Barker*vs. *Ray,*2 Rus. 63.

But again, it is said, that Dr. Daniel is not amenable to this jurisdiction. Answer; he is liable as a terre-tenant. 2 Saund. 7 Cro. Car. 295: 14 Peters 153; Story Eq. PL 92. Besides, he cannot be permitted to say that he is a stranger to the title of David Murray, or to the decree; for as purchaser from the heir of the mortgagor, he is privy to the estate of mortgagor, and to all that affects it. *Crane*vs. Morris, 6 Peters 611; *Carver*vs. Jackson, 4 Peters 1; *Galloway*vs. Finley, 12 Peters 264. Entering under David Murray’s title, he is estopped from denying it. *Smith*vs. *Burlis, 9*John. 174; *Barr*vs. Gu'cctz, 4 Wheat. 213; *Jackson*vs. *Creal,*13 John 116.

The. decree allows complainant to proceed to a sale, leaving the claims of Dr. Daniel to be discussed by the purchaser. But the sale of litigation is abhorrent to the law. When a sale is to be made, all persons claiming title, must be brought before the Court, to quiet the title,' and protect those who act under the order of the Court, Mit. 139, S. P.; Story Eq. PI. 137.

The attempt to make the defendant a purchaser, without notice, is unsupported by a solitary circumstance of identity between him and such a person. He has not even got the legal estate. *Vatteir*vs. Hinde, 7 Pet. 252.

But if is doubted, whether there is any thing left for this Court to do, after the order of 1790. That decree could not transfer the estate. Equity acts *in personam.*Co, Lit. 290 B., note 249; 1 Sell. *&*Lef. 67; 2 do. 372.

Mr. Legare, for Mr. Nightingale.

Gen Greene, by his bill, afterwards revived by his executors, claimed Nelville in the hands of Feme, on the ground, that it had been bought with money, impressed with a certain trust, inuring to his use. The decree of 1790, declared Ferrie, in effect, a trustee for Gen. Greene, and after paying off the mortgage of Charles Murray, directed the proceeds of the plantation, to be paid to him. It is for the benefit of this decree that Mr. Nightingale comes, and he is entitled to it, unless it can be shown, that his rights have been lost by *182laches, or thaGthe title of Dr. Daniel, is better than Fer-rie’s.

1. If the decree of 1790 had been carried into effect, and the money paid into Court, Gen. Green’s representatives would have the same right to take it out now, as at the beginning. To a fund in Court, the officers of the Court acquire no right, whatever may be the lapse of time, or the inattention of the owner. But the principle, in effect, extends to every case, where the possession is vacant or fiduciary. No man loses his property, till some body else acquires it. As long as the possession of Nel-ville was vacant, the seizin of Feme is undisturbed, and while Feme is seized, the trust in *favor*of Gen. Greene, continues.

2. The defendant is estopped from denying the seizin of Feme, by the decree of 1790. *Judicium semper pro veritate accipitur,*Co. Lit. 39, a. A judgment is an estop-pel, concluding the party himself, and all who come in by privity of blood, as the heir, or privity of estate, as the purchaser, Co. Lit. 352, a. The decree of 1837, renders it unnecessary to enter into the argument, on this head, to shew that the decree of 1790, is binding on Washington and wife, as well as Feme.

But independent of that decree, the title of Nelville was in Feme.

By the common law, the husband’s deed transfers the whole estate to the purchaser, subject *to the*right of entry of the wife. That is to say, her entry was turned into a right, and only to be enforced by a species of writ of right, called a cm *in vita. 2*Kent, 133. Co. Lit. 326, a. And although this was altered by the statute, 22 Hen. VIII. c. 28, yet notwithstanding, the general words of that statute, they only changed the remedy, allowing an entry, or pos-sessory action, instead of the *cui in vila,*or writ of right; and until entry, or action brought, the alienation of the husband is still a discontinuance. *Com. Dig.*discontinuance, A. 3. The conveyance by lease and release, with warranty, makes a discontinuance. Co. Lit. 328, a.

But the statute, of 32 Hen. VIII. c. 28, is not of force in South Carolina. The conveyance by the husband, of the wife’s land, stands therefore as at common law. It is evi*183dent, that in 1712, when the Colonial Legislature adopted the common law, and part of the statutes of England, the statute 32 Hen. VIII, was excluded, for the purpose of permitting alienation of the lands of married women.— There was no office of fines, nor any regulation, by which their estates could be barred, and they left open the mode, by discontinuance.

It would be highly absurd to give to the alienation of the husband less effect than is allowed to it, by the statute Hen. VIII, when that statute is not of force here, and no other statute has been made, to abridge the effect of a discontinuance. That the wife may avoid-the husband’s deed, is admitted ; but the deed is not absolutely void, and the ancient authorities are in unison with the decision in *Rose*vs. Daniel, but the estate is in the alienee, till the wife enter, or bring her action to avoid it.

