
    *Sophia C. Messervey, and Others, v. J. A. Barelli, and Sophia Messervey.
    Plaintiffs and their mother being jointly entitled to an estate the latter administered, and proceedings in equity for partition were had in which the mother was appointed guardian of her infant children, and a sale was ordered for one-third cash, and credit for the balance with bond and mortgage to secure the purchases. At the sale the mother purchased the principal part of the estate, both real and personal, and gave bond and mortgage for the real, but paid no money, and after-wards had the bond and mortgage assigned to herself as guardian, gave her receipt to the Commissioner as such, for the shares of her children, and took titles. Defendant knowing the terms of the sale, (having acted as agent of the mother in the management of the estate,) and that no money was in fact paid, obtained a mortgage on the real estate purchased by her, to secure a debt due by her individually : Held, that the mortgage of the defendant must be postponed until plaintiff’s claims are satisfied. [*567]
    Where the Commissioner, under the order of the Court to deliver to the guardian the portion of her wards, whether in money or bonds, delivered up the guardian’s bond given for purchases on sales for petition, this is not a discharge of the bond and a satisfaction of the mortgage to secure it; and defendant, with a knowledge of the facts taking a mortgage from the guardian of the property purchased, takes subject to the equities of the wards. [*574]
    The Act of 1791 prescribing in partition gives a lien on the land for the purchase money, whether the sale be for cash or on credit. And the fact that the guardian and Commissioner interchanged receipts, will not in equity be regarded as a payment so as to extinguish this security. [*575]
    The Commissioner having in his report on the sales in partition, stated that he had paid over her share to a distributee who was of full age,-and the report confirmed is not an adjudication which will conclude plaintiff as to the fact of payment, that was not referred to the Commissioner, and was not in issue. And the confirmation was not intended to establish the fact of payment, but to approve it if done. [*580]
    
