
    Jefferson L. Edmonds and Wife and others v. Anderson Crenshaw and James M’Morris, Executors of Aaron Cates, deceased. (Styled in the Judges’ decree J. L. Edmonds and Wife and others v. Pendleton Page.)
    1826.
    
      Columbia.
    
    Purchases by h^own^aíeí void ;^and the hands of from him61 with notice, implied. °r
    
      Us pendens only extends ty the sub-6'" ject of a suit, only, it is no-world. all,the
    Receivers appointed.
    This bill was filed against the defendants, Crenshaw an(^ M’Morris, as executors of Aaron Cates deceased, by Jefferson L. Edmonds, and Dorothy Ann his wife, Dorothy PVadlington, and the minors Polly Brooks Wadlington and Sarah Susannah Frances Wadlington, the legatees of the testator, for an account of the testator’s estate, and to displace the executors from their trust, on groun(l of Crenshaw’s absence from the state, having removed to Alabama, and the intemperance and insolvency of M’Morris, and that the funds should be over |0 a receiver, to be laid out in the purchase of lands and negroes. The will required the executors to sell the whole estate, real and personal, and to invest the proceeds in bank stock, for the benefit of the legatees, &c.
    The bill was filed on the 9th of January 1824, and M’Morris was served with a subpoena, to answer on the 19th of the same month. The bill charged, and it so appeared, that Crenshaw, before leaving the state, turned over the whole of the assets of the estate to his co-executor M’Morris.
    
    ■ At February term, 1824, an order was obtained, requiring M’Morris to deliver over the whole of the assets of the estate to the Commissioner Higgins, who had been appointed receiver; with this order he partially complied, by delivering over assets to an amount not exceeding one third of the assets of the whole estate.
    
      
      uYe exeat or-
    Commission “tissued*”
    On the 27th of April 1824 his Honour, Chancellor James, made a further order, “ that the said defendant M’Morris should surrender to the Commissioner all the moneys, bonds, notes, or other securities for debts, due the estate of Aaron Cates deceased, on or before the third Monday in May next ; and that upon his making default so to do, to the satisfaction of the Commissioner, that he give security for the forthcoming of said moneys and other securities, to the amount of the sale bill of the estate and interest thereon; and that upon his fail--ing to comply with this order, that an attachment issue against him.”
    This order not being complied with, on the 4th of May 1824 his Honour, Chancellor De Saussure, made the following order:
    “Upon reading the bill and affidavits presented in this case, it is ordered that a writ of ne exeat be ed against the defendant James M’Morris, to continue of force until he shall fully answer the plaintiff’s bill, and until this Court shall make some further order to the contrary. And the said writ is to be marked in the sum of $2,500. And it appearing further, that the said James M’Morris has failed to yield obedience to an order of this Court heretofore made in this cause, by which he was required to pay into the hands of the Commissioner of Newberry district, acting as receiver, all the funds of the estate of the said Aaron Cates, it is therefore ordered that a commission of sequestration do issue, directed to Francis B. Higgins, William Gillam, Frederic Foster, William Dunlap and James Garcy, to sequester the personal estate of the defendant James M’Morris, and the rents and profits of his real estate, until the said M’Morris shall answer the bill fully, pay over to the receiver the funds of the said estate in his hands, and until this Court shall make some other or further order to the contrary.”
    
