
    Cruger, Administrator of Charles Murray vs. Daniel.
    Heard before Chancellor J. Johnston, Charleston, on the 21st, 22d, 23d and 24th days of January, 1835.
    David Murray, of Savannah, was possessed of a plantation on Savannah River, in Saint Peter’s parish, in South Carolina, called Nelvilie, which, by a deed, dated 10th February, 1770, he conveyed to his brother, i ffiarles Murray, for 2000 years, as a mortgage, to secure a bond, conditioned for the payment of £1000, sterling, at the Royal Exchange in Ltndon, on the 1st day of February, 1771, with interest at five per cent., subject to a prior mortgage of the same date to John Murray. The deed is regularly recorded in the Register’s office in Charleston, 10th May, 1770
    David Murray, by his will, dated 17th February, 1770, devised Nelvilie to his daughter Charles, and named his wife, Lucia Murray, his brothers John Murray and Charles Murray, and his friends, John Graham, William Telfair, and Edward Telfair, executors. William Telfair proved the will before Sir James Wright, in Geori gia, 3d January, 1,771, and a copy is filed in the Secretary’s office in Charleston, but nothing more. No letters testamentary nor probate, from South Carolina.
    John Murray and John Graham, were attainted by the confis--cation act of 1778, in Georgia, Wiliiam Telfair adhered to the mother country, and left Georgia, during the war. Charles Murray was abroad during the whole of the revolution. See Wat. Dig. 379.
    The testator’s daughter Charles,, married Thomas Washington, and by deed, dated 18th September, 1783, recorded in the Register’s office in Charleston, on the 9th October following, Thomas Washington and wife, conveyed Nelville to William Pierce, Anthony Walton White, and Richard Call, in fee simple, in consideration of £0400
    Richard Call, the same day,, executed a bond to Washington, in £6400 penalty, and the said bond, after reciting the conveyance from Washington and wife, of the plantation Nelville, proceeds to state, that it had been mortgaged by David Murray to Charles Murray, oí Madeira, for £1000 and that Washington had left and deposited in the hands of Pierce, White, and Call, or one of them, the sum of 1500 guineas, part of the consideration money, and that they, Pierce, White, and Call, had agreed to pay off the mortgage. 'I herefore, ihe condition of the bond is, that they shall, by the 1st of January, then next, take up the said bond of David Murray to Charles Murray, and indemnity Washington, and the estate of Murray against it.
    Pierce, White, and Call, by deeds of lease and release, dated I5tc a .ri 16¡h >■* eptember, 1783, in consideration of £5144, sold the san e plantation to Leonard Cecil, which deed was duly recorded on 9th October following, in the Register’s office in Charleston. Leonard Cecil, by deeds of lease and release dated 30th and 31st March, and recorded in Charleston, on the 19,h April, 1784. in consideration of £5144, conveyed the same plantation to John Feme ; and Mrs. Harriet Cecil renounced her dower'before commissioners appointed by a dedimus under the seal of the court, and the hand of J. F. Grimke.
    On the 24th September, 1783, Thomas Washington, by a letter to James Penman, the agent of Mr. Murray, informed him that the bond of John Murray was paid, and that Charles Murray’s bond was to be paid to him by Pierce, White, and Call, to whom he had disposed of the land under that incumbrance.
    Thomas Washington, writing to Charles Murray, on 7th April, 1788, informed him that he had delivered to Mr. Penman all the papers he had in relation to Nelville. That he had sold, for the express purpose of paying off his mortgage ; and-taken a defeazance, bearing equal date with the conveyance, whereby he had made himself secure, a.td done justice by Mr. Murray.
    On 'the !5th March, 1787, Edward Penman, who was the altor- . ney of Charles Murray, then residing at Madeira, caused a bill to be filed in the Court of Equity in Charleston, for Challes Murray, and in his name, against Thomas Washington, Charles his wife, and Edward Telfair; andón the 16th April following, the court granted an order for the defendants, residents in Georgia, to answór' in three months. On the 21st December following, the bill was ordered to stand over, and John Ferrie to he made a party. The bill states, that the bond and mortgage were unpaid, and sets forth the several sales before mentioned, and prays a foreclosure.
    The consideration of the conveyance of Nelville to John Ferrie, was.a debt due by •Pierce, White, and Call, to Ranks and Company, in'which house, Ferrie was a partner ; and, on a settlement, of the partnership, a large sum had been stated, as the profits of the concern, and the debt of Pierce, White, and Call, had been assigned . to Ferrie, as part of his share of profit, and the partnership of Banks and Company dissolved. But the executors of General Greene, who, by guaranteeing certain contracts of Banks and Company, had become a creditor of the concern — filed a bill against Banks and Ferrie for an account of the assets of Banks and Company, and to make Nelville in the hands of Ferrie, liable to the partnership debts. The bill, answers, exhibits, and all the proceed, ings in the case of Greene vs. Ferrie, are lost.
    In Murray vs. Washington, the bill is preserved, and several papers within it; among the rest, copies of the agreement between Pierce, White, and Call, and Washington,Tor the payment of Ghas. Murray’s mortgage, but no proof of service of process of any kind,nor of publication, nor of the bill being taken pro confesso, nor of defendants having appeared.