      The real estate of the guardian purchased at the partition sale and mortgaged, first ordered to he sold and applied to the plaintiffs’ claims before that mortgaged by guardian to defendant. [*582]
    Irregularities in form, cannot be taken advantage of after answering to the merits of the bill. [*583]
    Charleston, May Term, 1836.
    The following Circuit degree, presents a full statement of the case :—
    Johnson, Chancellor. In 1828, the late Capt. Messervey, of Charleston, died intestate, seized and possessed of real and personal estate of considerable value, distributable amongst the defendant, Sophia his widow, and six children,' who are the plaintiffs in this bill. Administration of his estate was granted to the defendant, Sophia, and by an order of this Court, at January Term, 1830, she was appointed guardian of all the minor children, being the whole of the plaintiffs, except Sophia and thus became possessed of the personal estate, and entitled to receive the rents, issues and profits of the real estate. In May, 1829, the plaintiff, Sophia C., filed her bill in this Court, on behalf of herself and the infant children of the intestate, praying a sale of the whole estate, real and personal, for the purpose of making partition, and the defendant, Sophia, answering that bill, assented that an order for the sale of the estate might be made for that purpose, and on the recommendation of Mr. Commissioner Hunt, the whole estate, was, at the same time, ordered to be sold, oxcept the furniture, for one-third cash, balance on bond and mortgage, payable in one and two years, the real estate to be insured, and the policy to be assigned to the Commissioner, for the benefit of the parties ; that the portions of the minor children, whether in money or bonds, or both, be paid and delivered over to the defendant, Sophia, their guardian, on her entering into bond, if that had not already been done, with sufficient security for the faithful discharge of her duties as guardian ; and that the furniture should be sold for cash, on the 12th January, 1830. Hunt the Commissioner, reported to the Court, that he had, in pursuance of the order of the Court sold the whole estate, and that the same had been purchased by the defendant, Sophia, at the gross *5fiRl sum $12,835 12 *and that he had paid to defendant, Sophia, 0b8-l one-third part of the proceeds, as her distributive share, and also the shares of her wards, the minor children of the intestate ; and to the plaintiff, Sophia, who was then of age, her share or portion. The Commissioner also reported, that he had investigated the accounts of defendant, Sophia, as administratrix of the estate, and found that the balance of $2,314 93 cents, was the distributive share of each child, of the whole estate, real and personal; and that the defendant, Sophia, had received that amount on account of each of her wards; and that he had paid over a like sum to the plaintiff, Sophia C., and recommended that the defendant, Sophia, should be discharged from her administration, and account annully with the Commissioner, for the estate of her wards— which report was confirmed by the order of the Court. The plaintiff, Sophia C., avers that so much of the foregoing report as represents that her portion of the estate was paid to her, or that the same was actually paid to her, Is not true in point of fact, and that she has not received the same or any part of it, and defies the production of any evidence to show it; but on the contrary, she was always under the impression, that her portion had been paid to her mother, the defendant, Sophia, with that of the minor children ; and believed that the orders of the Court, requiring the defendant, Sophia, to give a guardianship bond and security, and the purchaser at the Commissioner’s sale to pay one-third cash and to give bond and mortgage for the balance, had been strictly complied with. And the bill charges, that the defendant, Sophia, combining and confederating with defendant, Barelli, so far from complying with the terms of the order directing and requiring her to give bond and security, for the faithful discharge of her duty as guardian of her infant children, executed the said bond in her own name, but without any warrant or authority signed and sealed it, in the name of one Susannah G-leize, her sister, whereby the said bond is without the required security : nor did she give bond and mortgage for her purchases at the Commissioner’s sale, as required by the order for sale ; nor has she accounted with the proper officer of the Court for her management of the estate of her wards ; and the plaintiffs suppose and believe, that no conveyance was ever executed by the Commissioner to defendant, Sophia, for the property purchased at his sale. The bill further charges, that defendant, Sophia, having become indebted to her co-defendant, Barelli, on the 20th May, *1830, executed to him a penal bond, conditioned for the payment r*Kfiq of $5,008 50, and to secure the payment thereof, mortgaged to the ^ said Barelli, a three story brick building in Tradd street; a lot of land on the east side of Meeting street, at the corner of Cumberland and Meeting streets ; and a two story brick house and lot on the east side of Meeting street, No. 120 — of all which, the intestate was seized at the time of his death, and being part .of the real estate purchased by defendant, Sophia, at the sale of the Commissioner, That the defendant, Barelli, was upon the most intimate terms of friendship with defendant, Sophia, and acted as her agent in the management of the said estate, as appears from his own advertisement, published in the Charleston Courier of the 24th and 21th January, 1829, in which he desires all-persons who are indebted to the estate to make payment to him, and those to whom the estate was indebted to present their accounts properly attested. The bill further charges, that at the time the defendant, Barelli, took the said mortgage, he knew and was informed, that the premises were part of the estate of the intestate, and was privy to all the circumstances attending the sale by the Commissioner, and the purchase by the defendant, Sophia; but had notwithstanding procured, in a judicial proceeding in the Court of Common Pleas, an order for the sale