
    SIMON v. SABB.
    1. Administrators and Executors — Foreclosure—Fraud—Parties.— The personal representative of a deceased grantee, who is not a debtor of plaintiff, and who has no control over the lands or the proceeds thereof, is not a necessary party to a foreclosure suit seeking to set aside the conveyance to such grantee and another on the ground of fraud.
    2. Ibid. — Parties—Foreclosure.—The personal representative of a deceased mortgagor is a necessary party to a suit in foreclosure.
    3. Pleadings — Married Women — Agricultural Supplies — Foreclosure. — A Complaint foreclosing a mortgage (1883) given by a married woman to secure a debt for agricultural supplies, must allege that it was a debt contracted for benefit of her separate estate.
    4. Married Women. — The proof here shows that this debt was not one contracted by a married woman for benefit of her separate estate.
    5. Pleadings — Demurrer.—A Complaint entitling plaintiff to relief either on the la'w or equity side of the Court is not subject to demurrer, because it does not state facts sufficient to constitute a cause of action.
    
      6. “Case” — Appeal.—Exceptions alleging error in Circuit Judge in not sustaining exceptions to master’s report, which exceptions only appear in exceptions on appeal here, will not be considered. -
    Before Aldrich, J., Barnwell, December, 1898.
    Reversed.
    Foreclosure by Joseph A. Simon against Lucretia Sabb, Grace Morgan, Julia Jones, Hannah Mixson, and Peyton M. Cater, on the' following conjplaint:
    The plaintiff, by his complaint herein, respectfully shows: I. That one John J. Cater, of the county and State aforesaid, departed this life on or about the day of , 18 , leaving a considerable estate in land, which was subsequently, divided among his children, and the tract hereinafter mentioned was part and parcel of the share allotted to his daughter, Susan E. Creech, in said division; and thereafter the said Susan E. Creech conveyed the same to one Caroline Williams, by her deed of date 28th day of November, 1879, and the said Caroline Williams entered upon the possession thereof, where she remained until the date of her death, which occurred ábout the year 1889. II. That during the year 1882, the entire real estate which was of the said John J. Cater was levied upon under judgment against his legal representatives for a debt contracted by the said John J. Cater in his lifetime, and sold by the sheriff of Barnwell County, ■ and was purchased by the defendant, Peyton M. Cater, who took the sheriff’s title to the same. III. That 'the said Peyton M. Cater bid off the said land in behalf of and under a parol agreement .with all the children of the said John J. Cater, each child, including the said Peyton M. Cater, assuming his or her share of the purchase money of the land; each party, by the terms of the said agreement, to receive a conveyance from the said Peyton M. Cater of that portion of the land previously allotted to him or her in the division aforesaid, upon the payment to the said Peyton M. Cater of his or her proportion of the purchase money aforesaid; .and the said Susan E. Creech fully complied with the conditions aforesaid, and was entitled to receive from the said Peyton Mi Cater a conveyance of her share of the land; and, in order to perfect the title of said Caroline Williams, requested and directed the said Peyton M. Cater to convey to her the tract of land previously sold to her by the said Susan E. Creech, as hereinbefore stated. IV. That on the first day of March, 1893 (clerical error in original, should be 1883), the said' Caroline Williams, desiring to obtain advances for agricultural purposes from one Nathan Simon, offered to secure the same by a mortgage upon her land, the same tract of land hereinbefore referred to, and pursuant to said agreement prepared her note in writing for the sum of $250, which is hereto annexed as a part of the complaint, and a mortgage of the land hereinafter described, to secure the said note; which note and mortgage, however; were not executed until the 6th day of the said month; a copy of the said note is as follows: “$250. Allendale, S. C., March 6, 1883. On the 15th day of October next, I promise to pay to the order of Nathan Simon, at Allendale, S. C, $250, with interest at seven per cent.- and commissions on advances at five per cent. Witness my hand and seal. (Signed) Caroline (her X mark) Williams, (l. s.) Witness: B. B. Sanders.” V. That the defendant, Caroline Williams, on the 6th day of March, 1883, to secure the payment of the said note, executed and delivered to Nathan Simon her deed, and thereby conveyed by way of mortgage to Nathan Simon, his heirs and assigns, the following lands and tenements, situated in the said county: “All that tract or parcel of land, lying and being in the State and county aforesaid, containing fifty acres, being a part of lands of the estate of John J. Cater, deceased, inherited by Susan E. Creech, bounded north by lands of N. M. Walker, south by lands of Susan E. Creech, west by lands of J. W. Knepton, and surveyed by T. B. Cold-ing, August 28th, 1874.” VI. That on 22d day of March, 1883, the said mortgage was delivered to the register of mesne conveyance of the said county, and was by him recorded vol. 4 T, pages 511 to 513. VII. That thereafter, to wit: on the 18th day of April, 1883, the said Nathan Simon duly assigned the said note and mortgage to' the plaintiff. VIII. That on the 5th day of March, 1883, during the interval of time between her application for credit and the execution of the said note and mortgage, .the said Caroline Williams and her husband, one Solomon Williams, the latter acting for and in behalf of the said Caroline Williams, and aiding and counseling her herein, in collusion with Julia Jones, defendant, and Rebecca Williams, since deceased, intending to cheat and defraud the said Nathan Simon, and to. defeat the mortgage which the said Caroline Williams was about to execute to the said Nathan Simon for advances as aforesaid, procured .the said Peyton M. Cater to make the title to the said tract of land to her daughters, the defendant, Julia Jones, and their daughter, Rebecca Williams, a minor, who has since died intestate and without issue, leaving as her heirs at law all the defendants herein except defendant, Pey-ton M. Cater. IX. That the said Peyton M. Cater had no> knowdedge of the intended fraud, but acted in good faith, as he supposed, in carrying out the instructions of the said Susan E. Creech, but that the said sale was without consideration, fraudulent, and void, as to the right of the plaintiff. X. That the knowledge of the fraud came to' the plaintiff, or his assignor, Nathan Simon, within six years next preceding the commencement of this action. XI. That thereafter, to wit: in the year 1889, the said Caroline Williams, who had never parted with the possession of said premises, died intestate, leaving her husband, the said Solomon, and her children, the defendants, Lucretia Sabb, Grace Morgan, alias Grace Mixson, Julia' Jones/ and Hannah Mixson, her distrib-utees' and heirs at law. And the said Solomon Williams di'ed soon thereafter, leaving as his heirs and distributees his children, the said defendants. XII. That the condition of the said note and mortgage has been broken, and there is due and remaining unpaid upon the said note and mortgage the sum of $250, with interest from the 6th day of March, 1883. Wherefore, the plaintiff prays that the deed of conveyance from the said Peyton M. Cater to the said Julia Jones and Rebecca Williams be set aside. That the mortgage be foreclosed, and the premises ordered to be sold and the proceeds applied to the payment of the said debt.
    From Circuit decree, defendants appeal.
    
