
    Sophia C. Messervey, et. al. vs. J. A. Barelli, and Sophia Messervey.
    Heard before Chancellor D. Johnson, Charleston, May Term, 1836. '
    In 1828, the late Copt. Messervey, of Charleston, died intestate, seized and possessed of real and personal estate, of considerable value, distributable amongst the defendant,'Sophia his widow, and sis children, who are the complainants 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 complainants, except Sophia, a. id thus became possessed of the personal estate, and entitled to receive the rents, issues, and profits of the real estate. In May, 1829, the complainant, Sophia C., filed hér 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 malting 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, except 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 beon purchased by the defendant, Sophia, at the gross sum of $12,736 72 cents, and that he had paid to defendant, Sophia, 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 complainant, Sophia, who was then of age, her share or portion, The commissioner also reported, that he investigated the accounts of defendant Sophia, as administratrix of the estate, and found that the balance of $2,374 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 complainanti, Sophia C., and recommended that the defendant, Sophia, should be discharged from her administration, and account annually with the commissioner, for the estate of her wards, which report was confirmed by the order of the court. The complainant, Sophia, 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 shew 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 that 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, Barrelli, so far from complying with the terms of the order, directing and requiring tier 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 at, in the name of one Susannah Gleize, her sister, whereby the ¿said bond is without the required security ; nor did she give bond and mortgage for her purchases at the eommisssioner’s sale, as required by the order for sale, nor has she account with the proper officer of the court, for her management of the estate of her wards; and the complainant supposes and believes, 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 lier co-defendant, Barrelli, on the 20th May, 1830, executed to him a penal bond, condition for the payment $5,098 50 cents, and to secure the payment thereof, mortgaged to the said Barrelli, 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 oí 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 27th January, 1829, in which he desires all persons who are indebted to the estate, to ynake 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 complainants’ 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 cominis-sioner’s sale, as of the day of sale, and that the mortgage from her to defendant Barrelli, may be decreed to be null and void, as far as regards the claims of the complainants’. That the defendant, Barrelli, be enjoined from selling the premises under the order obtained at law, to foreclose his mortgage, and for general relief. The defendant, Sophia, has »ot answered. The defendant, Barrelli,; answering, admits the death of Capt. Messervey, intestate, leaving the estate and family, stated in the bill, and understood that the estate was to be 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. lie 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 onlynecessary 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, Barrelli, paid the fees, and took the title deeds, and delivered them to defendant, Sophia, or they were delivered ¡0 her by Mr. Kane, the clerk of the commissioner, Hunt. That through the ageucy of Messrs. Hunt & 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 hor 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 bis knowledge enabled him to exercise, and in full confidence 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 teVtns, but 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 certifícales, that there was uo 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 proceeding in the Common Pieas, he obtained an order for the sale of the premises mortgaged to him, and the complainants’ 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.
    ©a the trial of the case, it appeared in evidence, that defendant,-Barrelli, was on terms of the most intimate friendship, with defendant, Sophia, and her family, paid his addresses to the complainant, 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 “ motherto her sisters, that of sister and to her aunts, that of “ aunt,” and was a constant visiter 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 Barrelli. 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 decliued 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 Barrelli 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 u pon his ipse dixit.
    