      Personal es- and profits questered.
    Under this commission of sequestration the whole of M’Morris’s personal estate, and the rents and profits of his real estate, were sequestered, and immediately after a very imperfect answer.
    At June term, 1824, the cause came on for trial before Chancellor De Saussure, and then one Page moved (0 discharge the sequestration of a tract of one hundred of land and the negro Will, on the ground that they were bona fide alienated or mortgaged before the sequestration. This was opposed by the complainants, on the grounds that Page was no party to the suit, and that the transaction between him and M’Morris was fraudulent.
    There was another party to these proceedings — one Hatton. The executors, in pursuance of the directions of the will, sold the estate of the testator; and M’Morris, at the sale, bought for himself a negro man, named Young, for ‡344; and afterwards sold him to one Garcy, who, entertaining doubts of the legality of the transaction, sold him to the defendant Hatton, who is stated by the Chancellor to have had notice of the complainant’s claim. The complainants contended that this sale was void, and prayed to have it set aside, as an executor could not purchase at the sale of the testator’s estate.
    His Honour, however, decreed on that part of the case, as follows : “ On behalf of the defendant, James MMor-ris, another motion was made to discharge the levy made, under the sequestration, on the slaves Will and Young, and one tract of one hundred acres in Laurens district, which, it is alleged, were alienated or mortgaged, bona fide, before the sequestration. If this be so, there can be no doubt of the propriety of granting the discharge, subject, however, to the lien which Cates’s estate may have on one of the slaves, which, it is alleged, M’Morris purchased at the sale of the estate. The Commissioner is therefore directed to inquire and examine into these points, and report thereon .to the Court. I thought at the hearing, that as Mr Garcy and Page were not parties, no order could be made thereon. On consideration, I am inclined to the opinion, that such an order, being for their benefit, may be made.”
    The other parts of that decree are omitted, as not elucidating the question appealed from. It may, however, be remarked, that it removed the defendants from their trust, directed the appointment of a receiver, sanctioned the investment of the funds in lands and negroes, and established the complainants’ rights to have eventually a decree against the defendants for $31,473.45, with interest from the 11th of March 1824.
    Subsequently to the decree of June 1824, but before the final decree, M’Morris, by his written consent, authorized the Commissioner for Newberry district to sell the whole of his real and personal estate on a very liberal and extensive credit, and to apply the proceeds, so far as they would go, towards the payment of the anticipated decree. The complainants also consented to this arrangement, and M’Morris’s personal and real estate was accordingly sold, including a tract of one hundred acres of land, and a negro named Will, which were mortgaged to one Page. Sometime after the sale, to which Page had not objected, he delivered his mortgage or bill of sale of the negro Will to the sheriif of Newberry district, and authorized him to seize the said negro and sell him in satisfaction thereof.
    The complainants thereupon presented their petition to the Chancellor, praying that Page might be restrained from enforcing his mortgage in this summary way, until his mortgage should be established, and the account between him and M’Morris be ascertained, by the decree of this Court. Chancellor De Saussure, on the 29th of April 1825, made the following order:—
    On reading the within petition, it is ordered that the said Pendleton Page and the sheriff of Newberry district be restrained from enforcing the mortgage of the said Pendleton Page, by the sale of the negro Will, until ^ Commissioner shall have reported on the claim of the mortgagee Pendleton Page, according to the decree heretofore made in this cause, and until the further order of the Court.”
    In June 1825 the Commissioner took the testimony in relation to Page’s mortgage, and reported it to the Court as follows : “ On the 27th of April 1824 M’Morris was indebted to Page in the sum of $ 150.67f for the balance of a book account of that year, which was not payable, according to the usual custom of merchants in that part of the country, until the January following. On that day Page, with a full knowledge of M’Morris’s insolvency, and of the pendency of the complainants’ bill and the orders made thereon, sold to M’Morris’s daughters, who had a separate estate amply sufficient for their maintenance, goods to the amount of $ 155.56i, and charged the same to M ’Morris, making thereby the balance of his account $306.24. For this balance, on the 28th of April 1824, Page took M’Morris’s promissory, note payable on the 1st of January 1825, and a mortgage of 100 acres of land as above mentioned in Laurens district, to secure the payment, thereof. On the same day after the execution of the mortgage, M’Mo7ris stated to Page that he was without funds, and wished to sell Page a negro named Will. Page agreed to buy the negro for $400, which was to be advanced to M’Morris afterwards, at different times, to buy provisions for his family. M’Morris accordingly executed an absolute bill of sale of the negro to Page on that day. On the back of it Page executed a de-feasance stipulating that on the repayment of the consideration money, by the ,1st of January 1825, the sale was to be void. The negro was never delivered to Page, 
      and the possession of him remained in M’Morris. At the time of the execution of the bill of sale he gave M ’Morris five dollars; and long after the negro had been sequestered as M 'Morris's property, he paid to John Bonds fifty-eight dollars for bacon, which M’Morris had got of him, and which he had verbally promised to see paid. This was all he ever paid on account of the bill of sale of the negro Will. In order to shew that there was fraud in this transaction, it was proved that Page had said, that the articles which he had sold to M’Moiris’s daughters, amounting to $155.564, and a sum of $206.08 paid to one Matthews, formed a part of the consideration of the bill of sale for the negro Will; and upon examining Page’s account for the balance of which the note and the mortgage of land was given, both these items appear to form a part of that account, and were computed, and formed a part of Page’s claim against M’Morris, from which he Page deducted a note on Gar-cy, which M ’Morris paid him, and then struck the balance of $306.29, for which the note and mortgage of the land was given. It thus appeared (as it was contended) that these two items formed no part of the consideration of the bill of sale for the negro Will. The case was heard June term, 1825.
    June 1825.
    Thompson, Chancellor.
    These cases are so very loosely and irregularly presented to the view of the Court, that I should not undertake to decide upon them, were it not that they have incidentally, heretofore, come before this Court, and also the Court of Appeals, and have been partially recognized by them. Still I reluctantly take them into consideration, as they are unprecedentedly anomalous; nor would I do so, unless by the consent of the parties, and to save considerable expense.
    I shall in the first place consider the case of Hatton. 
      
