
    
      Bank of the State of South Carolina v. Rose, Campell, et al. Rose et al. v. the Bank of the State of South Carolina.
    
    At the hearing of a report, the practice is, that the Court hear no evidence but what was before the Master, and reported by him as evidence upon which Ms report is founded.
    Where an appeal is taken from the Master’s judgment, or report, no matter in point is to be considered by the Court, which was not before the Master; and his report must stand in ail particulars not excepted to.
    Where the Trustees of a company made a loan from the Bank, and mortgaged real estate of the company to secure its payment, and the Cashier of the Bank, by mistake, entered satisfaction on the record of the mortgage in the Register’s office, under Ms own seal, and the Bank proceeded at law and recovered judgment against the Trustees; the Court held the Cashier to be a competent witness to explain the mistake, and that the Trustees, standing in the posture of sureties, were entitled to the enforcement of the mortgage in exhonoration of their personal liabilities under the judgment.
    The instrument to estop a corporation, must be the deed of the corporation under its own proper seal; and if the deed of a third person is insisted on, as against the corporation, then his authority and agency must be established by the party claiming adversely.
    Where the equities of a party have been stirred in a suit, no acts of the other parties will be allowed to his injury, during the time the Court has under consideration the merits of the case. They and their assignees, intervening under them pendente lite, will be bound by the decree.
    Without proof of some understanding to the contrary, a note given to the Bank as a renewal is entitled to all the securities of the original note.
    The rule is, that when a mortgagor comes to redeem, he must pay, not only the mortgage debt, but all that is equitably due as incidental to that contract.
    
      Before Johnston, Ch. at Charleston, June, 1846.
    The original bill in this case was filed for the purpose of obtaining foreclosure, in the reverse order of their date and record, of two alleged mortgages of the lot and premises in Meeting-street, known as the Charleston New Theatre ; and it appeared, among many other things, that, on the 10th day' of July, 1835, the Grand Lodge of Ancient Free Masons of South Carolina, by deed poll duly executed, conveyed said lot and premises to Robert Wotherspoon, James Rose, Henry Gourdin, R. W. Cogdell, and William A. Carson, and the survivors and survivor of them, and the heirs of such survivor forever.
    
    On the 24th day of May, 1837, Robert Wotherspoon, JabíesRose, Henry Gourdin, and R. W. Cogdell, four of the five parties above named, executed a deed, by way of mortgage, of the said lot and premises, to the Bank of the State of South Carolina, to secure payment of a promissory note, and the renewals thereof, for 6,000 dollars, discounted by the Bank for them two days previous, and also, all other notes of similar character, and the renewals thereof, that might thereafter be discounted for them by the Bank. William A. Carson- did not join in the execution of this deed.
    On the 16th day of September, 1839, all the aforesaid parties — -namely, Wotherspoon, Rose, Gourdin, Cogdell and Carson, joined in a declaration by deed poll, setting forth that the 12,500 dollars consideration money paid by them to the Grand Lodge, had been advanced by the subscribers to the Charleston New Theatre Company ; and that the deed of bargain and sale by the Grand Lodge to them, was made with intent and upon the trust and confidence that they, and the survivors and survivor of them, and the heirs of such survivor, should hold the said lot to and for the use of the aforesaid subscribers, until they should obtain a charter of incorporation, and be made thereby capable in law to take and receive a conveyance of said lot, and then and thereupon to convey the same to such body corporate in fee.
    And the said subscribers having then become a body corporate, by the corporate name of “The Charleston New Theatre Company,” and thereby become capable and competent in lav/ to hold said lot and premises, — in consideration thereof, and of the trust aforesaid, and of the nominal consideration of five dollars, they, the said Trustees, in execution and performance of their trust, granted, bargained, sold and released the said lot and premises to said corporation, in fee simple, together with all and singulai the rights, members, hereditaments and appurtenances to said premises belonging ; and also, all their estate, interest, use, possession, reversion and reversions, remainder and remainders, covenants, rights, benefits, property, claims and demands whatsoever, in law or equity, of, in and to the same, and any and every part and parcel thereef. This deed does not mention or refer to the previous mortgage by a part of the grantors.
    