of the premises, to foreclose the equity of redemption, and that in pursuance thereof, the premises had been advertised for sale by the sheriff under instructions from defendant, Barelli. The bill prays, amongst other things, that defendant, Sophia, may account for the plaintiffs’ respective portions of the estate, and that she be required to give a new guardianship bond, with sufficient security to cover all the demands against her, that the sales of the real estate be set aside as fraudulent; or that defendant, Sophia, be required to give a mortgage of the property purchased by her at the Commissioner’s sale, as of the day of sale, and that the mortgage from her to defendant, Barelli, may be decreed to be null and void, as far as regards the claims of the plaintiffs : that the defendant, Barelli, be enjoined, from selling the premises under the order obtained at law, to foreclose his mortgage — and for genei’al relief. The defendant, Sophia, has not answered. The defendant, Barelli, answering, admits the death of Capt. Messervey, intestate, leaving the estate and family stated in the bill, and understood that the estate *5701 was settled by a proceeding in the Court of Equity, *and -* that defendant, Sophia, was advised to become the guardian of her minor children, and supposed that every thing done under the sanction of the Court was correctly done, but was otherwise a stranger to the proceedings. He denies all combination with Sophia, and states, that having become largely indebted to him, she gave the bond and mortgage, stated in the bill, to secure the payment. He admits, that when he took the mortgage, he knew that defendant, Sophia, had the same under a sale from the Commissioner, but she assured him that she had a good title, and that it was only necessary to pay the fees, which she requested him to do, and referred him to Mr. Hunt the Commissioner. On calling on Mr. Hunt he told him that defendant, Sophia, had bought the property, and settled with him, and he was ready to deliver the titles when the fees were paid. Defendant, Barelli, paid the fees, and took the title deeds and delivered them to defendant, Sophia, or they were delivered to' her by Mr. Kane, the clerk of the Commissioner Hunt. That through the agency of Messrs. Hunt and Shand, he obtained a certificate that there was no record of any mortgage of the premises in the office of register of mesne conveyances, and from all the other offices in the city, where, if there were any incumbrances, they would be found; that none such existed, and on the faith of these, and the representations of the defendant, Sophia, that her title was good, and that she intended to record the conveyance from the Commissioner to herself, he consented to accept the mortgage of the premises as a security for the sum due him; and that so far from knowing that there was any mortgage from defendant, Sophia, to the Commissioner, or other incumbrances, he acted with all the caution which his knowledge enabled him to exercise, and in full confidencé that defendant had a perfect title to the premises mortgaged to him. He admits that he may have read the notice of the sale published by the Commissioner, but avers that he did not charge his memory with the terms, and denies that he had any agency in obtaining the order for sale, or in the settlement between defendant, Sophia, and the Commissioner; and was in fact ignorant of the decree, and a stranger to the proceedings for dividing and settling the estate, and trusted to the certificates, that there was no incumbrances on the estate, without knowing, or hearing, or being given to understand, that there was any fraud or irregularity in the transaction. He admits, that in the course of a legal *5711 Proceeding in the Common *Pleas, he obtained an order for the d sale of the premises mortgaged to him, and the plaintiffs’ prayer for an injunction having- been refused, they were sold by the sheriff on the 5th August, 1833, and that he purchased the houses and lots in Meeting and Tradd streets, at $3,800, leaving a balance still due him on the judgment against defendant, Sophia. He insists on his title thus obtained, and denying all fraud and combination, prays to be dismissed, &c.
    On the trial of the case, it appeared in evidence that defendant, Barelli, was on terms of intimate friendship with defendant, Sophia, and her family ; paid Ms addresses to the plaintiff, Sophia C.; and was so marked in his attentions as to induce her friends to suppose that they were engaged to be married. To her mother, defendant Sophia, he familiarly applied the epithet of “ mother,” to her sisters that of “ sister,” and to her aunts that of “aunt;” and was a constant visitor at the house, and took all liberties he would have done if he had been a member of the family, but afterwards married another lady.
    In January, 1829, as stated in the bill, he advertised himself, in the Courier, as the agent of defendant, Sophia, the administratrix of the estate, giving notice to those indebted to the estate to make payment to him, and to those to whom the estate was indebted to present their demands to him, and made the inventory of the estate. The auctioneer, Mr. Logan, who conducted the sale made by the Commissioner, had instructions from defendant, Sophia, who did not even attend the sale, to act under the direction of Barelli. The prices were limited by him at so high a rate, that no one else bought any thing, and he bid off the whole on account of defendant, Sophia. • The sales were reported to him, and he gave a check for the commissions. Dr. Schmidt, who attended the sale with a view to purchase some of the property, applied to him to know whether it was wanted for the family, for, in that event, he did not intend to bid. He declined answering this question directly, but remarked that nothing would be suffered to go out of the family at less than the prices fixed.
    The evidence is very abundant, that such was the influence which Barelli had obtained over defendant, Sophia, and such the confidence she reposed in him, that she confided the management of the estate almost exclusively to him, and would do no act herself in relation to it without his approbation. In the language of one of the witnesses, she acted upon his ipse dixit.
    