      James M’Morris and Anderson Crenshaw were appoint-executors of Aaron Cates, by his last will, wherein he directed that the whole of his real and personal estate should be sold, &c. This, by the by, seems to have been the only clause with which the executors complied. At the sale, James M,Morris purchased the negro man Young, the subject of this controversy, and sold him to Doctor Garcy, who becoming dissatisfied, and entertaining doubts with respect to the validity of the title, sold him to Hatton for the same amount which he gave, to wit, $344. James M’Morris who purchased a considerable proportion of the property of Cates at the sale, and converted it to his own use, is notoriously unable to satisfy the claims of the complainants, and they have therefore instituted this inquiry for the purpose of recovering back the negro Young, or his value. This claim is founded on two grounds. The first is, that the purchase made by James M ’Morris of the negro, at the sale of Cates, was invalid and void; and secondly, that Hatton was a purchaser with notice of the claim Qf t]ie complainants. With respect to the first point, the ,, ,, ,,. , , law has been clearly settled in numerous cases, that such purchase is void. In regard to the second point, the evidence of implied notice is incontrovertible: but there . . .... was no necessity or resorting to implied notice, as posi-actual notice has been proved. The complainants are entitled to the amount for which the negro, Young, was sold by the Commissioner under the writ of sequestration> which is accordingly decreed to them.
    The purchase of an executor at a sale of the estate, made thehdhecüons of the will, is void; and it a third person executor with cupies’the cxecuto*and hoids_ foFf the estate.
    
      Page’s case depends upon very different grounds. It is attempted to create a liability as to him, under the doctrine of “ Us pendens.” This doctrine in many of the reported cases has been extended to a most unwarrantable length, equally inconsistent with the principles of justice and common sense, not unfrequently contradictory, and in this particular case has been laid down entirely too broadly. I have never yet met with a case where it has been applied beyond the property in litigation. In the present instance, the negro Will, mortgaged by M’Morris to Page, was his own absolute property: the mortgage was executed anterior to the sequestration of the goods and effects of M’Morris. It does not appear from any evidence before the Court, that Page had any knowledge of the suit between complainants and M’Morris, further than the implied notice arising from the “lispendens.” He gave a valuable consideration for the negro, and the transaction was bona fide, untinctured with the least species of fraud, and ought not and cannot be disturbed by any Court having regard to justice and the laws of the land. The injunction is therefore ordered to be dissolved, .the petition dismissed, and Page left to pursue his remedy at law.
    From this decree the complainants now appealed, and moved to reverse it, and for a decree in their favour, on the following grounds:
    
      First. That the mortgage and bill of sale, as to the complainants, were fraudulent and void.
    