      On the 19th day of November, 1839, the corporation executed to the Bank a mortgage of the premises to secure the payment of six thousand five hundred dollars, loaned to them under the provisions of the Act of Assembly known as the Fire Loan Law. The mortgage is in conformity with the provisions and regulations of said law.
    On the 7th day of March, 1842, James B. Campbell became the purchaser of the premises at Sheriff’s sale, under an execution of Fi. Fa. against the corporation, and received from A. II. Brown, Esq., Sheriff, a conveyance of the same and of all the estate, right, title and interest of the “Charleston New Theatre Company,” in fee simple, under which he has held possession of the premises from that date. On the 18th day of November, 1843, the complainants in the first case filed their bill, and the cause was first heard on Circuit before Chancellor Johnston, March 1st, 1844.
    The defendant, James B. Campbell, neither admitted or denied the existence of the mortgage deed of May 24th, 1837, in the manner and form as set forth in the bill; but for the terms of the same, referred to the original deed itself, when it should be produced for inspection. But he altogether denied that it was then, or had been since his purchase, a valid subsisting security, and claimed that, if it ever did exist, it had been long since inlaw cancelled and annulled, and ought to be formally satisfied and discharged ; and insisted that the debt claimed to be secured by the mortgage, was a new and subsequent debt, for which the mortgage never was a security. And he relied upon the law of the land, prescribing the only order and manner in which mortgages shall be paid, and upon the circumstances and transactions between the parties, to show that the prior mortgage of May 24th, 1837, ought to be deemed to have been satisfied at the time of the fire loan mortgage. And especially did he rely upon the judicial opinion of his Honor Chancellor Dunkin, delivered upon this question in 1843, at the instance of the Bank of the State, and never overruled — that “ the necessity and propriety of the act” (satisfaction) “in order to have the” (fire) “loan effected, had been demonstrated.” And, “ that they” (the trustees) “ were not at liberty to insist that the entry of satisfaction by the Bank worked any injury to their just rights.” — (1 Spears’ Eq. Reps., 494.)
    On the first day’of April, 1844, after the hearing, the cashier of the Bank entered formal satisfaction of this mortgage upon the face of the record thereof. On the 23d day of November, 1844, the Bank recovered and entered judgment and execution in Common Pleas against Wotherspoon, Rose, Gourdin, Cogdell and Carson, for their debt, and on that day assigned the judgment for full value to Martin, Starr & Walter.
    On the same day, Messrs. Wotherspoon, Rose, Carson, Gourdin and Cogdell filed the cross bill in this cause, and afterwards appended to it an affidavit, “ that the mortgage was not assigned, as stated, to Martin, Starr & Walter, but on the contrary, they expressly stipulated that the mortgage should not be assigned to them.” The original mortgage had been delivered up to James B. Campbell, in whose possession it has ever since remained. On the 25th November, the Bank moved for leave to dismiss their bill on payment of costs. The motion was refused; and on the 29th day of November, his Honor Chancellor Johnston filed his circuit decree. On the 13th and 14th days of February, 1845, the cross bill was fully heard upon evidence and argument before his Honor Chancellor Dunkin, who, on the 27th day of May and 2d of June, 1845, made interlocutory orders, enjoining Martin, Starr & Walter from enforcing their execution — and on the 19th of January, 1846, filed a decree to the same effect. An appeal was taken from the circuit decree of Chancellor Johnston in the original cause, and heard on the 14th and 15th days of January, 1846.
    Under the orders of reference made in the circuit and appeal decrees, the Master reported as follows:
    
      To the Honorable the Chancellors of the said State:
    