    The docket and the decree book show that the case of Murray vs. Washington, for the foreclosure of the mortgage of Nelville ; and the case of Greene vs. Ferrie, for the sale of Nelville, to-pay the partnership debts of Banks and Company, were brought on together. And on the 24th June, 1788, the following orders were made, viz-: •
    Murray vs. Washington. “ Decreed, that the land, in bill mentioned, be sold by the master, on a credit of one, two, and three years, moneys for the purchase,- subject to the further order of the court.”
    Greene vs. Ferrie. “ Decreed, that the plantation Nelville, mentioned in bill, be sold by the master, on a credit of one, two, and three years, with interest, on bonds, with approved security, to re-mam and be subject to the future order of the court, and that the defendant Ferrie, join in the conveyance of the premises. That an account be taken by the master, of the profits on the goods purchased by Banks of Harris and Blacklock, Newcomen and Col-let, Warrington and McWhan. Also, of the balance still due on those purchases, and of what General Greene and his representatives have received towards satisfaction of the guarantee entered into by him, as in bill mentioned.”
    Greene vs. Ferrie. On the 19th December following, it was-ordered, that the sale of Nelville should be according to the terms of the instalment law.
    In June, 1789, Mr. Gibbes reported, that he had sold Nelville, on-the 11th February preceding, to Edward Penman and Adam Tun--Bo, for £4146,15 ; andón the 26th day of the samo month, this report was confirmed.
    26th June, 1790.. The court proceeded to make a final decree in the two causes, in which after reciting the former orders arid re. ports, and that no account had yet been had of the profits made by Banks and Company, and that it was uncertain it such an account could ever be had — Decreed, “That after applying such part of the securities, as shall be sufficient for that purpose, towards satisfying the mortgage money alleged to be due from David Murray to Charles Murray, and subject to which, the defendant Ferries purchased the said plantation : Also, after payment of the costs of this suit, the master deliver into the hands of the executors of General Greene, the remainder of the securities for which the said plantation was sold ; and that the said Ferric be discharged from any further claim of the complainants, on account of the said speculation. unless it shall appear, from the return of the commissioner, that the goods of the Charleston sacculation, sold for less than prime cost; in which case, the said Feme shall be obliged, and he is hereby decreed, lo pay to the complainants one third part of said deficiency, in conformity with his agreement with John Banks, on 22d October, 1782.” See 1 De S. 174.
    Penman and Tunno did not complv with the terms of sale. No further pr iceedi; gs appear to have been had in the cases.
    Jumes Duff, soon afterwards appointed an agent in this country, to prosecute his claims to Nelville, under a title adverse to David Murray Washington was executed in the year 1701. His widow never took possession, nor entered on the land, it does not appear in the evidence, when she died. Charles Murray died in the tear 1809, and his son, Charles Scott Murray, sent a power of attorney to Adam'Tumio. Adam Tunno paid the direct tax ior Nelville, in 1808. And in 1812, he claimed the possession for Charles Scott Murray from General Huger, who owned the ad. joining plantation, and who had thrown up a line bank which encroached on 1-:eiv-llt', and which, on the representations of Mr, Tuuno's agent, he withdrew. The possession of Nelville was vacant, until the year 1823, when James Rose and John Rutledge, took possession, with Mr. Tunno’s consent, who claimed the land for Challes Scoff Murray, but told them the title was disputed.
    Louisa Omones, the daughter of Mrs. Washington, claimed, and sometimes exercised, such acts of ownership on Nelville, as may he exercised over land in a state of nature. There was no house — . no cultivation — a new growth covered the old fields, and the ditches were filled up. She died in 1822< A man called Mallory, was said to be her husband. He died, and his heirs claimed the land.
    In 1825, Mr. Rose heard of Mallory’s claim, and wrote to his overseer, to prevent any trespass on the land, as lie held, for the agent of the proprietor in England, and in February, 1826, he took a lease from Tunno and Higham, as the agents of Duff and Murray ; who agreed to join in the lease, and refer thoir titles to the examination of an arbiter.
    In 1825, Dr. Daniel made a contract with William Mallory, onp of the heirs of Hamlin Mallory, to purchase their right to thif plantation for $3,000. The contract was verbal, and the first evidence of it is the following memorandum :
    “ Received, Savannah, 13th October, 1825, of W. C. Daniel, $351.68, in part payment, for the purchase of Nelville plantation, as stated in a former receipt of $30. Wna. Mallory. Witnessed by Henry Holland.”
    He caused a bill to be filed in the name of Mallory, against the oo-heirs of Hamlin Mallory, for a partition, and took possession in the fall of 1826, Mr. Rose indicted him, and his overseer, for a forcible entry, and in November, 1827, they came to the following agreement:
