#### *Ex'rs of Thomas G. Lamar vs. Oliver Simpson and others.*

Conveyance of land in fee to one of the Solicitors of the State by name, to himself, “his heirs and assigns, for the State of South Carolina.” *Held,*to vest the legal title in the State.

Where the State, being the legal owner of lands, authorized one of the Solicitors to convey them to H. S. or his appointee, and the Solicitor executed printed blank deeds, and delivered them to H. S. who afterwards filled them up and delivered them to a *purchaser*— Held, that the conveyances were good.

One having a beneficiary interest in lands, mortgaged them, and after-wards acquired the legal title. In the mean time judgments had been obtained against him. Held, that the mortgages were entitled to be first paid, (a.)

*Before*JohNstoN, Ch. *at*Edgefield, June, 1843.

The principal object of this bill was to subject certain real property in the town of Hambugh to the lien of a judgment recovered by the plaintiffs against Henry Shultz, in April 1839. The bill alleged that the only property from which the creditors of Shultz could hope to obtain satisfaction of their demands, was his interest in the Fair tract of land, on which Hamburg is principally built. That in pursuance of a decree of the Court of Equity against Shultz, the said Fair tract of land was sold in August, 1830, and at that sale B. J. Earle, the Solicitor of the western circuit, being authorized by Resolution of the Legislature, became the purchaser, for the State, of a part of the said tract, containing about 180 acres, and took a conveyance for the same to himself, “his heirs and assigns, for the State of South Carolina.” That the said B. J. Earle sold a part of the land so purchased by him, and. paid the proceeds into the treasury of the State, and his actings in the premises were approved by Resolutions of the Legislature, passed in 1830 (a) and in 1831. (b) That in pursuance of a report and certain Resolutions, adopted in 1838, and more particularly of the 13th sec. of an Act passed in the same year, (c) the said B. J. Earle, in December 1838, conveyed to Shultz, in fee simple, all the land included in the aforesaid conveyance to himself, excepting only the lots previously sold by him. That the Legislature, by the 17th sec. of *72an Act passed in 1832, (d) authorized F. H. Ward law and N. L. Griffin to make titles for any such lots in Hamburg as Shultz should think proper to sell; and by an Act passed in 1833, (e) continued them as commissioners with the same powers and duties for the year 1834. That the said F. H. Ward-law and N. L. Griffin, in pursuance of the authority vested in them by the said Acts, on the 24th January 1834, conveyed 55 lots in Hamburg, to Amory Sibley, at the request of Shultz, and to secure Sibley for certain advancements of money made by him to Shultz; and that the larger portion of the 55 lots were reconveyed by Sibley to Shultz in 1838. That the Legislature, by the 16th sec. of an Act passed in 1832, (f) enacted, “that the Solicitor of the western circuit be, and he is hereby, instructed, *&c.*to convey to Henry Shultz, or to such person as he shall direct, for his own use and benefit, all the right and title which the State has in and to the town of Hamburg.” That at the date of the passage of the said Act, Waddy Thompson, Jr. was Solicitor of the Western circuit, and continued to exercise the powers and duties thereof until December, 1835, when he resigned the office. That the mode pursued by the said Waddy Thompson, Jr. in the execution of his authority under the said Act was, that in the year 1835 he signed and sealed, in the presence of two witnesses, many printed copies of the formal parts of a release, but containing- no statement or description of the date, the consideration, the grantee, or the parcels of land conveyed, and placed these blanks in the hands of Shultz, to be used at his discretion, in the subsequent sales of lots in the town of Hamburgh, but without any specific instructions to Shultz as to what parcels of lands should be conveyed, or to whom the deeds should be delivered, for in fact the contracts for sale, &c. of the lots had not then been made.

