
    The Legatees of Ash against The Executor of Ash.
    a mortgage «loes not lose its Hen on the of recording, subsequent"'0 preference. "" elect to go iand, or bring his aetion-for the money die Setbere-subsequent*"0' judgment^ as for paid away by Wistate.
    CASE for the residue of an estate, also for monies' had 1 and received.
    1 he right of the plaintiffs in this action, was not disputed, and the accounts on the part of John Ash, executor Joseph deceased, were admitted to be proper. groun^ of contest was, the laches of the defendant, as was alleged, in not recovering a bond from John Berwick to his testator, given in December, 1778, condi- . ¶ r , r . _ _ . , tioned tor the payment of 31,000/. currency, and also m not recording a mortgage made to secure payment of the bond, '°7 which neglect, it was said, the debt was lost.
    From the plaintiffs’ evidence it appeared, that Berwick purchased a tract of land from the defendant’s testator, in 1778, and gave the bond above stated for the consideration money, together with a mortgage of the premises. That Joseph Ash lived till 1780, when he died; and after his death, the defendant, John Ash, qualified under th<? will. That Berwick remained solvent till his death, which took place some time in 1784; and after his death, his estate was considered as solvent till 1788, when it was discovered that the assets would not be sufficient to discharge the debts. In the mean time, sundry judgments were obtained, some against him in his life-time, and others against bis estate after his death. In consequence of which, executions were issued, and the whole of the estate sold to satisfy the judgments, and among other parts of his real estate, the premises he purchased of the defendant’s testator. ..That during all this period, the defendant never commenced any suit to recover this bond, nor had even taken the precaution to record the mortgage, which would have secured the plantation (for which the bond was given) from subsequent judgments ; by means of which neglect or delay, on the 'part of the executor, the plaintiffs alleged, they had lost the whole amount of the said sum of 31,QQQii and interest from December, 17?8. That when the land was about to be sold by the sheriff, under and by virtue of the executions, the defendant was present, and did not forbid the sale, or inform the sheriff of the bond and mortgage, but suffered the land to be purchased by the creditors.
    
      Pringle, on behalf of the plaintiffs,
    argued, that in this case there was so glaring a neglect or laches, on the part of the defendant, as made him clearly liable. That the prin»' cipal part of the duties of an executor was, to collect the debts, and recover the rights of his testator. That wherever a man takes upon him any duty or trust, he is bound to perform it faithfully ; and if any damage accrue by his default, he was liable. It was unnecessary, he said, to cite a series of authorities to support this doctrine, for none was better established, and more consonant to sound sense and reason.
    On the part of the defendant, it was alleged, that the testator hitriself had been guilty of the laches, in not recording the mortgage in his life-time, as he had lived sixteen months after it was given. It was further alleged, that at the time of his death, the country was in the utmost confusion, the British troops being then before the lines of Charleston; and that he himself, in the midst of the hurry and tumult of the day, incautiously put the bond and mortgage among his old papers, where they remained undiscovered till 1791. So that the defendant never had the bond to put in suit till it was too late, nor the mortgage to record until after the sales were made. In support of this allegation, Thomas Jones was called as a witness, who proved, that in July, 179.1, he assisted the defendant to arrange the papers of the estate, and in looking into a trunk which contained a number of old papers for sixty years back, theyr found the bond and mortgage. He believed they were then, for the first time, discovered by the defendant. He also proved, that at the time of the sale of the land, the defendant told him he had a mind to purchase it, as he said there was a demand against Berwick’s estate. Another witness proved, that when the land was advertised for sale, tke defendant endeavoured to stop it; that he searched for L the mortgage, but could not find it. On the closing of this .testimony,
    Pinckney, for the defendant,
    admitted, that in cases of great or wilful omissions on the part of executors, in' not recovering the rights of their testator, the law would charge them ; but such was not the case here. There was no culpable omission whatever ; and it would be hard indeed, to make executors liable for not discovering deeds and papers mislaid by their testators. He next contended, that the mortgage did not lose its lien on the land, by any subsequent judgments. That the act for preventing double conveyances, said nothing about judgments, nor did it fix any period to the duration of the lien which a mortgage had on the lands. It only directed, that the mortgage or deed first on record, should have the preference. That if the plaintiffs chose to recognise the sale made by the sheriff, and give up their lien on the mortgage, the money might still be recovered back, as paid by mistake ; or they might foreclose the mortgage, and have the land sold under it to satisfy the debt. So that they were not without remedy, notwithstanding the delay which had been occasioned by these papers being so long mislaid.
   Rutledge, Ch. J.

mentioned, that there did not appear to be any culpable omission in this case, on the part of the defendant, so as, make him chargeable. That there was every reason to believe, that the deeds had been mis laid by Ash in his life-time. At least, it did not appear that they ever came to the knowledge, or into the hands of the defendant till í T91. That, at all events, the plaintiffs7 mortgage had not lost its lien, by the entering up of subsequent judgments. That although judgments bind from the time of signing them, yet they must be understood to be subject to all prior incumbrances. The mortgage was not void, by not being on record. The only risk the mortgagee ran, was the chance of another df ed from Ber- wick for the same laud, being put on record before the mortgage in question. If, however, the plaintiffs chose to relinquish their right under the mortgage, and recognise the sale made by the sheriff under the execution, the money might be recovered back from the person to whom it was paid, as money paid by mistake.

Bay, J.

of the same opinion.'

Verdict for defendant.  