      Second. That the mortgage and bill of sale were both executed after the filing of the bill, and after Page had full knowledge thereof, as well as of M’Morris’s insolvency, with a view to give a fraudulent preference to debts not due.
    
      Third. That the mortgage and bill of sale must be regarded as a subsequent lien to that of the complainants, their claim being entitled to rank as a mortgage, from the sale of Aaron Cates’s property in 1816.
    
      Fourth. That the consideration of the bill of sale of the negro Will was altogether executory, and not performed by Page, and it was therefore void.
    
      Hatton also appealed on the following grounds :
    
      First. That the purchase of the negro boy Young, at the sale of the testator’s estate by the executor James orris, ought to have been sustained as valid in law and equity, inasmuch as there was no fraud in the pur-c¡iase) tjle price being the full value of the property, he being interested in the estate to the extent of the purchase, and had possession under that purchase during several years.
    9 Feb. X826.
    
      Second. That the claim of Hatton ought to have been supported, inasmuch as he purchased of Dr Garcy, who had purchased the negro boy of the executor James M’Morris for a valuable consideration, without notice that the executor had purchased him at the sale of the testator’s estate.
    
      J. Johnston, as to Hatton’s rights. M ’Morris, the executor of Cates, purchased the negro Young at his own sale of his testator’s estate; and both Garcy who purchased from M’Morris, and Hatton who purchased from Garcy, knew this.
    The executor’s purchase at his own sale was void, and the slave still belonged to Cates’s estate, 2 Johns. Cha. Rep. 252. If not, still as M’Morris had never paid for him, the Court would follow him and subject him to a lien for his price. Inasmuch as the will of Cates required purchasers to give bond and mortgage, equity would consider that done by M’Morris which he ought to have done, and consider him as holding the slave he purchased, subject to a mortgage lien. He, as executor, could not take property on any other terms than those laid down in the will, if upon those terms; nor could he change the nature of the security required by the testator. The intention of Cates was, plainly, to have the benefit of a mortgage lien, and the executor could not deprive him of it. The principle was analogous to that laid down in the case of Executors of Gadsden v. Executors of Lot'd, I Desaus. Rep. 208, where an executor’s estate was charged as of a bond debt, with moneys collected by him on bonds due to his testator. Purchasers from the executor, with notice of the lien, hold subject to it as well as the executor. Here they had notice. Besides, the record of the will requiring the executors to take mortgages, &c. was constructive notice, in addition to that arising from the pendency of the present suit.
    As to Page’s rights, M ’Morris, as executor having been required by the will of Cates to take mortgages on the sale of the estate of Cates, was to be presumed to have done so. Being charged by the Commissioner, on his accounting, with the whole amount of that estate, was evidence that he had collected it: or in other words, that he had received $20,000, or $30,000, to which that estate amounted on mortgages. But if he received it on mortgages, according to the decision in Cadsdén v. Lord, his own estate instantly became bound by an equitable lien of the same grade. If Page had notice of the facts, he took subject to the same. That he had notice was clear. The will was notice, being on record. He knew of the pendency of this suit, which charged M ’Morris with the estate as a defaulter. He knew of the appointment of the receiver, on the ground of M’Morris’s inability to meet the complainants’ demand; and by relation back of every transaction in the progress of a cause to- the time of its commencement, he was, by law7, charged with notice of the sequestration, although it took place a few days after Page took his mortgage. Sorrel v. Carpenter, 2 P. Wms, 482.
    A person commencing a suit must necessarily be understood to be about to do all he can do towards asserting his rights. It is on this principle that after process relates back to the commencement of the suit, and affects all the world with notice for that time. The plaintiff must be considered by the world as already, at the very outset, exerting all the^ pow'er he possessed; which although but in posse, yet as to others must be considered as in esse.
    