    This case has been referred to me under the decree of Chancellor Johnston, and that of the Court of Appeals, to ascertain and report the amount due on both mortgages referred to in the proceedings.
    I respectfully report that the Bank of the State of South Carolina have established their claim under the fire loan, the particulars of which, including the premiums of insurance, with interest, will appear in schedule A, herewith filed, and I find that there is now due, of principal and interest, to the 19th inst., eleven thousand eight hundred and seventy-one dollars thirty-two one hundreths, ($11,871 32.)
    I further report, that the claim of Martin, Starr & Walter, as assignees of the judgment of the Bank of the State of South Carolina, against R. Wotherspoon, and the other trustees, has also been rendered to me duly attested, which claim, with interest to the 18th inst., amounts to twenty-one thous- and and ninety-six dollars sixty-seven one hundredths, ($21,-096 67); the particulars of which will appear in schedule B, which is herewith filed. This amount, however, has been obtained by computing interest on the whole judgment, in-eluding interest from the 23d November, 1844, when it should have been reckoned only on the principal of the debt, and I report the claim so corrected thus, viz:
    Note due 26th Sept., 1840 - $15,000 00
    Interest to 18 Feb., 1846, 5 years, 145d - 5,667 12
    Costs - - - - - - - 47 00
    Making the true amount - - $20,714 12
    Twenty thousand seven hundred and fourteen dollars twelve cents.
    I have taken the testimony of Mr. Furman, the Cashier of the Bank, and find that this note was the last renewal of that originally given by the trustees, secured by the mortgage of the 24th May, 1837; and there is appended to his testimony a statement showing how the several renewals of the note were paid.
    The testimony of Mr. Furman will also explain how the mistake occurred in the entry of satisfaction, on the record of the mortgage, in the office of the Register of Mesne Conveyances for Charleston District, (which testimony was received, subject to Mr. Campbell’s objection) showing clearly, that by an error of the Deputy Register, the book was opened at this mortgage, instead of quite a different one intended to be satisfied ; that the satisfaction was written by the Deputy Register, and executed hy Mr. Furman, without first reading the mortgage, to which it had reference.
    I beg leave also to annex copies of the correspondence and of the resolutions of the Bank connected with it, as explanatory of the terms on which Martin, Starr & Walter became the purchasers of the judgment before mentioned. This judgment was obtained the 23d November, 1844, and the assignment to Martin, Starr <fc Walter was made the same day. There is no proof that the mortgage of the trustees wás assigned to them with the judgment, and Mr. Campbell admits that the original mortgage is now in his possession. The following dates are deemed important to be noted:
    That the case was heard March 1st, 1844.
    The satisfaction entered on the record of the mortgage, April 1st, 1844.
    The motion before Chancellor Johnston to dismiss the bill, November 25th, 1844.
    And the decree of Chancellor Johnston, November 29th, 1844.
    I further report that the insurance was to secure both mortgages, and that the first insurance was by the Augusta Insurance Company, on $20,000; premium $700. Respectfully reported,
    (Signed) JAMES W. GRAY, Piled 2d March, 1846. Master in Equity.
    
    
      Exceptions of Jmnes B. Campbell, one of the defendants in this case, to the report of the Master, filed 2d March, 1846.
    1st. Because the payments by the Bank, for insurance premiums, were not made to secure the fire loan mortgage, (the valuation of the lot alone being twice the amount of that loan,) and were not authorized by the prior mortgage, but said premiums were advanced upon the personal credit of the makers of the note to the Bank, and not chargeable under either mortgage.
    2d. Because there is nothing due on the mortgage of May 24th, 1837. The satisfaction deed of the Bank by the cashier being conclusive upon that point, and the parol evidence of Mr. Furman, to contradict and. cancel the same, was inadmissible, and should have been rejected by the Master; and the witness himself was incompetent, by reason of interest.
    
    3d. Because, by the order of reference, the matter for the Master to inquire into, was an account of the debt due; and it appeared that pending this suit and subsequent to the hearing upon which the decree was made, satisfaction had been duly entered of record, under seal, discharging the lien of the mortgage, so fully that a subsequent purchaser would not be affected by it, and the production of such satisfaction was the highest evidence that could be afforded of the discharge of the mortgage, and also of the matter of account referred to the Master. That the satisfaction was, to all parties claiming adversely, a release, enuring to their benefit, and estopping the Bank from further proceedings; and if the Bank can have relief it must be upon new proceedings, wherein the grounds upon which the satisfaction deed is to be set aside, must be set forth ; and it being new matter, arising after the hearing and in no way brought out in the pleadings, the defendant has no means of availing himself of his answer to the same, to which he is entitled.
    4th. Because relief against fraud, accident and mistake, is a distinct ground of equitable jurisdiction, and must be exercised, according to the established practice of this Court, upon allegations charged; and the defendant has a right to his answer and an issue thereon; and it is essential, upon every principle of correct pleading and practice, that it should not be exercised collaterally, in disregard of the rules of evidence, which are the same in equity as at law.
    