That Shultz, having thus received these deeds in blank, in the first place procured the whole of them to be dated, using principally the dates July 22, 1835, and August 3, 1835, and next, while they were yet in blank procured one of the subscribing witnesses to-go before some magistrate and make affidavit that he had seen the grantor sign and seal the deed, omitting all notice of delivery. That sometime afterwards, the said Waddy Thompson, finding or suspecting that Shultz had abused or was likely to abuse the confidence he had placed in him concerning *73these deeds, endeavored to regain the possession of all those deeds in blank having his signature and seal, and did in fact regain many of them, and with an assurance from Shultz that all had been surrendered, but the said Henry Shultz surrep-tiously kept some of them, to be used as the emergencies of his affairs might require.

That about November 4, 1835, Shultz and Simpson procured two of the said blank deeds, which bore date the 22d July 1835, to be filled up as conveyances for two lots in Hamburg, (Nos. 55 and 156,) to Simpson, and on the same day procured a third deed, which bore date the 3d August 1835, to be filled up as a conveyance in fee to Simpson, for the expressed consideration of four thousand dollars, of a parcel of land in upper Hamburg, known as the Hill. That on the ■ said last mentioned deed there was an indorsement, by Simpson, acknowledging the deed to be a mortgage to secure to .Simpson the repayment of four thousand dollars. That about the 12th July, 1837, Shultz and Simpson filled up another of said deeds, which bore the date of July 22d 1835, as a conveyance in fee to Simpson, for eléven of the lots which had been previously conveyed by Wardlaw and Griffin to Sibley, and which were afterwards, in 1838, reconveyed by him to Shultz. On this last deed there was also an indorsement by Simpson, acknowledging the deed to be a mortgage to secure to him the payment of $6,750. The four deeds were recorded. The bill stated circumstances tending to show actual fraud in the transactions between Shultz and Simpson, which it is deemed unnecessary to state, and charged that the. said conveyances to Simpson were voluntary and fraudulent, as against the creditors of Shultz. The bill further alleged that in 1839 the said mortgages were foreclosed in Equity, and that at the sales made by the commissioner in December, 1841 and January 1842, Simpson became the purchaser of the property'.

The answer of Simpson admitted all the material allegations above stated, but denied all allegations and charges of fraud, and alleged that the conveyances to himself were made in good faith, and for full and valuable' considerations passing between himself and Shultz.

Shultz in his answer admitted that the conveyances for lots Nos. 55 and 166 were *bona fide]*as to the other deeds, he admitted some of the facts charged which went to show fraud, and stated that they were voluntary, and that there was an under*74standing between himself and Simpson that some of the property was to be held by Simpson in trust for some natural children of Shultz. The answer stated the facts, but it is deemed unnecessary to detail them.

At the trial Shultz was offered as a witness and testified that the facts stated in his answer were true. This testimony was objected to by Simpson.

*By the*Chancellor•. My judgment shall be brief, and confined to what I deem essential to the merits of the case.

If the legal title were in Judge Earle up to the time of his conveyance, as contended by the plaintiffs, it does not appear to me that they must therefore succeed in their application here. If his conveyance gave a good title to their debtor, subject to their executions, they have an ample remedy in their own hands.

But my clear impression is that the title was not in Judge Earle, under the deed executed to him,* but that the use was executed in the State.

Grant, however, that the title was in him, and that the interest of the State were merely equitable, I see no reason why the conveyances made by Mr. Thompson were not sufficient to transfer them — to such extent, at least, as to entitle his grantee to hold under an equity equal to the plaintiffs, and of which this court wo.uld not, therefore, interfere to deprive him. I say this, upon the supposition that his conveyances were made upon a fair consideration. Upon which point, I shall presently remark.

If Mr. Thompson was authorized to convey — if he conveyed regularly to a person named by Shultz — if Shultz confirmed and approved the conveyance, and it was upon a *bona fide*consideration passing to him, I do not see why the transaction should be disturbed. I do not perceive why the title subsequently coming to Shultz, should not now accrue to the benefit of the person to whom the conveyances were made, so as to entitle him to have any imperfection cured, if necessary. But especially I do not see upon what principle this court should interfere to dispossess him. If the plaintiffs have a legal right, let them assert it elsewhere — but if they come here under an equity, they are met by an equal equity, in the case I have supposed.