      Messrs. R. A. Ellis, B. T. Rice and Thos. S.Moorman, for appellants,
    cite: No allegation that plaintiff was not aware of alleged fraud within six years: 36 S. C., 28. Complaint does not state that this was such a contract as would hind a married woman: 24 S. C., 361. Nor that plaintiff has exhausted his legal remedy: 1 Hill Eq., 113; 18 S. C., 526. Representatives of deceased parties are necessary parties: 1 Hill Eq., 338; 26 S. E. R., 224. All proceeds of mortgaged property should he credited on the debt: 9 S. E. R., 118; 37 S. C., 213; 1 S. C., 129; 6 S. C.,-75; 20 S. C, 549. Debt being tainted with usury, no interest can be set off against payments: 2 McC., 369; 1 Rich. Eq., 414; 1 S. C., 231; 1 McM., 229; 2 Rich., 2. Usury zms properly pleaded: 45 S. C., 60; no Ind., 408; 108 N. C., 218. Heirs may plead coverture: 116 Ind., 408; 30 S. C., 159.
    
      Mr. I. L. Tobin, contra,
    cites: Caroline Williams is estopped by her fraudulent representations: 17 S. E. R., 832.
    August 2, 1899.
   The opinion of the Court was delivered by

Mr. Justice Gary.

As some of the exceptions raise the question that his Honor, the Circuit Judge, erred in refusing to sustain the demurrer interposed by all the defendants except Peyton M. Cater, it will be necessary to set out the complaint in the report of the case.