The master’s sale, without conveyance or payment of the money, did not even make the purcháser the equitable owner. *Machrell*vs. *Hunt.*2 Mad. 34. *Herbemont*vs. *Sharp,*2 McCord, 264.

Mr. Nightingale and the complainant are opposed, on the question of interest. The complainant is entitled only to the penalty of his bond. *Wilde*vs. *Clarkeson,6*7 R. 303*Ten*vs. Winlerton, 3 Bro. C. C. 489. But the case is much stronger, than between debtor- and creditor. ■ The complainant and Gen. Greene’s estate, are like tenants in-common, entitled in unequal proportions, to the purchase money of Nelville. In 1790, Mr. Murray, was' entitled to £2,000, and the General’s estate, to the residue. The delay which has ensued, is owing principally to the conduct of complainants agent, and it would be highty unjust, that the consequences of that delay, should be to increase his share, and to destroy the others.

Mr. Humt, and Mr. Bailey, were heard for the defendant, Dr. Daniel.

Mr. Petigru, in reply.

It is conceeded, that the Court will not interfere in favor of a stale claim, but between Dr. Daniel and us. The question to be decided is, which is the stale claim *1*In 1790, a decree is made, adjudging *184the fee simple of Nelville to he in Ferrie, hound hy a mortgage, in favour of Charles Murray, and a trust in favor of Gen. Greene. This decree is in conformity with the truth, and is supported hy the evidence of the contemporary correspondence, and all the circumstances which are known to us, corroborate the same conclusion. The person, who, it is now surmised, was wronged hy this decree, is Mrs. Washington, and she acquiesced in it, all her life, Her husband, died in 1791.* She lived till 1804, and tho’ in very reduced circumstances, and in the neighborhood of this estate, she never, as far as we know, breathed a doubt of having been wronged by Ferrie, much less by Charles Murray. From the latter, she received assistance, as a poor relation, and altho’ he was opposed and thwarted in his efforts to sell the land, the opposition did not come from her, nor from Ferrie, but from a title adversary to them. It is not till 15 years after her death, that this claim starts up in Louisa Omones, the daughter of Mrs. Washington. She made an entry, and endeavored to get her claim into notice, in order to sell, but her story imposed on no one. By D’Lyon’s evidence, it would seem that she quit in 1821. In 1822, she died. And then the Mallorys appear. They take up the old discredited claim of Louisa ■ Omones, with *185new marks of discredit, pretending that she was wife of one Mallory, though she did not hear his name, nor live with him, and died without relations, and so Mallory, became her heir, and through him, they inherit Nelville. From these people, in 1825, Dr. Daniel purchases a title, for which the vendors could certainly shew no possession at all, nor any act of ownership, whatsoever, from 1783 till 1819. The only memorial or paper, which they have to exhibit, is the letter of Charles Murray, to Mrs. Washington, dated 29th Nov. 1786, inclosing a copy of his letter to Tunno and Penman, directing them, out of the proceeds of Nelville, to retain £500, which he means to present to his niece, and instructs them to .invest for her use. The fact that Mrs. Washington and her daughter had treasured up this, paper so many years, shews the very reverse of any intention to discard his bounty, which. would be the same thing as opposing his title.

From 1783, when Mrs. Washington signed the deed to Pierce, White and Call, till 1819, the persons whom the defendant, and his vendors, the Mallorys, claim title from, were not in possession, and if they had any title, it was in opposition to a deed, sufficient at all events to transfer possession ; and therefore a dormant title : it must have been too, in opposition to a judgment of this Court, which was, at all events, *prima facie*evidence of right; and therefore a litigious title. When two persons contend for the title to land, of which the actual possession has long been vacant, the true test, to ascertain which is the stale claim, is, to en-quire who has had the constructive actual seizin *1*For it is evident, that the title of that party, who is by construction or intendment of law, in actual possession, cannot be deemed stale or obsolete.