    Besides, Page knew that M ’Morris was an execu-j-q^ ancj knowing him in that character, he could not, after suit, contract with him, but in reference to all his liabilities under that suit as such. 2 Johns. Cha. Rep. 158. Alienation pendente lite was void, even for a valuable consideration.
    As to the land mortgaged. The only consideration proved was $5. The store account set up was for purchases by M’Morris’s daughters who had separate property, and some of whom were of age. Under the circumstances M’Morris ought not to be allowed to pay it. It was tantamount to charging it on Cates’s estate when the daughter’s own property should be liable. The account was not for necessaries.
    As to the negro, Will. The evidence shewed conclusively the store account of $306.24, which formed the consideration of the land mortgage, entered also into this. The rest of the consideration of the mortgage of Will consisted altogether of a contract for future advances by Page to M’Morris. The incumbrance of this suit was known to Page; and all subsequent payments and advances were void. 2 P. Wms, 307. 1 Atk. 382. Notice of incumbrances before a party takes titles is sufficient. 7 Johns. Cha. Rep. 65.
    As to both land and negro, the complainants’ equity was equal at least to Page’s; particularly as to the negro : and being equal, Page’s claim should not have been allowed. 3 Johns. Cha. Rep. 371. 7 Johns. Cha. Rep. 65. 2 P. Wms, 482.
    
      J. J. Caldwell, (and John Caldwell was with him) for Hatton. The complainants’ claim ranks only as a simple contract debt. 2 Madd. Cha. 114. Taking a security for a debt is equal to a consideration. 2 Madd. Cha. 25'/. A purchaser for less than the real value will, if bona fide, be supported. If JWMorris could mortgage for any consideration he might for the support of his family. The mortgage preceded the sequestration.
    n Feb. 1828.
    As to Hatton's bill of sale, M’Morris although an executor could purchase at his own sale; at least to the extent of his interest. And M’Morris had an interest to the extent of his commissions at 10 per cent. M’Guire v. M’Gowen, 4 Desaus. Hep. 486.
    The Chancellor mistook the facts. Garcy had no notice, although Hatton had. Hatton was to be protected by Gat'cy’s ignorance. A purchase with notice from a purchaser without notice should be supported. 2 Madd. Cha. 257. So of a trustee without notice. 2 Madd. Cha. 114. 214.
    
      O’JVeal, in reply.
    The Court was to protect the interests of the complainants, their wards. 2 Madd. Cha. 114. 2 Atk. 119. Page’s debt was not due till January 1825, M’Morris could not prefer one creditor over another after suit commenced.
   Cueia, per

Nott, J.

It is unnecessary to trace the history of the bill in order to ascertain in what manner Pendleton Page became a party in the case. It is sufficient to state that it has become a question, whether he is entitled to the two sums above mentioned out of the estate of the said James M’Morris; or whether the debts are fraudulent; or, if due at all, whether they, or either of them, were contracted under such circumstances that they ought to be postponed to the demand of the complainants.

The grounds on which the complainants rest their claims are,

The doctrine of Us pendens being notice to all the ^extended* beyond the property, the immediate ob-suit °f th<3

Ifapurcha-ser buys the gatof he'111" takes it^sub-claims of the bufevenTn ’ those cases the principle is cautiously admitted.

1. That the filing of the bill was notice to all the world of complainants’ demand; and that therefore every person purchasing the property, or taking any in-cumbrance upon it, must take it subject to that claim.

2. That if the bill itself did not operate as notice the order of sequestration ought to have relation back, and to operate as a lien on all M’Morris’s property from the time of filing the bill, which was anterior to the mortgage.

3. That on various other grounds, the sale of both the ]an¿ an(j negro to Page ought to be considered as frau- ° , . . dulent and void against these complainants.

On the first ground, I concur with the Chancellor, that ^he doctrine of “lis pendens” being notice to all the . „ . , world ought not to be carried too tar. it ought not to be extended beyond the property which is the immediate object of the suit. Nor do the authorities authorize a J . . , greater extension of it. The object is to prevent that interminable round of litigation which must ensue if property might be shuffled from hand to hand to elude the process of the law. It is then a wholesome and sound principle of law, that when a person purchases property while the subject of litigation, he must be held to take it, subject to the claim which the complainant has upon it. Were it not so, a person might be perpetually in pursuit of his rights without ever being able to overtake them. Therefore where a person purchases an estate during the pendency of an action to try the title, or where a bill is filed to obtain an estate which is charged with the payment of debts, the estate will be subject to those prior claims. Walker v. Smallwood, Amb. 676. Sorrell v. Carpenter, 2 P. Wms, 482. But even in those cases the Courts admit the principle cautiously. Therefore in the case last mentioned, Lord Kins would not let the complainant amend his bill to enable him to set aside a sale made pending a suit, because it appeared that the defendant was a bona fide. purchaser, without any notice except what was implied from the pendency of the bill. It does not appear to me therefore that the title of the defendant can be impeached on that ground.