    *This confidence probably originated in her own incapacity for business, and in the confidence that he would becomeinterested in it L by an intermarriage with her daughter. She had also become indebted to him, in consequence of having engaged with him as a partner in sailing a vessel to the West Indies; and, on one of her sisters remonstrating with her against suffering him to exercise such influence over her, and taking such liberties in her house, she replied, that she was indebted to him, and if she did not act as he wished, he would ruin her.
    In the spring of 1829, Mrs. Wilkie heard a conversation between defendants, on the subject of securing the debt by a mortgage, and the witness stated to him that the property belonged to the estate, to which he replied, that “it was no business of his.”
    Another witness (Mrs. Schirer) stated that she heard Barelli say that a sale of the estate was necessary, to put it in the power of the defendant, Sophia, and understood that the proceedings in equity were intended for that purpose.
    Mr. Kane, the clerk of the Commissioner, Mr. Hunt, examined on interrogatories, stated that Mr. Hunt, since dead, executed a deed'to defendant, Sophia, for the houses and lots purchased by her at the sale, and took her bond and mortgage of the premises for the credit part of the sales, but that no money was paid at the time; since the answer of Barelli, and not very long before the examination of the witness, he has discovered the bond and mortgage in his own possession, endorsed with the assignment of Mr. Hunt to defendant, Sophia, as the guardian of her children, but he does not state whether they were or were not delivered to her.
    There is no doubt that, on general principles, the estate purchased by defendant, Sophia, at the Commissioner’s sale, and mortgaged to secure the bond given for the credit portion of the sales, would in her hands be liable for the amount, notwithstanding it has never been .recorded. She has, however, subsequently mortgaged them to Barelli, to secure a debt due to him ; and the questions which arise, are : 1st. Whether, in point of fact, Barelli had notice of the existence of the prior mortgage at the time he took the mortgage to himself; and 2d. If he had, whether he must not be postponed until the former mortgage is satisfied.
    Barelli, in his answer, explicitly denies that he had notice of the prior mortgage, and this must be taken for granted until the contrary is shown by competent and conclusive evidence; but it *strikes me, that 0 no one, who will take the trouble to examine the facts of the case, can doubt that he has wilfully misrepresented the fact, or more charitably, that he has forgotten it. The whole management of the estate was confided to him by the administratrix, the defendant, Sophia, and so completely had he acquired her confidence, that she would do no act in relation to it without his concurrence. He made the inventory of the estate, received the debts due to the estate, and paid those against it. He alone attended and gave directions as to conducting the sales by the Commissioner, and paid the fees of the auctioneer. He received the deed from the Commissioner to defendant, Sophia, and paid his fees. When speaking on the subject of procuring a mortgage to secure the debt due to himself, he was told by the witness, Mrs. Wilkie, that the property belonged to the estate. He stated to the witness, Mrs. Schirer, that a sale of the estate was necessary to put it in the power of defendant, Sophia ; and I will not believe he was so worthless and faithless .an agent as to suffer himself to remain profoundly ignorant that a mortgage of the property to secure the purchase-money was a part of the terms of the sale. The mantle of charity is scarcely broad enough to hide the conclusion, which necessarily arises out of the combination of circumstances, that the transaction was too deeply laid to be easily forgotten.
    The defendant, Sophia, had become largely indebted to him, and it was but reasonable that he should desire to have it secured ; a mortgage on her undivided estate would not, perhaps, furnish a very ample security, besides the inconvenience of obtaining partition with the other parties; besides a sale under a decree in equity, at which she was to become the purchaser, would put the whole estate in her power, and she dare not refuse any proposition that he would make; and for what other purpose could a sale of the estate have been desired ? Not to meet demands against it, for they had been paid — not to provide for the wants of the minor children, for the estate remaining in her hands, as administratrix, would have been just as productive as if they were her own ; nor does it appear that there was any peculiar necessity for selling the whole estate on account of the plaintiff, Sophia C., unless indeed it was in her contemplation of her marriage with Barelli. And is it éxtraordinary that Barelli should have used the influence which he had acquired over this family, to induce them to do what he might suppose would effectually secure his demand against the mother ? *The bad faith which he practised in the delicate affair of his attentions to the plaintiff, 'Sophia C., L is pregnant proof that he was not wholly trustworthy. There can, I think, be but little doubt that he was better informed of the character and nature of the proceedings in equity than either the defendant, Sophia, or any of the family ; if he was not, he was not that diligent and faithful agent which defendant, Sophia, supposed. I conclude, therefore, that he did know that a mortgage of the estate to secure the price was a part of the terms of the sale, and that no money was paid by the defendant, Sophia, to the Commissioner, but the fees of office.
    Assuming, therefore, that Barelli had notice that the mortgage was a part of the terms of the sale, and that no part of the purchase-money was paid by defendant, Sophia, to the Commissioner, the question then arises, whether in law and equity the lien of his mortgage is to be postponed until the claims of the plaintiffs are satisfied, and to what extent. And here, again, I think there is but little room to doubt.