      6th. Because if parol evidence were admissible for complainants, it was unsupported by circumstances, and altogether insufficient, in- this case, to set aside the deed of satisfaction, particularly as the satisfaction was fully authorized by the circumstances and presumptions of the case.
    6th. Because the note for $15,158, of which the present note for $15,000 is a renewal, was a new note, and not a renewal of the old note for $17,000, which was the last of the old notes secure^ by the mortgage; and said note for $17,000 was paid in money, and not by renewal, and the mortgage never was security for this new note.
    
      Copy note and receipt offered in evidence at the hearing before the Chancellor.
    
    $17,000. Charleston, March 5, 1838.
    Sixty-one days after date we promise to pay at the Bank of the State of South Carolina, to the order of George W. Logan, Secretary and Treasurer of the Charleston New Theatre, seventeen thousand dollars, for value received.
    R. WOTHERSPOON, m____ i „„ R. W. CoGDELL, I Jienewal on tt “ j QQQ J JbxENRY GOURDIN, James Rose, William A. Carson, Trustees for , New Theatre Co. now incorporated.
    
    
      Copy receipt indorsed on above note
    
    Received, thirteen thousand nine hundred and fifty dollars eleven one-hundredths, 21st Feb’ry, 1840. R. W. C. $13,950 11-100. Tr. (Teller.)
    Upon the report and exceptions the following Circuit decree was pronounced:
    Johnston, Ch. These cases come up again upon a report of Mr. Gray, one of the Masters, ascertaining the amount due on both the mortgages referred to in the pleadings..
    The Master also reports the amount due Martin, Starr <fc Walter, on the judgment assigned to them by the Bank, and referred to in the cross cause.
    In computing the amount due on the mortgages, the Master has included the sums advanced by the Bank as premiums for insuring the premises from fire, for the partiulars of which he refers to schedule A, accompanying his report. To this allowance on account of insurance, Mr. Campbell, the owner of the equity of redemption, has excepted, to the following effect :
    1st. That the insurance was not warranted by the mortgage of 1837, given by the trustees; because the note constituting the debt which the Bank intended to secure under the policy, was not taken under that mortgage, but upon the personal credit of the trustees, who drew it; and so was not covered by that mortgage; and
    2d. That the insurance was not warranted by the fire loan mortgage of 1839, because the value of the naked lot on which the theatre was built, was, itself, twice the amount of the sum ($6,500) loaned under that mortgage; and, therefore, did not require so large an insurance as was effected, ($10,-000,) nor authorize so large a premium ($500) as was advanced per annum.
    The first branch of this exception involves a matter of fact upon which the Master took testimony; and the evidence satisfied him, and satisfies the Court, that the note alluded to in the exception was not taken upon the mere personal credit of the drawers, but was a renewal of notes intended to be covered by the mortgage which they gave the Bank. That mortgage was, therefore, a good subsisting lien for the amount of that note; and the interest which the Bank had in the premises authorized the insurance which they effected.
    If this were otherwise, and it became necessary to consider the second branch of the exception, as I have stated it, (it is the first branch in the exception, as filed,) I do not see that any evidence was given or insisted on, at the reference, to show that the fact was as stated in the exception. I say nothing of the correspondence between Mr. Campbell and the Bank, at the time Martin, Starr & Walter purchased the judgment of the Bank through him. It is appended to the Master’s report, and certainly shows that the Bank stipulated for the payment of these expenditures for insurance by the purchasers of this judgment; and as I understand the reply of Mr. Campbell, acting as their agent, it concedes that they are referable to the fire loan mortgage, and are so to be paid by the purchasers. Certainly, according to the best opinion I can form upon this correspondence, Martin, Starr & Walter became liable for the premiums; and I suppose must have paid them to the Bank, when they took its assignment of the judgment; and if so, the real party against Mr. Campbell, on this exception, is not the Bank, but its assignee. But I decide nothing on this correspondence, because Mr. Campbell protests that he never intended to enter into such an engagement as I have supposed. I found myself, therefore, exclusively on the want of proof to support the fact stated in the exception.
    The policies of insurance were effected in the names of the mortgagors, and assigned to the Bank, who paid the premiums. Mr. Campbell, as the purchaser of the equity of redemption, is bound to redeem upon the same terms as the mortgagors to whose rights he has succeeded ; and the familiar rule is, that when the mortgagor comes to ’ redeem, he must pay not only the mortgage debt, but all that is equitaT bly due, or, at least, all that is equitably due as incidental to that contract. This disposes of the first and sixth exceptions of Mr. Campbell, which I accordingly overrule.
    His four remaining exceptions are founded upon the fact, that the Bank did not assign the prior mortgage with the judgment; and upon the further fact, that on the 1st of April 1844, (while the merits of this case were before me for adjudication, on a former occasion, and were still under consideration,) Mr. Furman, the Cashier of the Bank, endorsed a satisfaction, under his hand and seal, upon the registry copy of this mortgage. On this, Mr. Campbell contends this mortgage is extinguished; -while he admits that the judgment, including the same debt, is in full force against the trustees.