But we have shewn, that the constructive actual seizin is in Feme, subject to the mortgage term of 2,000 years. The argument on the other side is, that Mrs. Washington might enter after her husband’s death, and, therefore, the constructive possession was in her. The fallacy consists, in confounding what is voidable, with what is void.. The wife may avoid the husband’s deed ; before the statute, 32 Hen. VIII, by a *cui in*vita, and since that time, by an entry. The statute is not in force here, but if it were, *186there must be an entry or action by the wife, to defeat the deed of the husband. But supposing the deed transferred only the life estate of Washington, she could not have entered, because the outstanding mortgage term was a bar. *Riggs*vs. JEJttis,-affirms, that a bargainee may bring an action without entry, of which there can' be no doubt, but nothing to the purpose here. Did Mrs. Washington enter'? We not only shew that she did not, but that she could not; the outstanding term being in her way. *Doe*vs. *Staples, 2*T. R. 696. *Goodtitle*vs. *Jones,*7 T. R. 45. The idea that the decree superseded the mortgage, comes from not considering, that at law, a mortgage is a conveyance ; 2 B. L. 159. The master is directed to sell, just as the mortgagee himself might sell, if the mortgagor released his equity. This practice of ordering a sale, instead of the English mode of decreeing a fore-closure, probably arose from the Act of 1784, authorizing aliens to lend a mortgage, P. L. 353. A satisfied term may be presumed surrendered, but never has it been denied, that the term, unless surrendered, bars the entry. *Farmer*vs. *Earle, 2*Wil. 26. The estate is not re-vested, without a re-conveyance by the mortgagee. In a bill to redeem, the decree always is to re-convey. *Yeates*vs. *Hwmbly, 2*At. 360. As this is a mortgage before 1791, these authorities are applicable. In no possible view of the matter, therefore, can it be said, that the constructive possession was in Mrs. Washington.

But constructive possession confers no right; we admit it. The statute of limitations does not run, and the right of each party is to be determined on its own merits.

But abandoning his own title as desperate, defendant en-deavours to set up a title in Adam Tunno. This would' be a good answer to an ejectment, but is a singular defence in equity. It is, however, unavailing, for it is impossible to shew title in Tunno. Defendant says, that we must presume that the master made a deed. Not if the purchaser never complied with the terms of sale. If he had applied to the Court for a deed, against the master, the Court would have required proof, that he had complied. If he had brought an action at law, for recovery of possession, the Court would not have presumed a conveyance to him by the master, in violation of his duty. But he never *187claimed the land; always honestly told, that he had not paid for it. Many people would go great lengths to get this land, and is the Court to presume that Tunno would commit perjury to get rid of it? When he swore to the bill, he put all presumption of his ownership out of the question. The contract he entered into by his bid at the auction, gave him no right in equity, much less the legal estate. Even in personal property, the right is not changed, without delivery of the thing, or payment of the price. Sliep. Touch, 222.

Interest is paid on mortgages without regard to penalty. *Clarke*vs. Abingdon, 17 Yes. 106. 2 Eq. Cases Ab. 610. Mortgagee shall have interest on interest, and be accountable *only*for what he received, not for what he might have received. *Per Lord Keeper Pinch,*1 cas. in ch. 258.

*

 The following extract, from “The Charleston Gazette, inclosed in a letter to Char, les Murray, was among the evidence received.

Thursday, March 24,1791. Yesterday,between 12 and 1 o’clock, was executed, pursuant to his sentence, Thomas Walsh, who had long been known in this State and Georgia, by the appellation of Major Washington, for counterfeiting the indents, issued by the authority of this State. His countenance was sickly, but his demeanor manly, and would have suited a conscience, void of offence. At a few minutes past 12, he ascended the scaffold, attended by the officers of execution, and was assisted in his devotions, by the Rev. Dr. Keating, pastor of tho Roman Catholic Church, to whom, as we are informed, he had confessed, that his name was Walsh, and been of a respectable family in Ireland; that he had not professed any x'eligious persuasion, for a series of years, but as he had been baptised agreeably to the rites of the Church of Rome, he wished to die a Catholic.

At the conclusion of his devotions, he was asked by the Sheriff, if he had anything to say: he replied, nothing more than he had already declared, that in this business he died innocently. He mentioned, that he had been indisposed since the day before, and entreated the multitude not to attribute his sickly countenance to the fear of death, for as he died innocent, he should also die brave. He politely waved his hand to the crowd, and said good day, gentlemen : Then stepping forward, he pulled the cap over his face saying, Col. Osborn, I’m ready, and was immediately launched into eternity.

*Caria,per*Harper, Chancellor.