The first exception alleges error, as follows: “Because his Honor overruled the demurrer to the complaint for defect of parties, and held that the administrator of Caroline Williams and of Rebecca Williams, persons mentioned in the complaint, were not necessary parties defendant; whereas he should have held that the administrators of said deceased persons were necessary parties defendant in this action, they being charged with fraud.” We will first consider whether the administrator of Rebecca Williams was a necessary party defendant. Section 143 of the 'Code contains the following provisions: “The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determine of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in.” AVhether it is necessary that an administrator or executor, as the case may be, should be made a party to an action, depends upon the facts of the particular case. Fogle v. Church, 48 S. C., 86. The plaintiff was not a creditor of Rebecca Williams; she was not liable for the mortgage debt, and no judgment could be rendered against her administrator, who, it is not alleged, has any control over the lands or the proceeds thereof. Under these circumstances, the case of Trapier v. Waldo, 16 S. C., at page 288, shows conclusively that the administrator of Rebecca Williams was not a necessary nor even a proper party defendant. The act of 1894, hereinafter considered, has n0‘ application to the question whether the administrator of Rebecca Williams was a necessary party to the action.

The next question that will be considered is whether the administrator of Caroline Williams was a necessary party defendant. The act of 1894, 21 Stat., 816, contains the following provisions: “That from and after the passage of this act, no sale under or by virtue of any mortgage or other instrument in writing intended as security for a debt, shall be valid to pass the title of the land mortgaged unless the debt for which the security was given shall be first established by the judgment of some Court of competent jurisdiction, or unless the amount of the debt be consented to in writing by the debtor, &c.” The other provisions have no application to this case, as it is not pretended that there was any such consent. Whatever doubt may have existed prior to1 the act hereinbefore mentioned of the necessity for making the administrator of the mortgagor a party defendant, when the plaintiff only- sought to subject the mortgaged property to the payment of the debt, there was no doubt even prior to said act of the necessity for malting the administrator of the mortgagor a party defendant, if in addition to subjecting the mortgaged property to the payment of the indebtedness, • he also desired a judgment against the mortgagor’s estate, in order to- recover any deficiency that might remain after exhausting the mortgaged property. The act of 1894 deprived the mortgagee of the right to' subject the mortgaged property to the payment of .the debt before establishing the debt secured by the mortgage by the judgment of a Court of competent jurisdiction. In other words, it became necessary to recover judgment for a specific sum against the mortgagor’s estate before the mortgaged property could be sold. In order to recover such judgment the administrator of the mortgagor was a necessary party to the action, and the Circuit Judge erred in not so holding. The act shows upon its face that it has reference to- the foreclosure of mortgages executed prior, as well as those executed subsequent, to the passage of the said act. It only related to the remedy, and the legislature had the right to- make it applicable to the foreclosure of. mortgages, whether executed prior or subsequent to its passage. Stoddard v. Owings, 42 S. C., 88. The effect of sustaining the exceptions raising this question is a dismissal of the complaint, unless this Court should order the complaint to be retained so that it may be amended.

We will therefore consider the other exceptions for the purpose of determining whether there is such merit in the plaintiff’s case as demands that the complaint should be retained and amended. The second exception is as. follows: “II. Because his Honor, Judge Townsend,- overruled the demurrer, as to the second paragraph thereof, and held that the complaint stated' facts sufficient to constitute a cause of action; whereas he should have held that the complaint did not state a cause of action, in the following particulars: I. That the complaint stated as the basis of action, a note of a married woman with mortgage to secure advances for agricultural purposes, but does not allege that it was such a contract as a married woman could make, nor that it was for the benefit of her separate estate. 2. The plaintiff asks relief in equity against alleged fraud on a note tainted with usury; whereas it is submitted that he cannot come into* equity claiming relief on a note whose provisions violate the statute law of the State. He must come into equity with clean hands. 3. The plaintiff,' after alleging assignment to himself of bond and mortgage, does not allege that he is the innocent assignee of the same for value without notice; and without such allegation he is not entitled on his complaint to relief in equity. 4. The complaint alleges that Caroline Williams, charged with fraud, died before the commencement of this action; it is sought to recover on a note executed by said Caroline Williams as a security for advances made, and to sell, in order to' pay the note of said Caroline Williams, certain land, the legal title of which is in Julia Jones and the heirs at law of Rebecca Williams, deceased. It is alleged in the complaint that said Caroline Williams died intestate, and yet no allegation is made in the complaint to charge any personal representative either of Caroline Williams or of Rebecca Williams, although both are charged with fraud in the complaint.”