    This confidence probably originated in her own incapacity for business, and in the confidence that he would become interested in it, 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 Barrelli say, that a sale of the estate was necessary, to put it in the power of defendant, Sophia, and understood that the proceedings in Equity were intended for that purpose.
    Mr. Kane, the clerk of the commmissioner, Mr. Hunt, examined on interrogatories, stated that Mr. Hunt, since dead, executed a «leed 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 ; some the answer of Barrelli, and not very long before the examinado- 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 Barrelli, to secure a debt due to him ; and the questions which arise, are, — 1st. Whether in point of fact, Barrelli 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.
    Barrelli, 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 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 ibfgotten 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 con. currence. Ho 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 pul it in the power of defendant, Sophia ; and I will not believe he was so worth, less 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 combi--ation 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 Jiave been just as productive as if they were her own ; nor does it ap. pear, that there was any peculiar necessity for selling the whole estate on account of the complainant, Sophia 0., unless indeed, it was in her contemplation of her marriage with Barelli; and is it extraordinary that Barelli should have used the influence which ho • had acquired over this family, to induce them to do what he might suppose would effectually secure his demand against the mother. Tiie bad faith which he practised in the delicate affair of his attentions to the complainant, Sophia C., is pregnant proof that be 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 famih, ; 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 defendant, Sophia, to the commissioner, but the fees of office.
    Assuming, therefore, that Barrelli had notice, that the mortgage was a part of the terms ef the sale, and that no part of the purchase money was paid by defendant, Sophia, to commissioner, the question then arases, whether in law and equity, the lien of his mortgage is to be postponed until the claims of the complainant arc 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 ofi 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 court, of May term, 1829, directed to deliver and pay to de. fendant, Sophia, as the guardian ot her minor children, three portions of the estate, whether the same should consist 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 ac. count, became identified with her personal responsibility, but the mortgage was a higher security, which she was incapable of can. celling, as there was no other party capable of contracting about it. The defendant, Barrelli, dealing with defendant, Soptiia, with the knowledge that she was required to give the bond and mortgage, and had been appointed guardian ot her children, was bound to know the trusts resulting as legal conclusions 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?
    
      There is another view which puts this matter beyond all contri^ Versy. The act of 1791,1 Faust, 27, 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 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, Barrelli; 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 complainant, 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 notpretended in the report, that the commissioner received any money on account of complainant, 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 1 I think not. It is true that the interchange of receipts between the commissioner and defendant, Sophia, might, for some purposes be regarded as a payment; bub equity regards the substance, and not the form, of things, and will, to subserve the purposes of justice, set up securities, which, in form, have been extinguished. ■ The case of Sophia C. Messsrvey, is something different from that of the minor complainants, of whom, she is the guardian ad litem. The commissioner states, in his report of January, 1830, that he, himself, had paid to this complainant, her distributive share of the estate, real and personal; By what means this fact found its way into tho report, or upon what circumstances it was founded, does not appear ; but the ease furnishes intrinsic evidence, that the fact is not true; she avers most uuequivocally, that she has never received any thing. The commissioner, flu at, never received a dollar on account of the ¡sales beyoud his fees of office, and two thirds of the purchase money was not then due ; and on the trial of this case, there hale not been even a shew of evidence or a plausible argument in port of it; and the question is, whether she is bound by it.
    The judgment of a court of competent jurisdiction, on a matted 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 Complainant, 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 complainant and defendant, in the proportion of one third to the defendant, Sophia Messervey, and two thirds to be divided between the complainant, Sophia C., and her minor brothers and sisters and that the portions of the ¡minors should be paid and delivered to their glrardians, &c. &c. j 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 bis Teport 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 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 in its face as a mere official exparte proceeding.- But this is not all: the report concludes by merely recommending “ that defendant should be discharged from her responsibility, as adminis-tratrix, 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 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 complainant 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 complainants, 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 complainant, Sophia C. Messervey, distinguishing in Jibe manner between the real and personal estate. Audit 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 tho court, to abide the further order of the court, what shall be ascertained to be due to the minor complainants, on account of their distributive share of the real estate of their intestate father, with interest up to the time of payment,faand also pay to the complainant, 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 So. phia Messervey, the defendant, to the said defendant, Barrelli, 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 the court, do thereupon proceed to sell the said houses and lots, if 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 complainants, on account of their interest aforesaid in the said real estate of the intestate ; and that he likewise pay to complainant, 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, Barrelli, deducting therefrom the costa of this suit. In any event, the defendant, Barrelli, must pay all costs.
    DAVID JOHNSON,
    - From this decree the defendant appeal's, on the following grounds ?
    Fiust. — That the evidence of Barelli’s privity to the errors con. tained 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. Messer, vey, and in receiving and paying money for her, and in bidding for her at the sale, is a distiuct 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 Barrelli 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 accounts between Barrelli and Messervey, from which it appears, that in Ja-auary, 1829, and so late as June, 1829, Sophia Messervey was indebted to Barrelli in but a small sum, and that the heavy liabili. ties which she incurred to him, took place after January, 1839— find that the proposal of a mortgage came from Sophia Messervey, at a subsequent period, and alter the dissolution of his agency.
    4. That if these considerations are not sufficient to take off, alto, gether, tho charge against the defendant, the court should direct an issue upon the point of notice.
    Secondly. — That even supposing Barrelli to be privy to the deception practiced on the court, the complainant, Sophia, has no title to relief, inasnjuGh as she consented to a report, declaring that she had received her lull 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 Barrelfi, 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 practiced on the court, was confined to tho fact of representing, that she was guardian — in which there is no evidence of Barrelli’s participa, lion.
    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 fide, credited upon doubtful evidence of participation, in a transaction for which the immediate parties aro not called to account.
    Fifthly. — That even if Barrelli should be held bound by con, jstruclive or actual notice of the decree, to see whether there was Hot a mortgage to the commissioner, such notice would bind him only as to five sixths of #7,840, and the property in his hands should contribute only rateably with the rest of the real estate that pught to have been mortgaged.
    And lastly. — That the proceedings in Messervey vs. Messer-yey, if void or voidable, are so only as to the shares of the infants. And that the infants arc not parties to the present bill. That the style in which the complainant, Sophia, chooses to sue as on behalf of herself and her 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 & LESESNE, Appellant’s Solicitors,
    