It is argued against the conclusiveness of the Decree of 1790, that the order to apply the money, first to the payment of Charles Murray’s mortgage, and to deliver over the residue of the securities arising from the sale, to Gen. Greene, was made, not in the case of *Murray vs. Murray,*but in that of *Greene vs. Ferrie.*But it is to be recollected that Ferrie was made a party to the bill of Murray, and the fact of the conveyances to Pierce White and Call, to Cecil and to Ferrie, was expressly put in issue by the bill. An order was made in the case of *Murray vs. Murray,*that the land should be sold, and the proceeds remain subject to the order of the court. If there were only a life estate transferred to Ferrie, by the deed of Washington and wife, then Mrs. Washington would have been entitled to the surplus of the proceeds, after satisfying the mortgage ; deducting the value of her husband’s life estate. When therefore an order was made in the case of *Greene vs. Ferrie,*that the surplus should be paid to Gen. Greene, it follows unavoidably, that it must have been decided negatively in the case of *Murray vs. Murray,*that Mrs. Washington was not entitled to it. But it is plain that the cases were considered and decided together. This would not be questioned, if the titles of both cases stood at the head of the decree. But certainly it would not be less a decree in both cases, *188if it were plainly expressed in the body of the decree itself; and it seems to me that it is so plainly expressed. The only decree which appears for satisfying the mortgage of Murray, is that which is said to have been made in the case of *Greene vs. Ferrie.*The mortgage was not at all in question in that case, nor was Murray a party to it, and it follows inevitably, that the decree was intended to grant the relief, claimed by the bill of Murray.

Then, against the relief claimed for carrying into effect the decree of 1790, the lapse of time is pleaded as a bar. The first question which arises, is in respect to the right of the defendant, Daniel, to make that question. So far as respects his claim, in the right of Mrs. Washington, as being a purchaser from her heirs, it is plain that he has no interest in that question. She and all claiming under her are estopped by the decree. Whoever may be entitled to the land or its proceeds, she and those claiming under her are not. Whoever may have an interest in enforcing or resisting the decree, she and those claiming under her have none. Suppose the defendant to succeed in establishing the fact, by the presumption of law or otherwise, that the decree has been carried into effect, the money paid, and the conveyance executed, he only shews that the title to the land or the money is in others, and he has no claim or concern in the matter.

But it is urged in behalf of the defendant, Daniel; that, as the personal representative óf David Murray, he is the proper person to contest the claim of complainant, that the personal estate is first liable for the payment of debts, and though an executor is not a necessary party to a suit, for foreclosure of a mortgage, yet, in this country, where the mortgage is only regarded as>a security for the debt, he is a proper party, Though, in general, I think the executor might properly enough be made a party to a bill for enforcing a mortgage againt the heir, yet, if it were brought against the heir alone, and he did not raise the objection, certainly the court would not refuse to decree, on account of the want of parties. And if the heir thought proper to admit the claim, the executor would not be permitted to volunteer, for the purpose of defending him. Here no relief is claimed against the defendant as administrator; the *189bill only seeking relief against him as representing the heirs of Mrs. Washington. But though in general, the personal representative might be a proper party, I am ofopin- • ion that he would be neither a necessary or proper one in the present case. The land was sold subject to the mortgage, and the aleinee covenanted to pay it oil’. This was a covenant, running with the land. Could Ferrie have objected, in the suit against him, that the personal estate of David Murray was first liable for the debt, and that his personal representative ought therefore to be made a party'? As observed in the case of *Drayton vs.*Chandler, Rice’s Eq. Rep. 283: Is there any such privity between the heir and the executor, as to make the acts or admissions of one, evidence against the other'? If the heir should recognize or admit the liability of the land to satisfy the mortgage, after a lapse of more than twenty years, and when the debt, as against the executor, must be. presumed satisfied, would he not be bound by such admission! If Ferrie had answered in the present suit, and admitted the claim of complainant, could the personal representative have interposed to say — I have the right to defend you against it. And supposing him to be properly a party, his permitting the bill to be taken *pro*confesso, is equivalent to such admission.

It would be the duty of the court, of its own motion, in decreeing upon the rights of Ferrie, to inquire if he were properly made a party. As I understand it, publication was made in pursuance of the act of assembly, requiring John Ferrie, or, if he should be dead, his heirs, to appear. It was objected that from his long absence without being heard of, he must be presumed to be dead; and that his heirs should be required to appear by name. If it is as al-ledged, he has been absent from the state for fifty years, and his heirs are unknown, this would be impossible. It seems to me to be a substantial, and the only practicable mode of complying with the directions of the act. I do not perceive that the heirs would receive any greater benefit if they were named in the advertisement requiring them to answer.

But independently of the act of the Legislature, I am of opinion that this is a case in which, according to the Eng*190lish practice, the court would proceed to a decree without making him a party. As it is said, in .the case of *Bowden vs. Schatzell,*Ball. Eq. Rep. 365: “The English practice is stated by Lord Redesdale, in the case of *Smith vs. the Hibernian Mine*Company, 1 Scho. *&*Lef. 240, to he, when one party is out of the jurisdiction, and other parties within it, to charge the fact by the bill, that such person is out of the jurisdiction, and then the court proceeds against the parties, and if the disposition of the property is in the power of the other parties, the court may act upon it.” So it is said in Mitford’s PL 139 — 40, that the heir at law is a necessary party to a bill to carry into execution the trusts of a Will; but if he is out of the jurisdiction, the court will execute without him. And see *Me Cle-land vs. Shaw,*2 Scho. *&*Lef. 548. The court would more readily proceed in this way, because it is plain that the heirs of Ferrie have in reality, no substantial interest. The only parties having a real interest, seem to be the complainant, and the representative of Gen. Greene.