    Whatever has been decided in the prior proceedings in this cause, must be conclusive now. We are not to go back and re-examine points adjudicated. And, if any thing has been decided in this case, it is thálthe trustees, standing in the posture of sureties, are entitled to the enforcement of this mortgage, in exoneration of their personal liabilities under the judgment. It was for this reason the Court refused leave to the Bank to dismiss its bill: and it was for the same reason that it enjoined the judgment. It is true that the decree establishing this equity in the trustees, was not promulgated until 29th November, 1844; prior to which time the entry of satisfaction was made on the 'mortgage, and the judgment assigned to Martin, Starr & Walter; the satisfaction being endorsed the 1st of April, and the assignment the 23d of November, 1844. But the cause was heard the first of March, prior to either; and the merits were under consideration at the time these acts were done. The equities of the trustees were stirred in the suit; and not only the Bank, but her assignee, intervening under her, pendente lite, must be bound by the decree which followed; and neither could separate the mortgage from the judgment, (they standing to each other in the equitable relation of primary and secondary liens, or as principal and surety,) to the injury of the trustees. Neither the Bank nor its assignee, separately, or by any arrangement between them, would be permitted to enforce the judgment against the trustees, and, at the same, time deny them, or deprive them of, the benefit of the mortgage lien. To the extent of the loans made by the Bank at the instance of the trustees, the first mortgage and the judgment are securities for the same identical debt: satisfaction of one would be a satisfaction of the other, If no payment had been made of the debt at the time the judgment was assigned, (1 John. R. 580,) the assignment of the judgment operated to carry the mortgage with it; and if payments were made, to the same extern that they satisfied the mortgage, they satisfied the judgment also, and diminished the effect of the assignment of the latter.
    According to the foregoing views, then, while it would be a fraud on the trustees, to keep the judgment on foot against them, at the same time that the mortgage upon which they depended for their indemnity is extinguished, it would be equally a fraud on the assignees to have transferred to them, upon a full consideration, a judgment apparently open, but really extinguished by the entry of satisfaction on the mortgage.
    Mr. Campbell, as the owner of the equity of redemption, has the right to have his premises exonerated from the lien of the mortgage, if it has been really paid off; and in that case the fraud practised by the Bank on the assignees of the judgment, can be obviated by a decreg that the Bank make them compensation. But if no money was in fact paid, Mr. Campbell has no right to be exonerated, at the expense of a fraud on the trustees. But it is not pretended that any money was paid; and the evidence satisfactorily establishes that no fraud was intended, the entry of satisfaction having been made by mistake. The Master reports the testimony of Mr. Fur-man, to the effect that he called at the registry, for the purpose of entering satisfaction on an entirely different mortgage, and that this mortgage having, by some inadvertence, been presented to him by the register, instead of the other, he entered the satisfaction on it without looking into it. One of the exceptions objects to the competency of Mr. Furman, as an interested witness^ and to the competency of his testimony, even if he be disinterested. I am satisfied that he has no disqualifying interest; and that, as a disinterested witness, his testimony is competent; and surely it cannot be necessary to refer to authority on a point so plain, (5 John. R. 69, 71; 2 Bac. Ab, Evid. G. Sta. 794, 1260, 1261, and notes.) Then it is objected, in other exceptions, that if there be mistake in this matter, that it is not to be obviated collaterally, but only on bill filed for the purpose. It is said that the satisfaction entered is the deed of the Bank, which cannot be disregarded, but must be set aside. But the facts are misconceived, The deed of a corporation can only be known by its seal. But the satisfaction here is not under the seal of the Bank, nor does it so profess to be. It is under Mr. Fur-man’s seal.
    The strength of Mr. Campbell’s objection is that this is an actually existing technical release on the part of the Bank, which estops the Bank, while it subsists. But this is a mistake. The instrument to estop the Bank, must be the deed of the Bank, which it cannot be unless it is under the seal of the Bank. It is true, that on proof of authority to the agent to make the instrument and affix the Bank seal, the act of the agent may be attributed to the principal. The onus of showing this, however, lies on him who relies on the release. This shows that this is not an existing and formal estoppel to the Bank, as Mr. Campbell contends, but only capable of being made an estoppel by proper proof. The proof has not been given. The facts are the other way.
    Lastly, it is said in one of the exceptions that the entry would be sufficient to protect a subsequent purchaser, ignorant of the real state of facts, who bought depending on the endorsement upon the mortgage. But Mr. Campbell is not a subsequent purchaser; he bought subject to this very incumbrance, and should be subject to it, unless he can show it actually and fairly satisfied.
    These exceptions are overruled. It is ordered that Mr. Gray’s report be confirmed, and that, unless the defendant, James B. Campbell, do, in thirty days from the filing of this decree, pay off the sums therein found due on the mortgages, (of 1839 and 1837, referred to in the pleadings,) for principal, interest and insurance, the property mortgaged be sold by Mr. Gray, for cash, and possession delivered to the purchaser, and the proceeds applied to discharge the said demand; and, if there be any surplus, after paying the said demands, that the same be paid over to the said Campbell, as owner of the equity of redemption. But in case the purchase money do not suffice to pay off the said demands, then the rents and profits received by said Campbell, since the demand of possession made on him, the 31st of October, 1843, be applied to that purpose, and that Mr. Gray do take the account of said rents and profits for the benefit of the parties entitled to have the same so applied; and that the defendants, James Rose, Henry Gourdin, W. A. Carson and Richard W. Cogdell, do pay to Martin, Starr & Walter, so much of the debt as may be left unsatisfied by the sale of the mortgaged property, and be re-imbursed out of the rents and profits' aforesaid, so far as the same will go. That James B. Campbell do pay the costs iii the case of the Bank v. Rose and others; and that in the cross cause, Martin, Starr & Walter do pay the costs of the plaintiffs and their own, and that their co-defendants in that cause do pay, each, his.own costs.”
    