    “ The State vs, Neil Culbreth and W. C. Daniel. Indictment for forcible entry and detainer. It is agreed on the part of James Rose, prosecuter, and W D. Martin, attorney, for defendants,—
    First. That the indictment is abandoned.
    Secondly. That defendants abandon possession of the knoll, of which they now have possession, as also, the seven acres cultiva-ied this year, on the N. E. and such as is comprised by an avenue' and ditch, supposed to be about seventy acres, on or before the 15th January next, with the privilege of removing to another knoll, on or near which, is the corner between Judge Huger, an.; land lately owned by Mr. Cruger, and to take with them all the timber, buildings, &c.
    Third. That defendants are to retain possession of fourteen acres, lying between the kuoll, on which the settlement now stands, and Judge Huger, which fourteen acres were cultivated this year, by said defendants.
    Fourth. Neither party are to interfere with the possession or use of the other, in the premises above described, or in such possession, as either may assume, in clearing land on the Nelville tract, until the trial of the action at law, about to be instituted to try the title, and the possession agreed on is to be without prejudice to either party.”
    In the case of Mallory vs. Mallory, at Coosawhatchie. there was a decree for a sale, but ail the proceedings in that case are lost. At the sale, Mr Tuuno gave notice of hts claim and possession. Dr. Daniel was declared the purchaser, at $1190, and Mr. Joyner made a deed to him. He brought'an action ol trespass, to try title against the tenants, James Rose and John Rutledge. On a comparison of titles, Mr Duff' abandoned his claim. Administration of the estate of Charles Murray, was granted to the complainant, who administered at the request of Mr- Tunno, and filed this bill for fort closure of the mortgage of D. Murray to Charles Murray, attd injunction against proceedings at law. The injunction was granted, but at January term, 1634, dissolved by the consent of complainant.
    Th bill sets forth the termer proceedings in Murray vs. Washington, and Greene vs Ferrie — Alleges, that the bond and mortgage have been lost, and that there are doubts, whether, under the act of assembly, a mortgagee in possession, can defend an action of trespass to try title — -That defendant purchased, with notice of complainant’s title,- and of the possession of Rose and Rutledge, and prays that the deci’ee in Murray vs, Washington, may be carried into effect — and that the defendant may redeem, or be foreclosed.
    After exceptions to the answer had been sustained, the further answer was referred on the old exceptions,- but no further order was made.
    DECREE.
    Without the assistance of the decrees pronounced in the cases of Murray vs. Telfair, et. al., and Green vs. Feme, it will not bs pretended, but that the plaintiff’s claims on the bond and mortgage, are too stale to admit of their being sustained. The presumption of law is, that the bond has long since been paid, and the mortgage satisfied.
    If we put these decrees out of view, then the mortgage being executed before the act of 1701, vested a legal title in the plaintiff’s intestate, for the term of two thousand years, subject merely to the equity of redemption. Li then the bond has not been paid, the right of redemption is barred, and the conveyance is not only legal, but indefeasable. If, on the other hand, the bond has been paid, then the plaintiff, so far from having a right to come here for relief, is bound to re-convey what he holds under the mortgage. So that if the bond has not been paid, the plaintiff has a remedy at law to recover possession of Neiville, without any danger of being brought into equity under an opposing- right, to redeem ; that having long since been barred; and if the bond has been paid, the plaintiff has no right to claim the aid of either law or equity.
    But if we take the decrees, to which 1 have referred, into con. federation, how will they assist the plaintiff?
    First, they destroy all prit ity,from the time they were pronounced, between the mortgagee, Charles Murray, and the heirs of D.svid Murray, the mortgager, and thereby extinguish th.it privity between the plaintiff and the defendant, which is the main hinge oí plaintiff’s claim here. The sale ordered and made, effectually made the heirs of David, thenceforth, strangers to the laud, and to the mortgager ; leaving no privity between them, whatever, as to the land ; suhsti. tuting in its stead, a mere right on their part, to compel the purchaser to complete his purchase, and to claim whatever balance might be left from the price, after payment of the claims provided for its the decrees. To prove this, suppose they had entered oa Tunno, could he not have ejected them ? Could he have conjured up the semblance of a fiduciary relation between him and them, under which he could have dragged-them into this court?
    Then from the date of the sale, the title of Charles Murray, coupled with David’s equity of redemption, being the whole title which was vested in the purchaser, and any title which David’s heirs might choose, subsequently to convey, would be as distinct from each other, and the grantees would be as perfectly strangers to each other, as any titles or grantees could be. An action at law would constitute the only test of their relative strength.
    