But suppose the defendant, Daniel, to have the right of shewing that the decree is satisfied, has he succeeded in doing so *%*In addition to the lapse of time, the circumstances relied on, are the Master’s report of sales, the confirmation of the report, the decree reciting that Ferrie had joined in the conveyance, and the account stated between the treasury of the United States and Gen. Greene, in which he is charged with the amount recovered against Ferrie. With respect to the report and its confirmation, I have no doubt of the truth of the position, contended for on the part of complainant, that a sale made by order of the court is only complete when the terms of sale are complied with, and the purchaser accepts a conveyance. This is not reported. Ferrie may have joined in the conveyance prepared by the master, and in his office, but which may never have been received by the purchasers, Tunno and Penman. As is said, in the case of *Messervey vs. Barelli,*2 Hill’s ch. 567, the confirmation of a master’s report of sales, or of having paid money, is not a judicial, but an administrative order. Its object is not to determine the truth of the fact reported, but to approve of it, •and to protect the master in what he has done; and if the *191fact be incorrectly reported, parties are not estopped to shew the truth. With respect to the account between the federal treasury and Gen. Greene, it concludes nothing. A judgment had been obtained against Ferrie, and the land had been bid off at a certain price. It was known how much was due on the mortgage of Murray, and the accounting officer might very well have charged Gen. Greene with the amount which he was entitled to receive, and which there seemed no reason to doubt he would receive. Gould he have been justified under the act of congress, in paying to Gen. Greene the full amount of the appropriation, when he had such a security for this sum *1*These circumstances are evidence, but they, as well the presumption arising from lapse of time, are liable to be rebutted.

I think the account contains evidence on the face of it, that Gen. Greene, had not then been paid. It first charges him with the amount of Tunno *&*Penman’s bid ; then interest is calculated on Murray’s mortgage up to the time of taking the account in 1793, and that amount is deducted from the former, to shew the share of the funds which Gen. Greene was entitled to receive — to shew how much Murray was entitled to take from the common fund.. If Gen. Greene had, before that time, received any gross amount of money or securities, it would have been of course, to charge him simply with such receipt. There would have needed no calculation to show the share of the fund to which each was entitled.

I think the admissions of Mr. Tunno, testified by his swearing to the bill, are proper evidence to rebut these presumptions. It is well settled, that the admissions of a person having complete knowledge, against his own interest, are evidence between third persons, and more especially when they are in writing, and the party making them is dead. Such was the case of entries made by a Steward, charging himself with monies received on account of trespasses on certain premises, which were received as evidence of his employer’s seisin of the land. The cases are very fully collected in *Barker*vs. *Ray,*2 Russ. 63, and the note 67; and the case itself is to the same effect; though a question is made, whether the declarations of a *192person, having complete knowledge, and indifferent in point of interest, might not also loe received. It is settled, that the declarations of tenants, as to the person under whom they hold, of an assignor of a devisee admitting himself a trustee, are admissible between third persons; and so the declaration of- a wife, that her husband was tenant for life, to rebut the effect of his possession.

Were these admissions against Mr. Tunno’s interest! He was, *prima facie,*liable to be compelled to comply with the terms of sale. If a bill had been filed by the representative of Gen. Greene, to compel him to complete his purchase, would not these admissions have been evidence to fix his liability, and to rebut the presumption arising from lapse of time. The argument of the defendant is, you shall be presumed to have paid your money and received a title ; but he says, I have not paid the money, and I have no title. Does he not disclaim an important interest, and subject himself to an onerous liability.

It is agreed on both sides, that if the possession be in fact vacant, it shall be adjudged in him who has the right. I am satisfied, upon the evidence, that the possession was in fact vacant from before the date of the decree, until Tunno took possession by his tenants, Rose and Rutledge, in 1823. Then if we suppose, that a conveyance was made to Tunno, he must be regarded as having been in possession all that' time, and that his title is doubly perfected. But though he admits that this is not true, the defendant would shew the contrary, that is to say, that he himself has no right either legal or equitable.

If Tunno was not authorized to purchase for the complainant’s intestate, complainant might maintain a bill against him to complete his purchase. His admissions would be evidence against him, and repel the presumption from lapse of time, while his statements with respect to his. excuse for not applying with the terms of sale, would be no evidence in his favor. The complainant chooses to admit by his bill, that he had a good excuse for not complying, and who has a right to call that admission in question.