Then, there is no doubt of Mr. Thompson’s authority. The only question is whether he strictly complied with it. My own impression is that, he did — that he might convey in parcels, and by separate deeds, as well as by one conveyance for the whole. *75But I have considered this the less, because I think that it lies only with his principal, the State, and not with strangers and third persons, to draw in question any irregularity in the execution of his power.

That, the conveyances w'ere made by the authority and direction of Shultz, is unquestionable. His answer and his testimony establish that, if it did not sufficiently appear by his indorse-ments on the deeds.

Were the conveyances fair and upon proper consideration'? Mr. Shultz, the witness examined to establish the negative, proves that part of them were just and *bona fide.*He attacks others. But this must stand, upon Simpson’s answer, if his testimony is incompetent. It is unnecessary to decide whether the conflicting proof, consisting of circumstances, very forcibly remarked on at the hearing, and particularly the answer of Shultz to Simpson’s bill of foreclosure, is sufficient to outweigh the evidence; and I am happy that it is so. I have reflected upon the objections under which Mr. Shultz was heard, and I am satisfied that he is an incompetent witness in the cause. If he stood clear of interest, or indifferent between the parties, he would be competent, although a party defendant in the suit. But he does not. It was plausibly urged that he was indifferent — for that, although his testimony operated to subject the property in controversy to his creditors, the plaintiffs — yet in depriving Simpson of it he subjected himself to an equal liability. And such was my impression at the hearing. I think this was a mistaken view. The liens of the plaintiffs are general — that of Simpson specific. The latter has no general lien. So that if he were dispossessed of his specific lien he would be stripped of property in his possession, and left without any existing remedy. It would appear, therefore, that the witness must be interested in transferring that property to the satisfaction of his general lien creditors, under circumstances of such impunity on the other side.

It is ordered that the bill be dismissed.

The complainants appealed.

*Wardlaw,*for the appellants.

*Bauskett and Carroll,*contra.

(a)

 Res. of 1830, p. 36.

(b)

 Res. of 1831, p. 30.

(c)

6 Stat. 612.

(d)

6 Stat. 477.

(e)

6 Stat. 504.

(f)

6 Stat. 477.

*Curia, per*Johnston, Ch.

We are unanimously of opinion that the decree must stand. I am myself satisfied, (though there is some difference of opinion among us on this point) that, *76in holding Shultz to be an incompetent witness, I was mistaken, and that my first impressions on this subject were correct. In supposing that Simpson was possessed of a special lien only, and not of a general lien also, I had reference to the mortgages, but overlooked the decree for the amount secured, which was founded on them. I am satisfied now that Shultz could be no gainer by his evidence. For although it might have the effect of setting aside the mortgages as between Simpson and his execution creditors, and exposing the mortgaged- property to sale, for the payment of his debts generally, and of giving the execution creditors the preference, to be satisfied out of the avails; yet when they are all satisfied, Simpson’s decree, which must stand as between himself and Shultz, would be entitled to be paid out of the balance. And this is not all. If, contrary to all expectation, there should still remain any balance of the avails, Simpson, and not Shultz, would be entitled to that also. For we must not forget that, as between these two, not only are the mortgages, and the decree of foreclosure, good and conclusive, but the sale made under them, and the purchase of the premises by Simpson at that sale, are also unimpeachable by Shultz, and constitute Simpson the owner of the premises. So that, as owner, he could lay claim to the whole balance of the proceeds of the resale.

