#### *Rosa D. Shultz vs. M. E. Carter et al.*

1. A testator devised and bequeathed to his “three children,” a daughter and two sons, “all the rest and residue of his estate, both real and personal, to share and share alike, to them and their heirs forever.” The daughter having married after the testator’s death, united with her husband in a bill for a partition of the estate; and in confirming the return of the commissioner, the court ordered that the executor retain possession of the property until the remaining debts should be ascertained, and secured to the satisfaction of the creditors. Shortly thereafter the executor delivered to the husband the negroes which had been allotted to him, taking from him a written acknow-ledgement that he held them subject to one-third of the debts of the estate, in such manner as the Commissioner in Equity and the creditors might prescribe.

2. The court held that the marital rights of the husband attached when he received possession of the slaves, subject to the payment of his proportion of the debts.

3. The creditors of the estate might have demanded satisfaction under their original equity, or the decree of the court, or the specific agreement between the husband and the executor, not on the ground that his marital right had not attached, but that it was subordinate to their rights.

4. The husband of complainant had mortgaged a tract of land on the 11th October, 1837, to two persons, to secure the payment of two bonds, one to each, of the same date. One of the obligees assigned his bond and interest in the mortgage on the 21st February, 1839. Mortgage recorded in the Registry of Mesne Conveyance, for Charleston, the land being in Col-leton district. The executrix, heirs and devisees of the mortgagor, by a decree of the 29th Jan. 1841, had been debarred and foreclosed of and from all equity of redemption in the premises after the 4th February, 1841; and on the 13th of November, 1841, one of the defendants in this case obtained an execution against the executrix, under which the land was sold by the sheriff of Colleton, on the 2d January, 1843. He purchased the land, received the sheriff’s deed, and claimed to be protected in his purchase, on the ground that he was a purchaser for valuable consideration, without notice of the mortgage, which was not recorded in the proper office; the mortgagees being his co-defendants.

5. The plea of purchase for valuable consideration, would not, as such, afford any defence to the legal title of the mortgagees. *Vide Donald*vs. *Me Cord,*Rice’s Eq. 340; *Cruger*vs. *Daniel,*McMullan’s Eq. 197. And as the answer contained no averment that the defendant ever parted with his money in any way, being both purchaser and plaintiff in the execution, it must he inferred, that the knowledge of the legal title of the mortgagees reached him in time to prevent injury.

*5346. A surety of complainant’s testator, on two joint and several bonds, secured by the mortgage of a tract of land, both bonds being due and unpaid at testator’s death, had, since his decease, been compelled, by judicial process, to satisfy one of the bonds, and was sued on the other. *Held*that the surety was entitled to rank as a bond creditor, in the application of the assets, and to have the benefit of the mortgage. *Vide Liddledale*vs. Robinson, 2 Brock 160; 12 Wheat. 594; *Pride vs.*Boyce, Rice’s Eq. 275.

The object of this bill will be fully understood from the Commissioner’s report, to whom the bill and answers were referred, to state an account, (fee. of what might be due to the creditors of complainant’s testator, her late husband.

*Commissioner’s Report.*

The bill and answers in this case were referred to me, to take and state an account of what may be due to the creditors of the late Wade H. Shultz, whether by judgment, mortgage, bond, or otherwise, with the further direction, to take an account of the personal estate of the said Wade Hampton Shultz, which has cometo the hands of the complainant, as executrix, or to the hands of any other person, by her order, or for her use, and to state an account of the value of the real estate whereof the testator died seized, and of the amount of the incumbrances thereof, and to report upon the dower which the complainant, as the widow of the testator, is entitled to. I have been attended by the solicitors of the several parties, and have granted an order to amend the bill, in so far as to enable Mrs. Shultz to raise, and have determined, the preliminary question, whether the negroes to which she was entitled under the will of her father, John Boyle, were legally in the possession of her husband, Shultz. So as to constitute a reduction upon this point, I submit the testimony of Josiah Taylor, executor of John Boyle, and a transcript of the proceedings of this court, in the years 1834 and 1835, in the matters of the partition of his estate.

A second question is raised on behalf of John R. Stull, who purchased the plantation of Shultz, called the “Oak Forest Tract,” and the “Marion Tract,” at sheriff’s sale, in Colleton district, 2d January, 1843, under an execution *535in the ease of the said *John R. Stull vs. Rosa D.*Shultz, executrix, dated 13th November, 1841.

