
    
      John W. Mobley ads. Com'r. in Equity, per Isaiah Mobley, Administrator.
    
    1. Land sold for partition under an order of the Court of Equity, and purchased by one of the heirs at law of the deceased owner. Before the date of the sale, by the commissioner, the purchaser paid to the husband of one of his co-distributees a sum of money, he, subsequently to the sale and during the life time of his wife, executing to the purchaser a release in consideration of the money paid, of all his right, title and interest, in the land so sold for partition. Afterwards the wife died, and another of the heirs at law having administered on her estate instituted an action on the bond given to the commissioner, against the purchaser, for the purpose of ascertaining the validity of the payment made to the husband of his intestate, the bond being admitted to have been paid by all parties, except as to the share originally coming to the deceased wife.
    2. The order of the Court of Equity directing the sale and the taking of bond for the purchase money, contained no direction to distribute the funds; and no such order had been made. And there being no transfer of the legal right of the commissioner, or even of his possession, it was held, that this Court would disregard payments made to, or assignments made by, persons not clothed with his legal rights.
    3. The case was a proper subject for the consideration of the Court of Equity.
    
      Before Butler, J. Chester, Spring Term, 1844.
    Edward Mobley, at his daath, April 10th, A. D. 1839, among other property, left a large tract of land on Sandy river, in Chester district. He left a widow surviving, Mary Mobley, and nine children, Susan Tolliver, Samuel W. Mobley, Isaiah Mobley, Lesialla Atkinson, Edward Mobley, David Mobley, Biggers Mobley, John W. Mobley, Mary Griffin.
    In October, 1841, the land on Sandy river was sold under proceedings for partition between all the heirs at law of Edward Mobley, deceased. John W. Mobley became the purchaser, for $12,416, and gave his bond to James Hemphill, Commissioner of the Co'urt of Equity for Chester district, in the penal sum-, conditioned for the payment of $4,142 39, and interest thereon, on the 4th October, 1842, interest due from October 4th, 1841 ; also for the further payment of $4,142 39, on 4th October, 1843, and interest from 4th October, 1841.
    On the 14th December, 1839, John W. Mobley paid, as by a receipt or assignment, a copy of which is hereto annexed, the sum of $1220, to Leroy Griffin, of Georgia, husband of Mary Griffin, one of the distributees of Edward Mobley, deceased.
    On-day of December, 1842, Mary Griffin died, and Isaiah Mobley took out letters of administration on the estate of Mary Griffin, deceased.
    The bond in suit is considered paid, by admission of all parties, except the share originally coming to Mary Griffin. To decide whether the payment to Leroy Griffin, the hus-’ band of Mary Griffin, was a good payment, this suit was instituted on the bond, for the benefit of Isaiah Mobley, administrator of Mary Griffin, deceased.
    Mrs. Susan Tolliver heard Mary Griffin, in her life time, say that defendant had paid her share of the money coming to her from sale of her father’s land ; that the calculation was made at defendant’s house in the presence of Mrs. Mary Griffin.
    “Ti-xe State of South Caholina, Chester District.
    
    Know all men by these presents, that I, Leroy Griffin, of DeKalb county, Georgia, in consideration of twelve hundred and twenty dollars to me paid by John W. Mobley, of Chester district, South Carolina, have executed, bargained, sold and released, and by these presents do grant, bargain, sell and release, unto the said John W. Mobley, all my right, title and interest in the piece of a certain tract of land lying on the waters of Sandy river, containing twelve hundred and thirty-four acres, lately sold by the Commissioner in Equity, for Chester district, and State aforesaid; as land belonging to the estate of Edward Mobley, deceased ; and I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend, all and singular my proportionate part in the said premises unto the said John W. Mobley, his heirs and assigns, against myself and my heirs, and against every person whomsoever, lawfully claiming or to claim the same, or any part thereof
    
    Witness my hand and seal, this the 13th day of December, in the year of our Lbi’d, one thousand eight hundred and forty-one, and in the sixty-sixth year of the independence of the United States of America!
    LEROY GRIFFIN, [L. S. ]
    JNO. J. D. BARRON.
    JUDAH BENNETT.
    
      Opinion of the Presiding Judge.
    
    In the presence of one or two witnesses, Mrs. Griffin said that defendant had paid her share of the bond at too great a discount; and from defendant’s own admission, as well as what others said, he had paid the amount at a discount of from 10 to 30 per cent. This circumstance should not, perhaps, alter the true character of the legal question involved in the case — which is this ; can the husband, during coverture, assign the chose in action of the wife, arising from the sale of her real estate, without her joining in the assignment'? Looking to the adjudications on this point that have been made in the Court of Equity, I came to the conclusion that such an assignment of the husband alone, would not be good, and therefore decided that the payment made in this case was not a good one. Under this view of the case, a verdict was found for the plaintiff.
    The defendant appealed; and moved the Court of Appeals for a new trial, on the following grounds?
    1. Because the payment to Leroy Griffin was, under the circumstances, a good payment on the bond.
    2. Because the assignment by Leroy Griffin, for valuable consideration, to the defendant, of his (Leroy Griffin) wife’s interest in the bond sued, was effectual and operative as an extinguishment of the bond, pro tanto.
    
    3. Because the verdict was contrary to law and evidence.
    
      Boyce, for the motion,
    cited Clancy, 345, 353; Rop. on Husband and Wife, 150 ; Law Lib. 49, 141,' 150; 3 P. Wms. 197; 12 Ves. 472 ;■ 3 Russ. 91.
    
      Gregg, contra,
    cited 2 Hill Ch. Rep. 644, 651 ; 3 Hill, 197; Dudley’s Eq. 55; Cheves Eq. 62.
   Curia, per

Wardlaw, J.

The bond is for the payment of money only; it is payable to the plaintiff, the Commissioner in Equity. And no transfer of his legal right, or so far as this court is informed, even of his possession, has been made. The order of the Court of Equity which directed the sale of the land and taking of the bond contained no direction for distribution of the funds ; and no such directions have since been given by that court. It is clear then in this case, that this court must do, what perhaps it would do in every case where there has been no actual assignment of the legal interest of the obligee or authority from him, disregard payments made to, or assignments made by, persons not clothed with his rights. It will thus be left to the Court of Equity to direct its own affairs, and finally decide its own cases; to say what influence the acts of the parties shall have over a fund in possession of that Court, and to exercise its discretion as to the mode in which the wife’s interest in money, arising from sale of her lands, made by order of that court, shall be protected; and as to the effect which shall be given to the husband’s assignment of the wife’s interest in a fund which an officer of that court is to receive for distribution. The motion is therefore dismissed.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  