      •This, 1 say, would be the result, even if David’s heirs, or their then alienees, had beet) parties to the decrees referred to ; of which, I am not satisfied. And if they were not parties then the decrees ¡must be struck out of view ; the result of w hich, I have already stated.
    But it is said Tunno did not take titles, or complete his purchase. What then ? There was a joint and several right in Charles Murray, and all whose claims were provided for in the decrees, as well as in the heirs of David Murray, who had a claim for whatever ba. lance, if any, of the avails should be left, to compel Tunno to take titles, and pay the price ; and if Charles Murray chose to forego bis right, did that give him the right, without consulting the other heirsi to annul the decree, and the sale, discharge the purchaser, and set up a claim for another decree ; a decree, which, while it would give him no more than was giver, by that which he had voluntarily waived, must, in some respects, injure the heirs, since it might not only throw them on a new and more insufficient purchaser for their balance, hut might much diminish, if not destroy', that balance.
    It is said that Tunno had ground to doubt the title; and, therefore, the plaintiff is not to be injured by his failing to complete his purchase. Be it so, are the heirs to be injured any more than- the plaintiff 1
    If the heirs of David, in whom was only the equity to redeem, and not Charles, in whom was the legal title, was bound to clear up Tunuo’s doubts, did Tunno ever inform them that he entertained any doubts, or the grounds of them ? Never.
    Were they to have him released from his purchase without their consent? To be made responsible at this late day, without a whisper of notice? And that on the ground of doubts, of which tin y were neither apprised, nor afforded an opportunity to clear them up ?
    Besides, it does not appear, that Tunno had any substantial grounds of apprehension. And if he had, there were ample means to have cleared them up long ago If Charles Murray had the right, which the plaintiff now asserts, to convert him into an agent, instead of a purchaser, of the land, all that he had to do, was to have taken possession, and let Duff put his claim to the test. Instead of this, the whole difficulty was ieft unknown to the heirs; forty years are allowed to roll around, without trying Duff’s claim ; and when at last, it was abandoned as spurious, the heirs are to bo made to bear the loss, arising from the lands being left idle, while the interest on the debt'was steadily accumulating. Where is the justice in this ?
    Again — Tunno made the purchase. It was reported and confirmed, without any objection, either from him or Charles Murray. Have the heirs of David released him from it ? It gave a fund to Charles to pay his debts. He became quasi Tunno’s. creditor for it, with a right, (at most he could pretend to no more,) to go on the heirs, in case of failure in Tunno to pay. Shall a creditor release a principal, and then go against the surety; and this, not only without the surety’s consent, but without notice of the release 1
    