It is proved, that the tract called “Oak Forest,” was mortgaged 13th April, 1836, to the Protestant Episcopal Society for the advancement of Christianity in South Carolina, to secure a bond of the same date, in the condition to pay $2,422 50, with interest; mortgage recorded in Col-leton district, 6th June, 1836. The same bond is further secured by a mortgage of twenty-two slaves, bearing same date, recorded in Secretary of State’s office, Charleston, 31st May, 1836. A part of this bond has been paid by the executrix, from the proceeds of sales of negroes sold. It is further proved, that the other tract, called “Marion,” was mortgaged to John S. Brisbane and Elizabeth Brisbane, 11th October, 1837, to secure a bond to Elizabeth Brisbane, of the same date, with condition to pay $1200, with interest; and also a bond, of the same date, to John S. Brisbane, with condition to pay $800, with interest. John S. Brisbane assigned his bond, and his right in the mortgage, to William Carter, 21st February, 1839. This mortgage is of record in the Registry of Mesne Conveyance for Charleston, the land being in Colleton. A decree to foreclose this last mentioned mortgage, and for sale of the premises, was obtained January term, 1841. One or more attempts were made by me to execute the decree, but without effect, for want of purchasers, no bid being made.

A third question arises from a claim put in by Mr. Ma-grath, in behalf of John Boyle, who was surety of Shultz’s bond to Elizabeth Brisbane, above mentioned. A judgment was obtained in Colleton, against John Boyle, on this bond, which he paid, to the amount of $1514, and he now claims this amount as a bond creditor. I have now to ask the judgment of the court on these three points, previous to any attempt at stating the account.

Respectfully submitted.

By the schedule of debts against the late Wade H. Shultz, stated in the exhibits, it is manifest that his estate is insolvent, as to simple contracts.

On the question, whether the marital rights of Wade II. *536Shultz had attached upon the negroes of his wife, Rosa D. Boyle, the following facts were in evidence:

On 16th January, 1834, Wade H. Shultz, and Fosa, his wife, filed a bill for partition of the real and personal estate of John Boyle, her deceased father, against Josiah Taylor and others, executors of John Boyle, and John Boyle, the younger, and L. Chalmers Boyle, minors. A writ of partition was accordingly issued, and the commissioners returned that they had divided the negroes into three lots, when lot No. 3, containing twenty-one negroes, was drawn by Wade H. Shultz,

This return was confirmed 25th January, 1834.

In the order confirming the return, the court said, “As to the division of the personalty, it is ordered, that the same be confirmed, subject to the following condition: The executor, Josiah Taylor, who sold the crops, and conducted the monied concerns of the estate, shall retain the possession of said property, as executor, until the accounts of the estate are fully adjusted by the commissioner, and the debts remaining shall have been secured by the respective distributees, under the direction of the commissioner, to the satisfaction of the creditors; after which, he shall deliver the respective portions to such of the parties as shall then be of full age. And the commissioner will report all his proceedings to the court at the next term.”

At May term, 1835, the commissioner reported to the court, that under the decretal order of January term, 1834, the debts of the estate of John Boyle, deceased, had been provided for, except the following :

Balance due Josiah Taylor, <$ 98 93

Thomas H. Boone, 54 79

J. W. Toomer, 100 00

Estate of William Washington, 34 50

William Vaughan, 300 00

588 22

A bond to Joshua W. Toomer, conditioned for 2000 00

A bond to Jno. Porter, ass’d. to J. W. Toomer, for 1000 00

$ 3588 22

*537The commissioner further reported, that John Boyle, the younger, had executed his bond to Joshua W. Toomer, conditioned for $1000, and Wade H. Shultz executed his bond to Joshua W. Toomer, conditioned for $1000; bqMi bonds secured by mortgages of their respective shares'of the estate allotted to them, which bonds were accepted by Mr. Toomer, in lieu of the bond of the testator. That with respect to the remaining bond due J. W. Toomer, as-signee of John Potter, for $1000, asL. Chalmers Boyle is a minor, it would be proper to have a different arrangement, and the commissioner submitted, that the executor be authorized to pay it out of the residue of the estate, and that he be authorized to sell the carpenter fellow, if a full price could be obtained, or if not, any other negroes, so that the debt may be settled in January next, or from the sales of the land, should a sale be effected before that time. The commissioner, in his report, further stated, with regard to the debt due to Mr. Vaughn, that this debt, with the other debts before referred to, ought to be provided from the sales of the land, before the rest of the estate is delivered over to the several parties.