      Grounds of Appeal.
    
    1. Because the premiums of insurance were not advanced under the terms of the fire loan mortgage, nor authorized by the fire loan law, the valuation of the lot being twice the amount of the mortgage loan, as stated in the exceptions, and said valuation was in evidence, as stated in the exceptions, and his Honor, the Chancellor, was mistaken in assuming the contrary.
    2. Because the satisfaction deed by the Cashier was, in fact, the act of the Bank, the Cashier having a general power to make the same and bind the Bank; besides, it was in evidence in this case, that either the Cashier or President of the Bank would be authorized to enter satisfaction. And it is incompetent by parol evidence, and collaterally, without an issue made, to set aside said deed.
    3. Because the Cashier’s receipt, under seal, for payment in full of the debt, and his release and satisfaction, by deed, of the mortgage, is a complete estoppel to the Bank; and the parol evidence of the Cashier to set aside his own deed and discharge himself of money, which, in the most solemn manner known. to the law, he had charged himself with and acknowledged to have received, is clearly incompetent and inadmissible by reason of his interest, and his evidence- ought to be struck out.
    4. Because the decree, ordering the sale of the premises for cash, is in violation of the law of the land.
    5. Because the receipt in writing, of the Teller, on the old note of ‡ 17,000, for the sum of thirteen thousand nine hundred and fifty dollars 11-100, which was put in evidence at. the hearing before the Chancellor, is higher proof of the intention of the parties at the time than any parol evidence, and shows that it was not intended to renew, but to pay the old note; and the debts contracted subsequent to the fire loan, were new debts. And said receipt is conclusive as to the propriety of the satisfaction entered.
    6. Because the decree is, in other respects, contrary to Law and Equity.
    JAMES B. CAMPBELL, Appellant.
    
    
      P'etigru, for Appellees.
   Per Curiam.

Johnston, Ch.