We will consider the questions raised by this exception in their regular order. At the time this contract was entered into, the right of a married woman to make such a contract was dependent on the power conferred upon her by the statute, and the burden of proof was on the person dealing with her to show that the contract was made with reference to her separate estate. In this case the complaint shows that Caroline Williams was a married woman when the note and mortgage were executed, and there are no allegations showing that the agricultural supplies were for the benefit of her separate estate. The complaint was, therefore, subject to demurrer, and the Circuit Judge erred in overruling it. But even if the allegations of the complaint were sufficient to. constitute a cause of action, the written testimony, to wit: the memorandum of agreement when the-note and mortgage were executed, shows that the contract was not “as to her separate estate.” The memorandum of agreement which sets forth the consideration of the mortgage is as follows: “Memorandum of agreement made this 6th day of March, A. D. 1883, between Nathan Simon, of Allendale, S. C., merchant, and Stephen Mixson, William Solomon Williams, and Caroline Williams, of Barnwell County, planters. The said Nathan Simon agrees to- advance at his discretion to the said Solomon and Mixson such supplies for agricultural purposes as he may require from time to- time, not exceeding in the aggregate the sum of $250, to be employed in the cultivation of the plantation known as Mrs. Barnes’ Turkey Creek place, and about thirty acres, and the place of Caroline Williams, containing about fifty acres, twenty of which is under cultivation. The thirty acres on the place of Mrs. Barnes being the amount thereon cultivated by us. And the said- Caroline Williams, William Solomon Williams, and Stephen Mixson hereby agree that the said Nathan Simon shall have a lien for said advances, and the interest due thereon on all crops made on the said plantations during the year of 1883, in accordance with and subject to the provisions of the laws of the State of South Carolina. We further agree to ship to said Nathan Simon, or his factor, as he may direct, on or before the 15 th of October next, ten bales of cotton, and in default thereof to pay a commission of two and one-half per cent, thereon. We further bind ourselves that this is the only lien given this year on our crop and the only one we expect or intend to- give. Witness our hands and seals, the day above written. Caroline (her X mark) Williams, (l. s.) William Solomon (hisXmark) Williams. (l. s.) Stephen (his X mark) Mixson. (l. s.) Sealed and delivered in the presence of B. B. Sanders, F. S. Owens.” The note and mortgage were executed for the purpose of securing payment for the said advances which were to be made to William Solomon Williams and Stephen Mixson. It was, therefore, not a contract-“ás to her separate estate.”

2. We. will next consider the second question raised by this exception. It has been frequently determined by this Court that a complaint is not subject to a demurrer, if it contains allegations entitling the plaintiff to relief either on the law or equity side of the Court. This principle is conclusive of the question under consideration.

3. We proceed to a consideration of the third question raised by this exception. If the nóte and mortgage were valid, the mortgagee unquestionably had the right to' assign them, and the question whether the person to whom they were assigned was an innocent assignee for value without notice, has nothing to do with this case.

4. The fourth question is disposed of by what was said in considering the first exception.

The exceptions to the master’s report are not set out in the record. All the exceptions .to Judge Aldrich’s order, except one, are based upon the fact that he overruled certain exceptions to the master’s report. The exceptions to the said report are set out in the exceptions to the order of Judge Aldrich, but as they are not set out in the record elsewhere, they cannot be considered. It has been determined time and again that this Court will not consider, as part of the record, statements which are only contained in the exceptions. The rule has for its object the prevention of misunderstanding between counsel. Of course, this Court does not mean to reflect upon the attorneys for the appellants in refusing to consider said exceptions.

The only exception to the order of Judge Aldrich which is not susceptible to the foregoing objection is the one which complains of error in adjudging that Julia Jones and Lucretia Sabb pay any deficiency that may arise after exhausting the mortgaged property. This -was error, and- is disposed of by what was said in considering the first exception. We see no reason for allowing the complaint to> be retained for the purpose of amendment.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed and that the complaint be dismissed.  