The commissioner also reported an adjustment of the accounts between the several children of testator.

This report was confirmed by the court, and it was “ordered, that the respective debts be paid as therein directed.” It was further ordered, “that the land be sold as early as expedient, and the proceeds applied to the payment of the debts, should the said debts be not otherwise paid by the distributees out of their respective estates.”

It was conceded, that the land of the deceased, John Boyle, although put up at auction, has not been sold, far want of bidders.

Mr. Josiah Taylor, in his evidence before the master, in the present cause, taken on 21st June, 1843, said that he was the acting executor of John Boyle, deceased, and proved a receipt from Wade H. Shultz, in the following words:

“ *Charleston, January 29th,*1834.

“Received of Josiah Taylor, Esq., one of the executors of the will of John Boyle, as the share of the negroes of that estate, allotted to my wife, Rosa Sarah, one of the child*538ren of the said John Boyle, the following slaves, twenty-one in number.

“These slaves are delivered to me by Mr. Taylor, subject to the debts of the aforesaid estate, to be secured according to *the*direction *of the*commissioner in equity, in conformity with the wishes of the creditors, as soon as the debts are ascertained, according to the decree in equity, and my wife’s portion affixed. I therefore agree to hold them subject to said debts, and be subjected in such manner as the said commissioner and creditors may prescribe.

(Signed) WADE H. SHULTZ.” [l. s.]

Mr. Josiah Taylor further testified, that there are still debts due by the estate of John Boyle, viz:

To J. W. Toomer, $ 100 00

To Josiah Taylor, 98 00

To T. W. Boone, 54 79

To estate William Washington, 34 50

$287 29

That he knew nothing of a debt to estate of Vaughn, except that he recollects paying on account of the debt, $590. What the balance was, he did not know. Thinks that Charles Boyle, who was executor of Vaughn, told him he would never require more. C. Boyle would not take more at that time. He said it was of no consequence.

Mr. Taylor further testified, that certain accounts were presented to witness, as executor of *John*Boyle, after the estate was divided, amounting, together, to $56 75.

That he found the following among his papers :

*Estate of John*Boyle, *to estate of John B.*Vaughn, *Dr.*

1827, To four years hire negroes, at $400, $1600 00

1825, Paid J. and D. Paul, on account of Boone, $400 00

1828,

Jan. 31, Paid Charles Boyle, on account hire negroes, 590 00-990 00

$610 00

Estate of John Boyle, Dr. to Charles Boyle, executor of John B. Vaughn, four years hire of thirteen workers, and *539a carpenter, at four hundred dollars per year for the whole gang, twenty-one in number, which he was to find clothes and pay the taxes.

(Signed) CHARLES BOYLE.

Sworn to before me this 31st Dec. 1827. (Signed) S. Miles, a. u.

*Copy of the toill of John*Boyle, *deceased.*

State op South Carolina.

*In the name of*God, *amen!*I, John Boyle, of St. Paul’s parish, State aforesaid, sick in body, but of sound mind, thanks be given to God, do make and constitute this my last will and testament. *Imprimis.*I give and bequeath to my daughter, Rosa, my carriage. *Item.*I give and bequeath to my three children, Rosa, John, and L. Chalmers, all the rest and residue of my estate, both real and personal, to share and share alike, to them and their heirs forever, retaining to the use of my daughter Rosa, as a home during her single state of life, this residence, at which I at present live, called Mount Pleasant. *Item.*I nominate and appoint Mr. Josiah Taylor, of Charleston, factor; Mr. Joseph Hall Waring, of St. George’s, Dorchester, planter, and my son, John, when at the age of twenty-one years, my executors to this my last will and testament. *Item.*Not wishing my estate sold, at any rate before my children are of age, I will and appoint Mr. Joseph Hall Waring, of St. George’s, the manager of my estate, till my son becomes of the age of twenty-one, he to be suitably remunerated for such services. Should he decline serving, either as executor or manager of my estate, I will and appoint Mr. Thomas W. Boone, of St. Paul’s parish, in his stead, either as executor or manager, or as both.