It is asserted in the first ground of appeal, that certain facts, referred to in the exceptions and in the decree, were in evidence at the hearing of the report. The counsel should be aware, that at the hearing of a report, the practice is, that the Court hear no evidence but what was before the Master, and reported by him, as evidence, upon which his report is founded. I am not aware that any other evidence was offered or received, when the report in this case was heard, and no evidence, which appears to have been offered to the master, seems to establish the facts asserted.

The master did report evidence, however, very material to this ground of appeal, which the counsel has omitted in his brief. From motives of kindness, stated in the decree, I preferred to put my decision, respecting the premium for insurance, upon the absence of evidence, rather than upon the correspondence which led to the purchase of the judgment.— But, as I intimated in the decree, that correspondence, in my opinion, was conclusive of the question raised by the exceptions, both as to Mr. Campbell, and as to Martin. Starr, and Walter.

Mr. Campbell, in his first letter to the Bank, says: If the Bank of the State will accept from a purchaser, in cash, this day or to-morrow, the full amount of the above recovery, (the judgment,) and assign the same, and all the interest and demand, both in law and equity, therein, and substitute myself, as attorney and solicitor, on the. records, I am authorized to say, they shall receive the said amount in cash.

Upon the reception of this communication, the Bank “Resolved, that the proposition made to-day, by J. B. Campbell, to purchase the verdict obtained by the Bank against the Trustees of the Charleston New Theatre Company, cannot be accepted, in its present form — because there is no stipulation proposed that the mortgage to secure this shall be postponed, in its lien on the Theatre, to the mortgage held by the Bank, to secure the fire loan on the said theatre.

“Resolved, also, That in any sale or settlement of this debt, the Bank will require the purchaser to pay all insurances advanced by the Bank for the Theatre, with interest on the same, and also the payment of all costs, to which the Bank is liable, or may be made liable, in the several suits in law and equity decided or pending in regard to the Theatre, oh this debt.”

Mr. Campbell replies: “ I have received and submitted your resolutions of yesterday, .containing objections to the propositions of the same date, to the parties in whose behalf the proposition was made. They understand, that by the final decee of the appeal Court of Chancery, already pronounced, the fire-loan mortgage has precedence and priority over the mortgage executed by Wotherspoon et al. bearing date May 24th 1837 : and their offer to purchase is subject to this understanding. This, I apprehend, meets your views, and removes the first objection. The insurances, to which the second resolution refers, are covered, as understood, by the express terms of the fire-loan, and are secured by the mortgage to secure that bond. It is, therefore, intended to refer the payment of premiums advanced to that security, inasmuch as it does not pass to a purchaser of the judgment, by the.assignment of the Bank. In order to facilitate the recovery of the premiums of insurance advanced by the Bank, I will waive the six months notice on the fire-loan mortgage, to which I am entitled under the Act, and every, other obstacle to prevent the Bank from pressing the fire-loan mortgage, which may exist at any time; or, I will make any other arrangement to secure or pay the premium, which shall be agreeable and satisfactory to your President. The costs, to which the resolution also refers, will be discharged by the purchase of the judgment, as proposed by the resolution. This disposes of every objection to the proposition submitted through me, and I consider the matter closed ; and payment for the purchase of the judgment will be made this morning.”

On the reception of this last letter, the Bank closed the transaction, by accepting the proposition', as modified.

I deem it unnecessary to add a single word, by way of comment, on the evident meaning of this correspondence.— The second and third grounds of appeal are, in my conception, sufficiently answered in the decree. If the Bank was to be estopped, it must be by its own deed. The proposed estoppel was-not, on its face, the deed of the Bank. If the deed of a third person was insisted on, as against the Bank, then his authority and agency must be established. As that which Mr. Campbell insisted on was not, on its face, the deed of the Bank, the burden was upon him to make it their deed, by proof of Mr. Furman’s authority. There was no such proof; -or (to meet, more explicitly, the assertion in the second ground of appeal,) there was no evidence reported by the master as having been before him, that either the Cashier or President of the Bank would be authorized to enter satisfaction.