    The bond and mortgage given by defendant, Sophia, for the purchase-money to the Commissioner, were prescribed by the order, and constituted a part of the proceedings of the Court, and could not be cancelled by the Commissioner, but upon full satisfaction, or the order of the Court. But the Commissioner was, by the order of the Courtof May Term, 1829, directed to deliver and pay to defendant, Sophia, as the guardian of her minor children, their portions of the estate, whether the same should con-' sist of money or bonds, or both; and under this order, she was entitled to the possession of the bonds; and I apprehend that this would no more discharge the bond than if a creditor should confide the safe keeping of a bond to his debtor. Her appointment as guardian of her minor children, did not operate as a satisfaction of the bond and mortgage. It is true, that the debt to her wards on this account, became identified with her personal responsibility, but the mortgage was a higher security, which she was incapable of cancelling, as there was no other party capable of contracting about it. The defendant, Barelli, dealing with defendant, Sophia, with the knowledge that she was required to give the bond and mortgage, and had been appointed guardian of her children, was bound to know the trust resulting as a legal conclusion from the circumstances, and according to a familiar rule, he is bound by them; one dealing with *a trustee in relation to the trust property with a knowledge of the trust, assumes all the responsibilities of the trust. L
    There is another view which puts this matter beyond all controversy. The Act of 1191, 1 Faust, 21, under which the proceedings for partition were had, expressly provides, in all .cases, when lands are directed to be sold for the purpose of partition, they “shall stand pledged for the payment of the purchase-money;” and in my own administration of justice, when my attention has been called to the subject, I have always refused to require a mortgage from the purchaser, believing that the Act itself gave a better security than any mortgage that could be devised. It is a security which even the Court itself has no power to cancel. Defendant, Barelli, according to his own admissions, knew that the property mortgaged to him belonged to the estate of the intestate, and that it had been purchased by defendant, Sophia, at the sale by the Commissioner for partition ; and his ignorance, if he was indeed ignorant, that the law imposed a lien on it for the purchase-money, cannot help him. Of a part of the purchase, one-third was required to be paid in cash; and the Commissioner, in his report, has acknowledged the receipt of it, and states that he had paid it over to defendant, Sophia, on account of her wards, to the extent of her interest in it, and to the plaintiff, Sophia, her portion of the whole estate; and the question arises, whether the lien given by the Act extends also to the cash part of the sales.
    The case itself furnishes conclusive evidence that no money was ever, in fact, paid on account of the sales. Defendant, Sophia, was entitled, in her own right, to one-third of the proceeds, and.to five-sixths of the remaining two-thirds in right of her wards; and as to them, it would have been a mockery to pay the amount to the Commissioner, and to receive it back in the instant; the interchange of receipts between them was all that was rendered necessary by the occasion ; and it is not pretended in the report that the Commissioner received any money on account of plaintiff, Sophia. Divested of the mortgage, the case stands thus : — The estate was sold partly for cash, and partly on credit, but the cash part was never paid. Can the purchaser resist the lien created by the act, as to the cash part of the purchase ? I think not. It is true that the interchange of receipts between the Commissioner and defendant, Sophia, might, for most purposes, be regarded as a payment; but equity regards the substance, and not the form, of things, and will, to subserve *5*7(51 ^he PuvPoses °f justice, set up securities, which, in form, have -* been extinguished. The case of Sophia C. Messervey, is something different from that of the minor plaintiffs, of whom she is the guardian ad litem. The Commissioner states, in his report of January, 1830, that he, himself, had paid to. this plaintiff, her distributive share of the estate, real and personal. By what means this fact found its way into the report, or upon what circumstances it was founded, does not appear: but the case furnishes intrinsic evidence that the fact is not true; she avers most unequivocally that she has never received anything. The Commissioner, Hunt, never received a dollar on account of the sales beyond his fees of office, and two-thirds of the purchase-money was not then due ; and on the trial of this case, there has not been even a show of evidence, or a plausible argument in support of it; and the question is, whether she is bound by it.
    The judgment of a Court of competent jurisdiction, on a matter in issue, unquestionably concludes the parties ; and that this Court would, on a proper case, have had jurisdiction of the question, cannot admit of a doubt; and it only remains to be inquired, whether it was put in issue between the parties, and adjudged by the Court.
    The bill filed by the plaintiff, Sophia, in 1829, on which this report is founded, only prays for a sale of the estate, for partition ; and necessarily could not have put in issue the question, whether she had, or had not received her distributive share. The usual formula of referring the bill and answer to the Commissioner, and his report recommending the sale, followed ; and upon this was founded an order for the sale of the estate, real and personal, with directions as to the terms, and that the proceeds should be “ divided and distributed between the plaintiff and defendant, in the proportion of one-third to the defendant, Sophia Messervey, and two-thirds to be divided between the plaintiff, Sophia C. and her minor brothers and sisters and that the portions of the minors should be paid and delivered to their guardians, &c., &c. : and I apprehend that this order did not put in issue the payment, for the fund had not yet been realized; yet the Commissioner, in his report of the manner in which this order had been executed, states that he had received and paid her the whole of her distributive share of the estate. She never could have anticipated that the question of payment to her, could have been involved in a report *of his own actings and doings, in the execution of the orders of the Court; and ought not to be bound unless she had had L * an opportunity of controverting the fact, which does not follow from the order of sale, nor does it appear from the report itself, which appears on its face as a mere official ex -parte proceeding. But this is not all: the report concludes by merely recommending “that defendant should be discharged from her responsibility, as administratrix, and that she account, yearly, for the proceeds of the estate of her minor children ; and in confirming this report, effect only is given to the matters recommended by the Commissioner, and is not a sanction to the facts stated in it, having no relation to the matters adjudged ; the fact that the Commissioner had paid to the plaintiff her distributive share of the estate, has no possible connection with the liability of defendant, Sophia, as administratrix, or her accountability as her guardian, the only matters adjudged. I therefore conclude that the question is not res judicata, and that she is not concluded.