(Signed) JOHN BOYLE, [l. s.]

We, the undersigned, hereby certify, that Mr. John Boyle, in *540sound mind, bequeaths to his daughter, Rosa Boyle, the servant girl, called Yanakay, the daughter of Maria.

(Signed) HUGH L. ALISON, M. D.

WM. B. TOWNSEND.

THOS. W. BOONE.

11 o’clock, 17th March, 1827.

Dunkin, Ch. The only questions now submitted to the consideration of the court, are presented by the master’s report. John Boyle, of St. Paul’s parish, the father of the complainant, died in 1827. By his will, he devised and bequeathed to his “three children, Rosa, John, and L. Chal-mers, all the rest and residue of his estate, both real and personal, to share and share alike, to them and their heirs forever.” Josiah Taylor and Joseph Hall Waring were appointed executors, and the former qualified and managed the estate. Some time after the testator’s death, the complainant intermarried with Wade H. Shultz.

The first question submitted by the report is, whether, Under the testimony adduced, the marital rights of Wade H. Shultz had attached on the property bequeathed to his wife by her father. It may be proper to premise that no partition, nor any other judicial proceeding, Was necessary, in order to perfect the husband’s right. It was only necessary that the executor should assent to the bequest. If the executor had placed all the negroes in the possession of John Boyle, the brother, to hold for himself and the other legatees, this would be deemed an assent to the legacy, and the marital rights of W. H. Shultz would attach, although the negroes may never have been divided, and he may never have been in actual possession of any part of the property bequeathed. *Verdier*vs. Verdier, McMullan’s Eq. 106. In 1834, Wade H. Shultz and the complainant united in a bill for a partition of the estate. In confirming the return of the commissioners, the court took care to protect the executor, as well as the creditors of the testator. By the order of the 25th January, 1834, the executor, Josiah Taylor, was to retain the possession of the property until the remaining debts should be ascertained and secured, to the satisfaction of the creditors. On the 29th January, 1834, the executor, Josiah Taylor, *541delivered into the possession of W. H. Shultz the negroes (twenty-one in number,) which had been allotted to him ; and W. H. Shultz gave him a written acknowledgement that he held the negroes subject to one third of the debts of the estate, in such manner as the commissioner in equ - ty and the creditors might prescribe. In January, 1835, the master reported the remaining debts to amount to $3,588, and that of these, W. H. Shultz had paid or satisfied $1000. A very full report was submitted by the master, in January, 1835, and another in May, 1835, providing the manner in which the residue of the debts should be paid, which reports were duly confirmed. It is not deemed necessary to comment particularly on these reports. It may be remarked, however, that the debts then unsatisfied, were then very inconsiderable, and that provision was made for the payment, by the sale of the real estate. It is not now certain that there are any subsisting claims against the estate. But in the view taken by the court, this is not very important. It seems to the court very clear, that when W. H. Shultz received possession of the negroes, on the 29th January, 1834, his marital right attached. Certainly he held them subject to the payment of his proportion of the debts, but his marital right was not the less complete. He did not, thenceforth, hold them in a fiduciary character, but only subject to a charge. The creditors of John Boyle might demand satisfaction under their original equity, or the decree of the court, or the specific agreement of the 29th January, not on the ground that his marital right had not attached, but that it w7as subordidate to their rights.