1 There is another view, less technical, .which is equally satisfactory. As the parties stood at the hearing of the case, the 1st of March, 1844, the trustees claimed the benefit of the first mortgage, for their indemnity, and it was adjudged to them by the decree subsequently delivered. The Court took time to consider of its decree, and in this interval the Bank undertook to transfer the judgment upon which the trustees were to be made personally liable, and at the same time, (if we are to attribute the entry of satisfaction to the Bank,) to deprive them of the indemnity of the mortgage. But this indemnity the trustees were as much entitled to, as the Bank was entitled to the judgment, and no man ought to suffer by the delay of the Court, while deliberating what judgment to give. (Park. R. 34.) If the Bank had retained its judgment in its own hands, it will not be pretended that it would have been at liberty to deprive the trustees of the benefit of the mortgage, and at the same time enforce the judgment against them. It would not be permitted to do this at any time, and especially after its right to do so was sub judice; and certainly the assignee of its judgment, coming in pendente lite, can stand on no better footing than the Bank itself. Neither can Mr. Campbell, who stands as the mortgagor, avail himself of any mistake to the prejudice of co-parties with himself in the same suit, whose rights were, at the time, in the custody of the Court.

The fifth and sixth grounds of appeal require no comment. The fourth ground, as it stands in the brief, is entirely too vague. But it has been explained, in argument, to mean that the order to sell for cash is in contravention of the Act of 1842, p. 237, sec. 2. This could only apply to the fire loan mortgage. But to understand the force of the objection presented, it is necessary to recur to the fire, loan Act of June, 1838, ch. 2. It is therein prescribed that loans under that Act shall be secured by bonds and mortgages, which bonds shall be payable in extended instalments, and in case of failure of the borrower to pay the instalments, with interest, the President and Directors of the said Bank shall and may, after six months’ notice to the obligor, his heirs, &c. proceed to sell the property mortgaged, by auction, for ready money, &c. This Act was amended in'certain particulars, not necessary to be noticed here, by the Act of December, 1838, ch. 8.

Then comes the Act of 1842, before referred to. The second clause of this Act provides that whenever any property, mortgaged to secure payment of any loan made pursuant to. the provision of the Acts of Assembly hereinbefore first mentioned, (the Acts of June and December, 1838,) shall be sold for foreclosure of such mortgage, such sale shall not be made for cash, but only for cash as to the instalments due, and as to the residue, upon credit, corresponding to the terms of the loan — as to which residue the purchaser shall give bond and mortgage, with sureties to said bond, to be approved by commissioners, to be appointed by the President and Directors of the Bank, and by the City Council of Charleston.

But by the second section of the first clause of the same Act, it is declared that no borrower, or his legal representative or assignee, shall be entitled to the benefit of this Act, until he or they shall have given notice in writing to the President and Directors of the Bank, that he or they claim the benefit thereof, and assent to and accept all the terms and conditions thereto annexed, which assent shall be endorsed on the bond and mortgage of the said parties, &c.

It might be doubted whether the clause relating to the terms of a foreclosure sale has any application, except where the foreclosure is effected in the summary method provided for in the Act of June, 1838; and if it extends to sales ordered by other authorities, it might still be questioned whether the mortgagor is entitled to the indulgence granted by the clause referred to, unless he has complied with the conditions laid down in the second section of the first clause, of which compliance there is no evidence.

Again, it might be doubted whether Mr. Campbell, the only party now objecting, did not stipulate to waive every such objection, in the correspondence to which I have already referred.

But, be this as it may, he is precluded by the settled practice of this Court, an adherence to which is necessary to the regular administration of justice, from taking his objection in its present form.

When an appeal is taken from the Master’s judgment or report, no matter in point is to be considered by the Court which was not before the Master; and his report must stand in all particulars not excepted to.

It was referred to the Master to report what was due on the mortgage in question, and he reported — and so far as we see, without objection — that the entire mortgage debts were due. It does not appear to have been made a point before him that any portion was not due. It was certainly competent for the party now objecting to waive any objection to which he was entitled. He put in no exception, and how was the Court to know, or conjecture, without any point being made before it, that the report was not correct 1 It was hound to assume its correctness. The decree was itself correct, upon that assumption. And we see no sufficient reason for going behind the report, (even if at liberty to do so,) in order to set aside a decree, the error of which, (if erroneous,) is owing to the laches of the party complaining.

It is ordered that the decree be affirmed: and it is further ordered that unless the defendant, James B. Campbell, shall, within thirty days from the filing of this decree, pay off the sums found due in the report of the Master, referred to in the decree, for principal, interest and insurance, the said decree, in all its provisions and directions, be carried into effect, and executed. It -is further ordered that the appeal be dismissed.

Decree affirmed.  