    It is therefore ordered and decreed, that the defendant, Sophia Messervey, do account before the Commissioner for the estate of her wards, the minor plaintiffs, distinguishing how much is due on account of the sales of the real, and how much on account of the personal estate ; and that he ascertain and report how much is due to the plaintiff, Sophia C. Messervey, distinguishing in like manner between the real and personal estate. And it is further ordered, that unless the defendant shall, within sixty days after the final order of the Court, on the matters of account, -and notice of this decree, pay to the Master or Commissioner of the Court, to abide the further order of the Court, what shall be ascertained to be due to the minor plaintiffs, on account of their distributive share of the real estate of their intestate father, with interest up to the time of payment, and also pay, to the plaintiff, Sophia C., what shall be likewise due to her on account of the said real estate, with interest as aforesaid, then the mortgage executed by the said Sophia Messervey, the defendant, to the said' defendant, Barelli, for the three story brick house and lot in Tradd Street, and the two story brick house situate on the east side of Meeting Street, and No. 120, more particularly described in the pleadings and the order of the Court of Common Pleas directing the sale for foreclosing the equity of redemption, and all the proceedings had thereon, be, and the same are hereby declared to be set aside, and vacated, and ^utterly null and void; and that the Commissioner or Master of r*K>ro Court, do thereupon proceed to sell the said houses and lots, if L both be necessary, after having given due notice thereof, for cash; and that he retain in his hands so much of the proceeds, subject to the order of the Court, as may be necessary to pay the sums ascertained to be due to the minor plaintiffs, on account of their interest aforesaid in the said real estate of the intestate; and that he likewise pay to plaintiff, Sophia C. Messervey, what may be found due to her on that account. If the proceeds are insufficient, then he will retain for the minors, in relative proportion with the said Sophia C., and pay her the balance. If the proceeds exceed the amount, he will pay the excess to defendant, Barelli, deducting therefrom the costs of this suit. In any event, the defendant, Barelli, must pay all costs.
    From this decree the defendant appeals, on the following grounds :
    First. — That the evidence of Barelli’s privity to the errors contained in the proceedings in equity, is too slight to overturn his solemn denial on oath; and submit, in opposition to the inference of his privity, the following considerations:
    1. That his agency in the commercial business of Mrs. Messervey, and in receiving and paying money for her, and in bidding for her at the sale, is a distinct thing from the management of her legal affairs, in which she was advised by her own counsel.
    2. That the proceedings in Chancery were, on the face of them, intended to vest the whole estate in her, on the security of her guardianship bond; and there was no proof that Barelli consulted her legal advisers, or had any notice that those proceedings were irregular.
    3. That the witnesses, Shirer and Wilkie, are mistaken in the evidence .which they gave; as will be proved by the acecounts between Barelli and Messervey, from which it appears, that in January, 1829, and so late as June, 1829, Sophia Messervey was indebted to Barelli in but a small sum, and that the heavy liabilities which she incurred to him, took place after January, 1830; and that the proposal of a mortgage came from Sophia Messervey at a subsequent period, and after the dissolution of his agency.
    4. That if these considerations are not sufficient to take off, altogether, the charge against the defendant, the Court should direct an issue upon the point of notice.
    ^Secondly. — That even supposing Barelli to be privy to the J deception practised on the Court, the plaintiff, Sophia C., has no title to relief, inasmuch as she consented to a report, declaring that she had received her full share of the real estate, sold by the Commissioner at her own request, to her mother ; and caused the said report to be confirmed ; and there is no evidence that the solicitors were employed or received their instructions from Barelli, or that the report was prepared at his instance, or with his knowledge.
    Thirdly — That under the orders made in this cause, Mrs.'Messervey being the payee, as guardian, of her own bonds, could release the mortgage ; and that the deception practised on the Court was confined to the fact of representing that she was guardian — in which there is no evidence of Barelli’s participation. •
    Fourthly. — That the parties in the suit, who were of full age, are responsible, and the solicitors and the Commissioner are accountable for the irregularities in the legal proceedings ; and that a decree against Barelli goes to charge a bona ficle creditor, upon doubtful evidence, of participation in a transaction for which the immediate parties are not called to account.
    Fifthly. — That even if Barelli should be held bound, by constructive or actual notice of the decree, to see whether there was not a mortgage to the Commissioner, such notice would bind him only as to five-sixths of $1,840, and the property in his hands should contribute only rateably with the rest of the real estate that ought to have been mortgaged.
    And lastly. — That the proceedings in Messervey v. Messervey, if void* or voidable, are so only as to the shares of the infants. And that the infants are not parties to the present bill. That the style in which the plaintiff, Sophia, chooses to sue, as on behalf of herself and brothers, is unmeaning, and can make no difference in the consideration of the Court, as to parties, and that the bill should be dismissed.
    