gag°^v™”by the. defendant pmpertjTan-ter,ior‘° an order for sequestration, quentiy to the ®!}?s *h,e priority to the anTafthough’ n!01'fSaSe was given to secure advan-subsequently6 thereto, “ at different pe-nods,” to the todfSfnLt„ Provi-sions for his family,” itwill extent ofthe*5 advances; which the mortgage beenac-hiaily advan-

The second ground appears to be equally untenable. The order for the sequestration was anterior to the mortgage; and can only take effect from the time it was awarded. Burdett v. Rockley, 1 Vern. 68. It cannot v? be made to trace relation back to the time of filing the bill so as to overreach a bona fide contract, previously entered into.

The third ground I think is entitled to more consideration. With regard to that part of the defendant’s claim which was secured by the mortgage of the 7 ° of land, I do not see' any ground on which the Court can interfere. It appears to be a regular merchant’s account liquidated by note, and as far as I can discover, for a , j. 7 -i • . -ii7 bona fide consideration. A considerable part of it was for articles purchased by his daughters, and perhaps an amount which did not exactly comport with . . . nomy which the situation of his affairs at that time seemed to require. But it was not so extravagant as to furnish such evidence of fraud as to authorize the interposition « - . ~ x Of this Court. *

The mortgage of the negro Will, however, stands upon different grounds. The two mortgages bear cotempo-raneous date. And it is very apparent from the testimony that it was the object of the parties to make a final settlement of all accounts between them at that time. That not only appears from the face of the papers, but from the declaration of the defendant himself. He was desirous of effecting a settlement, and getting security for his debt on account of the sinking situation in which he considered M’Morris to be. It is further apparent from the circumstance, that although a mortgage .of the negro was given, it was not accompanied with any evidence of a subsisting debt. Nor has the' defendant himself when examined on oath been able to give any satisfactory account of the consideration for which it was given. But it is explained by the other testimony; by which it appears, that it was intended as a security for future advances to be made for the support of M’Morris’s family. It was incumbent on him, therefore, to shew how much he had actually advanced. It does appear that he has made advances in pursuance of that contract, and on faith of the property mortgaged to the amount of about sixty dollars. That sum therefore he is entitled to retain out of the proceeds of the sale of the negro, and no more.

It is therefore ordered and decreed, that so much of the Chancellor’s decree, as ■ relates to the defendant’s debt which was secured by the mortgage of the land, be affirmed ; and that the decree be so modified, that he be also allowed to retain out of the proceeds of the sale of the negro the money which he has advanced on that account, with the interest thereon; and that it be referred to the Commissioner to ascertain the amount, and that the balance be paid into the hands of the receiver for the benefit of the complainants.

The Court concur in opinion with the Chancellor so far as the decree relates to the case of Hatton, and the motion therefore in that case is refused.

Decree modified. 
      
       In Partridge v. Gopp, 1 Eden’s Cha. Rep. 163, Ambl. 596, the doctrine of “pendente lite” was carried farther than in this decree. The mortgage here, so far as it embraced future advances to be made for the support of M’Morris’s fámily, was certainly not less voluntary than the gift of £500 apiece by Shewell to. his two daughters for their maintenance, pending a suit against him to account as executor under circumstances very similar to those of the present case. In both cases it is as Lord Keeper Heni/ey said, “ affection getting the better of justice:” and as M’Morris might afterwards demand the supplies.himself for his family, it is something like “ a reservation for his own benefit.” But Partridge v. Gopp has been said to have gone farther than any other case. See Eden’s and Ambler’s notes to that case. See ante, Adm. of Rutledge v. Exec, of Smith, page 119.
     