| S.C. | Jul 1, 1876
The opinion of the Court was delivered by
On the statements of fact set forth in the petition of J. M. Mackay, it is clear that he cannot succeed in setting aside the mortgage, or in having the portion of the purchase money that was paid, as alleged, out of the estate of his mother preferred in the payment over of the proceeds of the sale of the mortgaged property, as was done in Mathews vs. Heyward, (2 S. C., 239.) In that case the trust existed prior to the purchase of the land, and the purchase itself was a breach of trust. In this present case it does not appear that the funds with which the land was purchased were trust funds. The allegation that the purchase was made with funds from the estate of Mrs. Mackay is not sufficient to support the proposition that the funds were trust funds. It’was competent at that time, both in New> York and in this State, for Mrs. Mackay to hold a separate estate in her own right without the intervention of a trustee. Nor is it alleged that the use of the funds for the purpose of the purchase was unauthorized, or that she ever refused to accept the benefits of the purchase.
The trust must be considered as created by the deed to Barnett, which must be construed together with the mortgage as contemporary acts. The burden on the trust estate was, under this view,
But it is clear that the petitioner, Mackay, should have been made a party, as it appears that the cestui que trust was deceased, leaving him as her heir-at-law. The objects of the trust being fully accomplished at her decease, the trustee had only a nominal interest, while the petitioner had the substantial interest. (Code, Section 134.). The question of the sufficiency of his defense will properly come up by answer; the mere allegation that the petitioner was the real owner of the equity of redemption, belonging directly to the mortgagor, as such, entitles him to be made a party. It is equally important for the plaintiff that he should be made a party, as otherwise any equity of redemption that he may have would not be cut off and barred.
The order should be set aside and the petitioner be allowed to come in and answer. For further disposition, the case is remanded to the Circuit Court, leave being now here given to the said petitioner to file his answer to the said complaint within thirty days from the service, at the instance of the plaintiff, of .a copy of this order on him or either of his attorneys.