      Petigru and Lesesne, for appellant.
    
      Bice and Memminger, contra.
   Chancellor Harper

delivered the opinion of the Court.

The first ground of appeal relates to matters of fact, with respect to which we would very much incline to be governed by the *Chan- |-*ko0 cellor’s decision. Our own judgment on the evidence entirely L agrees with the Chancellor’s. The evidence is, that the defendant, Barelli, transacted not only the commercial business of Mrs. Messervey, but all her business affairs. The testimony of Mr. Shand shows distinctly that he did habitually consult her legal advisers, and that of course he transacted the business with the Commissioner ; and from her confidence in him, and the ascendancy which he seems to have obtained over her, the inference is hardly to be avoided, that he principally directed everything that was done. The evidence of the witnesses, Shirer and Wilkie, would only be important in considering whether the former decree and all the proceedings should not be set aside, as having been obtained by his fraud. And for this, I think there are strong grounds ; but the Chancellor has not come to this conclusion, nor in fact does the question appear to have been made before him, or by the bill.

With respect to the second ground of appeal, the confirmation of the Commissioner’s report, of his having paid to the plaintiff, Sophia C. Messervey, her share of the estate, was not an adjudication. When matters in issue are referred to the Master, and he reports upon them, and the report is confirmed, then the report is made the decree of the Court. But the fact of this payment was not referred to the Commissioner, or in any manner in issue. It was not a judicial, but an administrative order, which is always subject to the control of the Court — not intended to establish the fact of his having made the payment, but to approve of it if done, and to protect him in having made it. When a report of sales is made, can any one suppose that this is a judgment establishing the fact that the sales have been made ? It can at most amount to no more than the entry of satisfaction upon a judgment or decree, which the Court habitually vacates when it has been made by mistake, or there is any equity to require it. The payment was not in fact made. When we think of the relation in which the plaintiff then stood to the defendant, regarding him as her affianced husband, he must know very little of the *581] female disposition, who does not know that she trusted everything with implicit confidence to his direction. He, on his part, assumed the character of a husband; he would of course assume to act for her, nor have I any doubt but that the report and order were made by his procurement and direction. Shall he be permitted to take advantage *of them ? He was her agent, and his act might have bound her as to third persons, but he cannot claim his own act as being conclusive between himself and his principal.

Third. — Mrs. Messervey was not the guardian. The order of the Court was, that she should be appointed guardian, upon giving bond with sufficient security. This was never done, nor does it appear that letters of guardianship were issued. She therefore had no authority to release the mortgage, even if it had come into her possession. But the mortgage comes before the Court from the possession of the Commissioner, Mr. Hunt, and though an assignment appears endorsed on it, yet if it was not delivered, (which is to be inferred,) the assignment could operate nothing.

Fourth. — The defendant, Mrs. Messervey is responsible, and will be made so by the decree. If the plaintiffs had lost their security by the misconduct of the officers of Court, they might be made responsible.— But if the security be not lost — if the property is still legally bound to satisfy their claims, certainly they are not bound to have recourse to the officers in the first instance.

Firth. — I suppose that the fifth ground refers to the Commissioner’s report, of his having paid over to Sophia C. Messervey her share of the proceeds of the estate, by which she is thought to have been precluded from claiming any thing now. But I have already disposed of that report. Her share of the credit part of the sales is included in the bond, and in fact, I 'suppose, though the records seem to bear a different meaning, that the Commissioner only intended to report, that he had paid over to her, her share of the cash proceeds of the sale.