   Chancellor Harper

delivered the opinipn of the court.

The first ground of appeal, relates to matters of fact, with respect to which, we should very much incline to be governed by th® chancellor’s decision. Our own judgment on the evidence, entirely agrees with the chancellor’s. The evidence is, that the defendant, Barrelli, transacted not only the commercial business of 'ftlrs, Messervey, but all her business affairs. The testimony ojf Mr. Shand, shews 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 every thing 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 complainant, Sophia C. MesserveyJ 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 efitiy 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. Tho payment was not in fact made. When we think of the relation in which the complainant then stood to the defendant, regarding him as her affianced husband, he must know very little of the female disposition, who does not know that she trusted every thing 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' 1 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 hat lotera o£ guardianship were issued. 8he, therefore, had no authority lo 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 assign, ment 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 complainants 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.

Fifth. 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 Í 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 complainants, 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 1791, directing that when land is sold for partition, it shall stand pledged for the purchase money. The act provides, that the party may apply afc bis option to the Court of Equity, or Common Pleas, for a writ of partition ; directs the manner of proceeding, and enacts, that “ if 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 pay. meat ofthepurchase 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 die expediency of a sale, and the Court of Equity, would of course make the enquiry for t is purpose, through its accustomed officer. If there has been an ij regularity in not having a previous return in partition, 1 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, Barrelli, 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 hex-mortgage to Barrelli, 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 complainants’ demands. But if as suggested, she had sold part of the property to a bona fide purchaser without notice, this could not deprive the complainants 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 Barrelli 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 complainant, has no case, and the infants not being properly made parties, the bill must be dismissed. The infants were improperly made complainants 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 complainants 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 complainant •, but tho court if necessary; would permit that defect to bér atfpp'Iied: 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.

Petigru, for motion.

Rice and Memminger, contra.

Filed 21st March, 1837.

The defendant’s demurrer to the bill, tm 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 guardian ad litem,, of her brothers and sisters.” ííe has taken no exception to this manner of suing by his answer, and must, therefore, be held to have waived 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; pa,y to the complainants, respectively, what shall be found due to them; an 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 Me.cervey, and mortgaged to the commissioner in equity, which was not mortgaged by her to the defendant, Joseph A. Barrelli, but remains in her hands, and apply the proceeds towards the satisfaction of the complainant’s 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 complainant's said claims; in pursuance of the directions of the decree; and it is ordered and decreed accordingly.

WILLIAM HARPER.

We concur,

DAVID JOHNSON,

X JOHNSTON.;  