If we suppose, as suggested, that the land remained in the possession of the Court, this would of itself, rebut *193the presumption arising from the lapse of time. The land would remain permanent evidence, that the decree of the Court had not been carried into execution.

But I am satisfied that the matter cannot be so regarded. Until changed by an actual conveyance, the title must remain as it was before. As I have said, I perceive no evidence of any possession, from before the date of the decree, till Tunno took possession in 1823, with the exception of a casual and interrupted possession on the part of Mrs. Omones, the daughter of Mrs. Washington. Then, I am satisfied that the lapse of time must be taken to bar the claim of defendant, and not that of the complainant, and this independently of the effect of the decree of 1790. I believe the conveyance of Washington and wife vested the fee in Ferrie, even though the right of inheritance were not renounced: but this not necessary to consider. The defendant admits the mortgage to David Murray, and that he claims under David Murray. Then the possession, as is agreed, is to be adjudged in him who has the right; but the right of possession for his term of two thousand years, was in Charles Murray ; and if this were a bill to redeem, by those claiming under Mrs. Washington, it is plain that their claim must be adjudged a stale one.

If the representative of Gen. Greene, had brought his bill against the representatives of Charles Murray, to enforce the decree by a sale of the land, the latter might have made a strong case, and probably have defended himself by the lapse of time. This advantage he has thought proper to waive ; but it would be singular if the only party entitled to defend himself by lapse of time, should lrimself be held barred by the lapse of time..

Claiming under David Murray, the defendant is estopp-ed to deny his seizin : all parties and privies are bound by an estoppel. An estoppel is reciprocal, and binds both parties. Co. Lit. 352, a. A person making a conveyance, who has no title at the time, but afterwards acquires one, is estopped to deny that he was seized at the time of the conveyance. So a party accepting a conveyance is estopped to deny his grantor’s title. If he afterwards buys in a better title, though he may claim to be reimbursed the money, which he has paid to complete the title, he cannot use it *194to defeat Ms contract with his first grantor. Such was the decision of this Court in the case of *Foster*vs. *Thompson,*decided at Columbia. Mr. Thompson had bid off the land at a certain price, and afterwards purchased in the title to a part of it at a lower price. He claimed an abatement of price, to the amount of his bid, for that portion of the land; but the Court held him entitled only to what he had actually paid to perfect the title. Such was the case of *Walden*vs. Crane, 14 Peters, 153. There, a party who had contracted to purchase was put into possession, and afterwards discovered that the grant was issued to his vendor’s ancestor after his death, and was therefore void. He took out a grant in his own name, and then brought a bill to rescind the first contract. He was not allowed to set up his own title. If is said by the Court, “ If a ven-dee buys up a better title than the vendor’s, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title..” It is said, the vendor and vendee stand in the relation of landlord and tenant. The party would have had a right to be refunded the fees he had paid to the officers for entering the land in his own name ; but as he had made use of his apparent title, by attempting to defeat his vendor’s title, he was not allowed even that. In *Crane*vs. *Morris,*6 Peters, 611, the plaintiff proved a title in Roger Morris and wife, and produced a release from Morris and wife, to the persons under whom he claimed, executed previously to 1779, reciting a lease. In 1779, Roger Morris was attainted by the Legislature of New-York, and the land in question was sold to the person under whom the defendant claimed. The plaintiff gave in evidence the defendant’s title, having given notice to produce it. It was held that the recital of the lease was evidence, even between third persons; but the defendant was in no sense a stranger to the title ; he claimed in privity of estate, from the State of New York, whose sole title was founded upon that of Morris and wife. Both parties claimed under Morris and wife, but the plaintiff by the prior title. It was said that the recital binds the parties, and those who. claim under them by matters subsequent. Here, was no surmise that the defendant might have a title paramount *195■Of adverse to that of Morris and wife; hut on .its being shown that he claimed under them, that which would have been conclusive against Morris and wife, was held to be conclusive against him.

Nor can a party set up length of possession under a different title, against the title under which he entered. In *Barr*vs. Gratz, 4 Wheat, 213, the party entered on a tract of 1000 acres of land, on a contract to purchase 750 acres, .part of it. The 750 acres were afterwards assigned to him by metes and bounds. He continued in possession of the residue, and purchased the title of a third person, who had been in possession long enough to mature a title. It was held that his continued possession ofthis part was the possession of his first grantor; that he was *quasi*a tenant of the first grantor, and could not set up possession under another title. The right acquired by the person from whom he purchased, was limited to his actual possession. It was said in this case, that when the possession is vacant, there is a constructive actual seisin, in him who has the right.