The next question arises out of the claim of John R. Stull. It is conceded that the Oak Forest tract was purchased with a knowledge of the mortgage to the Protestant Episcopal Society, and no objection, therefore, is interposed to a sale of the premises. Other questions may hereafter arise, which it is not proper now to anticipate. The court only desires to be understood as expressing no opinion as to any claim of this defendant on the Oak Forest tract, as derived from the purchase at sheriff’s sales. As to the Marion tract, it is difficult to discover what the defendant bought at the sheriff’s sales, on the 2d January, *5421843. By a'decree of this court, pronounced 29th January, 1841, the executrix, heirs, and devisees, oí W. H. Shultz, were, on and after “the 4th February, 1841, absolutely debarred and foreclosed of and from all equity of redemption in the said premises.” On the 13th November, 1841, J. R. Stull obtained an execution against the complainant, as executrix of W. H. Shultz, which was subsequently enforced, by exposing to sheriff’s sale this tract, together with the Oak Forest tract, and both were bid off by the defendant, for sixty-two dollars, the amount of his execution, including damages and costs, being seventy-six dollars eigty-two cents, and he received the sheriff’s deed. But the defendant insists that he is a purchaser, for valuable consideration, of the Marion tract, without notice of the mortgage to his co-defendants, Brisbane and Carter, which mortgage was not recorded in the proper office, and he relies on his protection as such purchaser. At law, the mortgagor being out of possession, it would only be necessary for the mortgagees, Carter and Brisbane, to evict the defendant, Stull, by an action of trespass. They do not now apply to this court for any aid. The plea of purchase, for valuable consideration, would not, as such, afford any defence to their legal title, and so it was held by this court in *Donald vs. Me*Cord, Rice’s Eq. 340, and again recognized in *Cruger vs.*Daniel, McMullan’s Eq. 197. But there are other objections to the defendant’s answer, as a plea. Mr. Sugden, 2 vol. 305, says, “the plea must distinctly aver, that the consideration money, mentioned in the deed, was *bona fide*and truly paid, independently of the recital of the purchase deed ; for if the money be not paid, the plea will be overruled, as the purchaser is entitled to relief against payment of it.” It is afterwards stated, that the plea must not only deny notice at the time of the purchase, but at the time of the payment of the purchase money. This answer contains no averment that the defendant ever parted with his money in any way. On the contrary, so far as the court can infer, being both purchaser and plaintiff in the execution, the knowledge of the legal title of the mortgagees has reached him in time to prevent injury.

The answer of John Boyle presents the remaining question. He was surety to *W.*H. Shultz, on two joint and *543several bonds. These bonds were also secured by a mortgage of the Marion plantation. Both bonds were due and unpaid at the death of W. H. Shultz, and constituted specialty debts against his estate. Since the death of W. H. Shultz, the defendant, Boyle, has been compelled, by judicial process, to satisfy the amount due on one of the bonds, and he is sued on the other. He insists that he is entitled to reimbursement as a bond creditor, and also to have the benefit of the Marion mortgage.

The principle involved in this inquiry, has been repeatedly discussed in the English courts, and in this country. The authorities may be found, collected by Chief Justice Marshall, in *Lidderdale vs. Robinson,*2 Brock. 160, which judgment was affirmed by the Supreme Court, in 12 Wheat. 594. The result of the cases is, that a surety who pays a debt of a superior dignity, due by the estate of his deceased principal, is suffered to rank, in the application of assets, according to the dignity of the debt satisfied; or, in other words, is substituted for the creditor who holds the prior debt, and is entitled to the benefit of any security which that creditor may have taken from the principal debtor. See, also, *Pride vs. Boyce,*Rice’s Eq. Rep. 275. These principles seem to the court to establish the rights of John Boyle.

It only remains to direct, that the report of the master be made up according to these views, and to provide for the sale of the Oak Forest plantation. It is ordered and decreed, that the plantation be sold by the master, on the first Monday in January next, or at such other time as the master, with the concurrence of the complainant and mortgagees, may fix, for one half cash, the balance on a credit of one and two years, secured by bond and mortgage of the premises; and that he hold the proceeds subject to the further order of this court.

The complainant appealed from the decree in this case, upon the grounds:

1. That under the case made in the bill and report, the negroes derived under the will of John Boyle, deceased, the father of the complainant, were not reduced into possession by Wade H. Shultz, so as to vest his marital rights in them.

*5442. That until all the debts of the late John Boyle were paid, the partition decreed in 1834, did not take effect; and by the terms of that decree, the executor was to retain possession of the property until the remaining debts should be ascertained, and secured to the satisfaction of the creditors ; and it was proved that some of the debts of the late John Boyle still remain due and unpaid.

The defendant, William Carter, appealed from the decree in this case, on the ground :

That in the administration of the assets of Wade H. Shultz, in the hands of the complainant, as executrix, John Boyle, the surety to the bond of Wade H. Shultz, deceased, who paid off the bond after the death of the principal, is entitled to rank only as a simple contract creditor, and not as a specialty creditor, as decreed by the Chancellor.

*JEckhard,*solicitor for complainant.

*II. W. DeSaussure,*for defendant, Carter.

Curia, *per*Johnson, Ch.

The court concur in the decree of the circuit court. Appeal dismissed.

Harper and Dunkin, Chancellors, concurred.

Johnston, Ch., absent from indisposition,