The Chancellor, however, directs the property in the hands of the defendant, to be made liable for all that shall be found due to the plaintiffs, on account of their shares of the real estate, including as well the part that was said to be received in cash, as the amount of the bond. If it depended on the mortgage merely, it would not be liable beyond the amount of the bond. This renders it necessary to decide on the effect of the Act of 1191, directing that when land is sold for partition, it shall stand pledged for the purchase-money. The Act provides, that the party may apply at his option to the Court of Equity or Common Pleas, for a writ of partition ; directs the manner of proceedings, and enacts, that “ if *582] it shall appear to the Court, that it would be more for the *interest of the parties that the same should be sold, then they shall direct a sale to be made on such credit, and on such terms as to them shall seem right, and the property so sold, shall stand pledged for the payment of the purchase-money.” The Act then goes on to provide, “that the judges of the respective Courts shall be, and they are hereby authorized from time to time, to make such rules and orders as may be necessary for the purpose of carrying the foregoing clause into effect.” It was urged, that this does not apply to sales made by the Commissioner or master. But in every case in which land is sold for partition under the authority of the Court of Equity, the sale is made by the Commissioner or master. I suppose it was intended that the act cannot apply when the sale is made on the recommendation of the Commissioner merely, no writ of partition having issued. But I do not perceive the grounds of this. The practice of making sales on the recommendation of the Commissioner, without the return of commissioners in partition, is one of doubtful propriety. Yet the act refers it to the Court, to determine on the expediency of a sale, and the Court of Equity would of course make the inquiry for this purpose through its accustomed officer. If there has been an irregularity in not having a previous return in partition, I do not perceive that this can deprive the parties of the benefit which the law expressly gives them.

As to the claim, that the property in the hands of the defendant, Barelli, should contribute only rateably with the rest of the real estate that ought to have been mortgaged — the defendant is entitled to more than that. He has a right to the benefit of his mortgage, as against his co-defendant, Mrs. Messervey. She purchased all the real estate, and mortgaged it all. Part was not included in her mortgage to Barelli, but remains as I understand in her own hands. She is directly the debtor, and this property should be first sold, and applied to the payment of plaintiffs’ demands. But if, as suggested, she had sold part of the property to a bona fide purchaser without notice, this could not deprive the plaintiffs of the right to be satisfied of the whole of their claims out of the property, in the hands of a purchaser with notice. For we cannot avoid agreeing with the presiding Chancellor, that Barelli was cognizant of the proceedings in equity; knew how every thing was arranged, and was the principal agent in making the arrangements.

The last ground is founded on a supposition, that the plaintiff, *has no case, and the infants not being properly made parties, the pggg bill must be dismissed. The infants were improperly made plain- L tiffs to the former bill for partition. Their interests were adversary to those of their co-defendant assuming to be their next friend. But if it were regular to do so, it would not benefit the defendants to vacate the proceedings as to them on that ground. They are properly plaintiffs to the present bill, for they have the cause of complaint. I do not say that they might not have sustained a bill by another friend, making their sister a defendant, and liable if they should fail to obtain satisfaction of the present defendants; but that is not the case before us. According to the view I have taken, she has a sufficient case, and right to relief. The infants are not formally and technically parties plaintiffs ; but the Court, if necessary, would permit that defect to be supplied. She has sued for herself, and in their behalf. It may be true, as argued by counsel, that none but a creditor or legatee, can sue on behalf of himself and others. But the objection must be taken in a proper time and manner.

The defendant’s demurrer to the bill, on which this question ought to have been made, has been overruled. He has answered to the bill of “ Sophia C. Messervey, for herself, and as a guardian ad litem of her brothers and sisters. ” He has taken no exception to this manner of suing by his answer, and must, therefore, be held to waive the objection.

The only modification which it appears necessary to make of the circuit decree is, that upon the coming in of the report upon the account directed to be taken, the defendant, Sophia Messervey, pay to the plaintiffs,'respectively, what shall be found due to them on account of her administration of their father’s estate, and the sales of the personal estate; and that the Commissioner, or Master, do, in the first instance, sell all the real property purchased by the said Sophia Messervey, and mortgaged to the Commissioner in Equity, which was not mortgaged by her to the defendant, Joseph A. Barelli, but remains in her hands, and apply the proceeds towards the satisfaction of the plaintiffs’ claims on account of their share of the proceeds of their deceased father’s real estate; and that he then proceed to sell the property in the hands of the defendant, or so much thereof as be necessary for the satisfaction of the plaintiffs’ said claims, in pursuance of the directions of the decree; and it is ordered and decreed accordingly.

Chancellors Johnson and Johnston, concurred.  