The present defendant has taken out a grant from the State to himself; but he could not set this up against his grantor, David Murray, or his heirs, nor against the representatives of Charles Murray, who claims under David Murray, by a title admitted to be paramount to his own. There was some suggestion of his having a title under the statute of limitations : but this he would not be permitted to set up, and he is properly made a party, that he may be restrained from setting up these titles, and that a clear title may be made when the land is sold. This is not, as •suggested, an action to try title in the Court of Chancery. Both parties concur in the title of David Murray, and claim under him, and upon equitable principles, the defendant cannot avail himself of any' title, subsequently acquired. If defendant claimed by a title paramount to that of complainant’s intestate; as that David Murray, or any one under whom David Murray claimed, had conveyed to him or any one under whom he claims, before the mortgage to Charles Murray ; he would have had a right to have this question tried at law. But he alleges no such title, and he was bound to allege it if any such existed. The complainant *196having a *right to*enforce the sale of the land, it will not do to let a cloud hang over the title, which might prejudice the sale, upon a surmise that he may possibly be able to shew such a title.

Though the defendant, Daniel, as we have decided, has no interest, and the bill could not be sustained against him alone, yet he is properly a party, that the title may be quieted. The tenant in possession of the land, is always a proper party to a bill for foreclosure. It is said to be proper to make subsequent incumbrancers parties. Defendant might properly be made a party as *terre tenant.*In scirefacias, against an heir, to shew cause why the land of his ancestor should not be extended, the *terre tenants*are proper parties. 2 Saund. 7, n. 4. The tenant may plead that the conveyor or debtor, conveyed to him before the judgment, or that he was not seized. In this case, defendant might have pleaded, if the fact were so, that David Murray conveyed to him before the1 mortgage; but claim-. ing under him, only by matter subsequent to the mortgage, could not plead that he was not seized. On a bill to carry into execution the trusts of a will, the heir at law, though he has no interest, yet being the person entitled to contest the will, is a necessary party in order to quiet the title. If there were a former will, giving the land to different persons, it is said these need not be made parties. Yet if they set up a claim under that will, they may be made parties. Mitf. PI. Here the defendant does set up and insists on his claim as a purchaser from the heirs of Mrs. Washington. It would be contrary to- equity, and injurious to the parties in interest, that a sale should be made before that claim is quieted.

It is hardly necessary to advert to the argument, that Mrs. Washington or her heirs, were the heirs of Charles Murray. If the mortgage was merged in the decree of 1790, only the personal representatives of Charles Murray have a right to enforce that decree. If it was not, (and I do not perceive how it could be, as the title to the term must remain in some one) then, upon the death of Charles Murray, the term of two thousand years went to his personal representative.

As to the plea of the purchaser, foryaluable consideration. *197without notice, I think the testimony of the witnesses, D'Lyon and Mallory, sufficient to establish actual notice. The certificate of D’Lyon of the 17th January, 1831, though not evidence, except to discredit D’Lyon, is not absolutely inconsistent with his testimony. He states, that on his application to Tunno, he replied by letter, that he had purchased on behalf of the heirs of Washington or Murray. It must of course have been, according to fact, in behalf of Charles Murray. He states Tunno to have added, “that he had no claim to it,” which must, of course, mean personal claim, “ and that he would not interfere with itthat is to say, as having such claim. I think the certificate too vague to weigh against the witness’s, evidence on oath, corroborated as he is by Mallory. The small consideration paid, is a strong circumstance to corroborate this evidence, and to shew that the parties had reason to apprehend that the title would be subject to litigation.

I am inciined to think too, that the testimony of Mr. Barnwell is sufficient to shew notice before the completion of the purchase. Supposing Dr. Daniel not to have been present at the sale, notice to his agent was notice to himself. 2 Fonb. 154. Besides, we have decided, *Donald*vs. *Mc*Cord, Rice Eq. 340, that “where no discovery is sought, which may jeopardize the title of the defendant, the plea of purchaser, for valuable consideration, without notice, will not avail against a plaintiff having the legal title.” The legal title to the term is in the complainant, or if we regard the title as in Ferrie, the complainant and the other defendant, the representative of Gen. Greene, are entitled to avail themselves of Ferrie’s rights. The meaning of the decision evidently is, that a party having purchased the legal title, without notice of an equity, shall be protected, but the defendant certainly has not the legal title.