    
      I am at a loss to know, for wliat the plaintiff conies here. Is it for a decree to foreclose ? Time and the old decrees have both foreclosed. Is it to have an order to sell ? "That, the old decrees gave, if the plaintiff relies on them ; and if not, theu his debt is presumed, from lapse of time, to be paid. Is it to com gol Tunno to take a title 1 Then sue Tunno. Is it that the plaintiff has not a title from the commissioner, receiving Tunno as having purchased, as agent of Charles Murray? Has.the commissioner refused to make a title ? Has Charles Murray paid the price ? Then go against the commissioner. But why does the plaintiff want ati-tie, if Charles Murray was the purchaser ? Has he not the mortgage, with the equity barred. Besides, this does not come within the scope of the bill..
    Without, therefore, going into the evidence, whether those from whom the defendant purchased, are the heirs of David Murray ; or whether or not, he had notice, when he purchased, or before he completed his purchase, l am of opinion there is enough in the case to show that the bill cannot be sustained.
    It is decreed, that the bill be dismissed.
    J. JOHNSTON.
    From this decree, the complainants appeal, and hope the same will he reversed, for the following, among other reasons :—
    1. That the court is bound to presume that the proceedings in Murray vs. Washington, were regular, and to give the decree its full force and operation.
    
      2. That the deeds which are offered in evidence, by the com-plaii'nnt, arc the very highest and t>est evidence; and that the secondary evidence is strictly within the rule as the best evidence which the nature of the case admits of; and is in support of original authentic documents and of the decrees of the court; and the whole of it should have been received.
    3. That Mr. Murray stands in the situation of a mortgagee, after foreclosure ; and no adverse possession, which vests the constructive possession in him ; and that the acts done by Mr. Tunno, as his agent, amount to an actual entry and possession under his title, « hich is thus fortified, and not weakened by the lapse of time.
    4. That by the deed of Washington and wife, to Pierce, White, and Gall, the possession of the wife was divested, and her interest turned into a right, wliicti, in 1791, when Washington died, was barred ; so that the statute of limitations, and lapse of time, so far from running in favor of defendant, are adverse to the title which he derives from the wife of Washington.
    5. That the jurisdiction of chancery is always mutual, and if, upon the case made by the pleadings and evidence, the heirs of Charles Washington would have a right to redeem ; the complain* ant, necessarily, has a right to call on them to redeem, or be foreclosed : and, that even, if they had no right to redeem, independent of the offer made by the bill, yet that offer gives thorn the right; and that it is against reason and authority, and a decision without a precedent, that a mortgagee, offering to be redeemed, should have bis bill, dismissed on the ground of the defendant having lost the right of redeeming.
    '6. That the attempt to make the defendant a bona fide purchaser for valuable consideration, without notice, has utterly failed. That neither the form nor substance of such a plea, has been adhered to in this case : and the very resort to such a defence in the manner attempted here, is convincing proof of the utter weakness and nullity of the defendant’s title ,■ and that he stands merely in the condition of one, who, for a trivial sum, has purchased the chance of a law suit, and employed the forms of a judicial sale, to give a color to a quit-claim, and cause the same to pass for something better than the assignment of a title taken on speculation.
   Chancellor Harper

