
    
      Ex Parte, Ex’ors of George Stephens, Ex’or of John R. Stephens.
    The testator bequeathed all of his negroes to be divided equally among his grand children, share and share alike, among such as should be living at the time of such division, and not otherwise ; and that the division should take place so soon as the debts be paid. A sale was. made by the executor to enable each legatee to purchase in the amount of his share, and the husband of one of the legatees purchased two negroes, and gave the executor a bond and mortgage for the same, endorsed, “given as security in case of any demands or suits ''oming against the estate, or till a Jinol settlement take place.” Afte? tills, a bill was filed, and a partial decree made for partition ; but y.e; tio division made; and then the wife or the pm chaser died. Edit, that by the sale, the debts were to be presumed paid, and that the legacy, by this sale, was placed by assent of the executor in possession of the husband, and that he could not revoke if, or recall the property, Oil the ground that no division had been made.
    On a rule ag-ainst the sheriff, to pay moñej over to a mortgage in preference to an execution or attachment, which mortgage, though not recorded, plaintiff’s counsel contended took priority .to judgments, executions, &c. The Court refused to decide the question of priority on a motion, as it involved facts which could alone be tried by a jury. ■
    .i-HIS was a rule against the sheriff, heard before Mr. Justice Gantt, at November Term, 1820, for Beaufort: district.
    
      George Stevens, by will, bequeathed as follows:
    a It is also my will and desire, that the whole of my ne-groes be divided equally among the male and female children generally, of Martha Givens ; the children of Joseph Oswald, generally ; the children of William Oswald,, of St. .Helena, by name, Benjamin and Robert Oswald; together with my other child or children, which Martha Givensj wife of Charles Givens, might have, previous to such division ; all share and share alike, among such as shall be living at the time of suefi division, and not otherwise ; and that the division shall take place as soon as ths debts are: paid.”
    
      Charlotte Oswald, one of the children of Joseph Oswald, married Bethel Detves. A sale of the negroes was made by the executors on the 16th April, 1817, for the purpose of enabling each legatee to purchase in the amount of his share. Bethel Dexves, by the assent of the executors, bought, in right of his wife, two negroes, Jim, and Elsetj, ' and gave a bond and mortgage of the same to the executors. The mortgage had not been recorded. Upon the bond and mortgage, was the following memorandum.— “ Given as security, in case of any demands or suits coming against the estate, or till a final settlement take place.” it was admitted, that not long after the salej a suit in equl-
      if was brought by Sherwood Beekum and wife, claiming as legatee of John R. Stephens, in which a partial decree had. been made, and ;i further reference ordered on part of the complainants’ claim : that no division had yet taken place, and Mrs. Dewes was since dead.
    On thei 20th March, 1819, an attachment was lodged in the office of the sheriff of Beaufort district, in which David Turner was plaintiff, and the said Bethel Dezves, defendant; Dewes had hir'ed the negro ji:i> to-Burke, in whose hands, as garnishee, the said slave was attached, Bethel Dezvés, living, then absent from the State.
    On the -— day of April, 1819, two judgments were entered up in the office of the Court of Common Picas, for Beaufort district, by Dr. Philer and Myer Jacobs, against the said Bethel Dewes} upon which an execution issued, and being lodged in the sheriff’s office on the 7th August, 1820, levy was made on the negro Jim.
    
    0„n hearing of these proceedings, the executors v eve Notice of the mortgage to the sheriff, who thereupon sold, under the execution and mortgage, and had the money in hand, subject to the claims of the mortgage, execution and attachment creditors. The rule was as follows :
    “ Ex Parte, Ex’ors of George Stephens.” .
    “ On motion of McCall, Hayne, and Grimke, for the executors of George Stephens, it is ordered, that the sheriff of Beaufort district do shew cause instanter, hvhy he should hot pay over to them the amount of sales of a negro fellow named Jim, mortgaged to them by Bethel Dezves, and sold by said sheriff under said mortgage, and únder an execution of 3£yer Jacobs against the said BethetDezves.'’’
    
    On hearing argument in this case, the'rule was discharged.
    A motion was now made to reverse the said decision upon the following grounds:
    1st. Because, under the will of George Stephens, no legatee could claim a share of the negroes, if he or she should happen to die befóte a division was made; and therefore, the money coming in lieu of the negroes belonged to the estate, and should be paid to the executors.
    2d. Because, if the sale be regarded as a division, as be-* tween the executors and legatees, the executors are then entitled to the money, notwithstanding the mortgage was not recorded; inasmuch as it does not lose its priority over judgments, executions and attachments by that omission.
   Mr. Justice Gantt

delivered the opinion of the Courts'

I think no doubt can exist but that the sale, on the part of the executors, was made for the express purpose of enabling the legatees to purchase to the amount of their legacies. The testator, George Stephens, had, by his will, directed that s'o soon as the debts were paid, a division should take place» By the sale, therefore, it is to be presumed the debts had been .paid. Dezves, in right of his wife, was-, by this sale, placed in possession tif the legacy bequeathed to his wife, and this by the assent of the executors, who could not afterwards revoke it, or re-call the property on the ground of no division having been made» But it is said,

2ndly. That although the sale be regarded as a division, still- the executors are entitled to the money under the mortgage. . •

Whether they were entitled to priority of claim or not, in this instance, was a question which the presiding Judge did not feel himself warranted on the hearing of this motion to decide; and the Court think that the question was one, both as regarded the law and facts of the case, not to be decided in this short hand way, by motion. It was certainly not competent for the presiding Judge to determine upon the rights of the mortgagee in this case. There were facts involved,- which could alone be decided by a jury. Dezves and one of the execution creditors were not represented upon the occasion. Whether the mortgage did really exist under the circumstances of the case, was a fact which the Court could not decide. Dewes became involved after he had acquired the possession of this property, and most probably upou the strength of it. The right too, on the part oí the executors of George Stephens, to claim the proceeds of the sale,(on account of a decree against the estate of John R. Stephens, with respect to whose es» t tate. no evidence went to shew that a devastavit had been committed, or that it was not fully adequate in the hands of the executors for all the purposes to which it could be made liable. These views furnish sufficient evidence to conclude, that the presiding Judge, in discharging the rule and leaving the parties to their more appropriate and legal remedies, pursued the only correct and proper course. In this way, the rights of none will be coinpromitted.

The Court are unanimously of the opinion that the ap? pellants can take nothing by their motion.-

Justices Golcock, Richardson and Huger, concurred.  