The only remaining question to be considered, is that raised between the complainant and the defendant, the representatives of Gen. Greene; whether the former is entitled to interest beyond the penalty of his bond. I take it to be fully settled as the general rule of the Court, that interest will not be carried beyond the penalty of the bond. Such was the decision in *Stewart*vs. *Rumball,*2 Vern. *198509, in which it is said that a man can have no more than his debt, and the penalty is the utmost of the debt. Such was the decision in *Tew*vs. *Winterton,*3 Br. C. C. 489, in which a judgment had been entered upon the bond, in pursuance of a warrant of attorney, and Lord Thurlow refused interest beyond the penalty; and *Knight vs. McLean,*3 Br. C. C. 496, in which Mr. Justice Buller, sitting for the Chancellor, allowed interest beyond the penalty, but, upon re-hearing,, his decision was reversed by the Chancellor. The case of *Lord Lonsdale*vs. Church, 2 T. R. 388, I understand to have been overruled by late decisions of the Law Courts. But I do not understand this point to be questioned,

Then I am satisfied that the rule is as laid down, Fon-blanque, 2 vol. p. 430, that “ whenever the debt is carried beyond the penalty, it is always for a defendant, upon the maxim, that he who would have equity must do it; as where the party has been delayed by the injunction of this Court, or the like. But never for a plaintiff, any further than he could charge him at law; because he has chosen his own security, and must therefore abide by it.” There is a note to the same effect by the Editor, to the case of the Mayor of *Galway*vs. Russell, 4 Br. Par. Ca. 523. Such is evidently the principle of the case quoted from 2 Eq. Ca. Ab. 611; that although Equity cannot carry, interest beyond the penalty, yet it will not suffer the mortgagor to redeem without paying all that is due. Similar in principle is the case of *Godfrey*vs. *Watson,*3 Atk. 517. Where a creditor by statute is in possession of the land, the debtor can, at law, only compel him to account for the extended value of the profits, which are always below the true profits. In Equity the debtor may have an account of the true profits; but then he must consent to pay interest, though it exceeds the penalty. The principle is expressed, though there was no question of carrying interest beyond the penalty in that case, in *Crueze*vs. *Hunter, 2*Ves. Jun. 157. The estate of the mortgagor is forfeited at law, and can only be reclaimed by the aid of this Court; which, in its well known principle, will only relieve upon his paying all that is justly due.

The case of *Clarke*vs. *Lord Abingdon,*17 Ves. 106, is *199supposed to be one to shew, that in every case of a mortgage, interest may be carried beyond the penalty; whoever may be the plaintiff. But this is a misconception. In that case, the mortgage was not intended to secure the bond, nor did it mention or refer to the penalty. There was a deed of trust to sell and raise certain sums to be paid to Bertie; then a memorandum was executed by Bertie, declaring that those sums should be vested in the trustees, in trust, to payoff certain sums of money' — stating the sums actually due by Lord Abingdon, on the condition of his bonds. If is in reference to this, that the master of the Rolls says, the penalty is not mentioned or alluded to in the bond. He says, “ If a creditor by mortgage, after-wards took a bond, it is admitted, he might recover interest beyond the penalty on the mortgage.” If a debt were secured by a mortgage alone, that would be merely a liquidated debt, and, like every other liquidated debt, must carry interest until it is paid. And the taking of a penal bond afterwards, could not affect the right to recover such interest.

But in the language of the cases, the penalty is the entire debt, and the mortgage is only intended to secure that, and refers to the bond; on what principle would you give more than the debt. Here the mortgage does expressly refer to the bond, and states the penalty.

I am inclined to think too, that, on the ground of laches, the complainant should not be allowed to recover beyond the penalty. He was first to be satisfied, and was more peculiarly the actor. There would be a great hardship on this defendant, in taking a different view. He was charged by the United States, upwards of £2000, on account of this recovery, and now, if the complainant were' allowed interest to the present time, his demand would more than exhaust the whole fund intended to secure both.

It is ordered and decreed that the plantation, Nelville, mentioned in the pleadings, be sold by the master of this Court, on the following terms: that is to say, one third cash, and the residue in one and two years, with mortgage of the property and personal security, and that the defendant, Daniel, yield the possession, and account for the rents and profits received by him, since the filing of this bill; *200and that the complainant he paid the sum of two thousand pounds sterling, with the premium of exchange on London, in satisfaction of his mortgage, and also his costs in this Court; and that the residue of the fund be paid to the defendant, Nightingale; and that the defendant, Daniel, pay the costs of this bill. And it is further ordered, that the master may settle the time of sale, and that, with the concurrence of complainant, he may modify the terms, so as to bring the property to sale with the greatest advantage to the parties concerned in interest.

WM. HARPER.

I concur.

David Johnson. Cii. Dunkin, also concurred.

Note. Messrs. Hunt and Attorney General Bailey, wore concerned in this case, and argued it in the Appeal Court; and the Reporter regrets that their arguments, have not been furnished, so as to appear with those of Messrs. Petigru and Legare.