delivered the opinion of the court.

We have no doubt, but that we must recognize the validity of the decree of 1790, and that it is conclusive as to every thing determined by it, on all who were parties to it, and their representatives and privies. We have no doubt either, but that every presumption is to be made in favor of the regularity of the proceedings of the court, and that we must take for granted that all persons were properly made parties, on whose rights as parties the decree purports to decide. This is the presumption in every case in rela. tion to the proceedings of courts — and more especially after so great a lapse of time, and with us, where records are so carelessly preserved. If we should require the production of every subpoena, with proof of service, or the proof of every order of publication to make parties, it would be to obliterate all the ancient proceedings of our courts.

The authority of the decree being acknowledged, it supercedes the necessity of determining some of the questions, which were pressed in argument. It establishes the execution of the mortgage from David to Charles Murray ; the amount due on the bond; the devise of the fee from David Murray to his daughter, Charles, (Mrs. Washington,) and the conveyances by which it became vested in Feme.

I think, too, that there is such privity between the personal representative of Charles Murray, and the other parties to that decree, or their representatives or privies, as to sustain a bill for the purpose of carrying the former decree into execution. It is the common practice, and proper and necessary, that after a considerable lapse of time, a new bill must be filed to carry into effect the former decree. A decree for foreclosure, though the word is commonly used in our proceedings, and also in our act of 1791, in relation to mortgages, does not mean the same thing that it does in the English law. It does not mean that the title to the land shall be, thenceforth, irredeemably vested in the mortgagee, and make the mortgagor a stranger to the land. Our decreé is for a sale. The common course is, that the payment of the money due should be decreed Then a sale is, directed, and if the land should sell for less than the debt, the mortgagee may have execution tor the residue. If it sell for more, the mortgagor is entitled to the sur" plus. And this does not depend on the act of 1791, providing for the sale of mortgaged land. That act applies exclusively to the proceeding in the courts of law. Courts of Equity pursue this course, and we have evidence in the decree before us, that such was the practice before the act of 1791, and I have no doubt, that for this purpose it is immaterial, whether the mortgage were executed before, or after the act.

Notwithstanding a decree for foreclosure then, both parties have equities to enforce, and may come into court for the purpose, and, alter a considerable lapse of time, must come by a new bill. And for this purpose, it is immaterial, whether the party has or has not possession oi the land. The mortgagee, if out of possession, has a right to come for a sale of the land that he may have his debt. If in possession, that the land may be sold, and if it should not pro» duce enough to satisfy the debt, that he may have execution for the residue. So the mortgagor, if out of possession, has a right to enforce a sale, that he may have the surplus if any.

These are the equities of the parties after a decree for foreclo» sure ; but what effect will they have on the present case ? Sup» posing the complainant to be in possession of the land, he has a right to come for a sale, and if the land should not bring enough to pay the debt, to have a decree for the balance. But if he comes for this purpose, the personal representative of David Murray, is a necessary party. It is against him alone that he can have such a decree. Or perhaps in order that his title might be unincum-bered, he might waive his claim to a decree for the money and make parties the heirs of David Murray, if they were entitled to the surplus. He claims and states himself to be in possession. But suppose him out of possession, he has a clear right to come for a sale to satisfy his debt. But he must make the proper parties— those who would be entitled to the surplus, or who have the fee of the land. The heirs of Mrs. Washington, it is supposed, were these parties, and that since the sale and conveyance to the defend, ant, be is invested with all their rights in relation to the land, and is the only proper party.

Petigrtj & Lesesne, for motion.

Hunt and Grisike, contra.

Filed 21st March, 1837.

But as I have said, and as the complainant haa contended, wo must give full faith and credit to the decree of 1790. We must take for granted that Mrs. Washington was properly made a party to it. Then that decree establishes the fee of the land to be in Ferrie — it directs him to join in the conveyance and directs the surplus of the sales to be paid to the representatives of Gen. Greene on account of his liability. These then, are «lie only parties who have the fee, or who have any title to the surplus. But it is said, that the conveyance of Washington and wife, to Pierce, White and Call, the mesne conveyances to Ferrie, shew that Mrs. Washington did not renounce her inheritance. But you cannot aver against a decree. Is there any doubt of that ? It must bind all parties to it and their privies, while it stands unreversed on the record. The interests of married women are daily bound by decrees to which they are paries. If there are grounds to avoid the decree, it must be by some proceeding on the part of Mrs. Washington, or those representing her. Besides, the act of 1731, does not require the wife's.renunciation of inheritance to be indorsed on the deed. It requires the acknowledgment, certified by the judge, to be recorded in the office of Pleas. On the same ground, that Í presume the regularity of the other proceedings in the case, ought I not to presume, that this record, has been lost or destroyed by accident, and the lapse of time. It is not even stated, that the office has been examined. The proper parties not being before the court, the only party made having no interest, the bill must of course be dismissed.

The decree is affirmed.

WILLIAM HARPER.

We concur,

DAVID JOHNSON,

J. JOHNSTON.  