But allowing Shultz to be a competent witness, it is the unanimous opinion of this court, that his testimony is not sufficient to entitle the plaintiffs to a decree. This opinion is founded upon the technical rule, which sustains an answer not opposed by more than one witness. In opposition to Simpson’s answer there is only this one witness. It is true, that under the same rule, if circumstances conspire with the witness the answer cannot stand. But here, to say the most, the circumstances are on both sides, with a very strong preponderance in favor of the answer. So that allowing Shultz to be not only competent but credible, his evidence, for want of corroboration, fails to outweigh the answer of Simpson.

The *bona Jides*of the deeds to Simpson being thus established, it remains to consider the sufficiency of the instruments themselves.

There is no pretence for the position that the title to the premises was ever in Mr. Solicitor Earle. The deed to him recites that he bought *for the*State, and the conveyance is to him *for**77*the State.*Here is an absence of all those circumstances, such as something to be done by the trustee, and the like, which have been held to detain the title in the trustee, and our own decision of *Ramsay vs.*Marsh, 2 McC. 252, is sufficient to shew that the use was executed in the State.

The title was, therefore, in the State, from the date of the deed to Mr. Earle. It is fair to concede that the conveyance of Ward-law and Griffin, under their authority of 1832, transfered it to Sibley, as to so much of Hamburg as was covered by the deed, and that it never returned to Shultz until Sibley conveyed to him in 1838.

.In the mean time Thompson conveyed to Simpson under the order of Shultz.

The question is upon the sufficiency of this latter conveyance, as against the judgment creditors of Shultz.

Is there any doubt that when the Legislature authorized Mr. Thompson to convey to Shultz, or to his appointee, upon the 16,000 dollars being paid into the treasury, it in effect created in and transfered to Shultz, the entire beneficiary interest in the premises to be conveyed ? Can there be any doubt of that; or that Thompson was made a mere ministerial agent to follow his directions ? The discretion was with Shultz and not with Thompson. Under these circumstances, Thompson, at his request, subscribed the deeds in blank and delivered them to him. These skeleton deeds were so printed as to recite the authority of the agent, and to confine the property to be transfered within the power, 4 McC. 239 ; 2 Hill Ch. 6 ; and no property could have been inserted in the blanks, so as to pass under the authority created, but property in the town of Hamburg.. The deeds, being in jShultz’s possession, could never be filed up, or pass from him, without his consent and direction. He did pass them to Simpson, filled up by his direction, and indorsed with a *bona fide*contract in relation to them, subscribed by himself and securing an interest to himself in the premises, to wit: the right of redemption.

Shall words be multiplied or cases quoted to prove that in this transaction Shultz was really the principal and Thompson his agent *1*or that, for any supposed irregularity, none but the principal could complain? or that he, being bound by a *Iona fide*contract, should not' be allowed to do so ?

It is true that as to a portion of the property covered by Thomp*78son’s deeds, the title, being in Sibley at the time, did not pass. ' But it passed as far as Shultz could pass it, and when he subsequently acquired it from Sibley, that acquisition enured to the benefit of his prior grantee.

(a) For the maxim, *the interest, when it accrues, feeds the estoppel,*and an application of it, vide *Doe vs. Oliver, 5*M. and R. 202; S. C. 2 Smith’s Lead. Ca. 417. '

It may be granted., (taking a different view,) that the 'conveyances to Simpson, indorsed in the nature of mortgages, passed only the equitable interests which Shultz held in the premises. What then ? Was not this a specific lien, or contract, which, according to the principle of *Finch vs.*Winchelsea, 1 P. Wms. 282, and of our own case of *Massey vs. McIlwain,*2 Hill Ch. 482, would be enforced, even as against general liens binding the land, when the title was subsequéntly acquired by Shultz from Sibley? No doubt of it, and there are cases enough to shew that, if Shultz had simply deposited these deeds by way of pledge for the money advanced on them, that would have created an equity in Simpson which must be satisfied in preference to general creditors, whose liens came in afterwards against the land when conveyed to him by Sibley.

It is ordered that the decree be affirmed.

The whole court concurred.