| S.C. | Mar 30, 1900
The opinion of the Court was delivered by
The facts of the case are thus set forth in the decree of his Honor, the Circuit Judge:
“This is an action for partition, and comes before me for hearing on exceptions to the master’s report. The plaintiff brings this action as surviving member of the firm of Moore, Marsh & Co., a partnership formerly existing and doing business in the city of Atlanta, Ga., composed of Edwin W. Marsh, William Kingsberry, William T. Ashford, John A. Smith and McAllen B. Marsh. It-appears that prior to the year 1892, the firm of Ramsay & Ward, of which William J. Ramsay was the senior member, became indebted to the firm of Moore, Marsh & Co. for goods and merchandise sold to the amount of about $2,200, and had deposited sundry dioses in action as collateral security to their account. The firm of Ramsay & Ward failed in business.' On April 1st, 1892, said indebtedness was adjusted at $1,500. A new note was given for that sum, and William J. Ramsay secured its payment by the mortgage of his interest in the real estate described in the complaint as lying on the Tugaloo River. The mortgage was recorded April 5th, 1892. It was subsequently discovered that an error had been made by William J. Ramsay in describing his interest as one-third, whereas he had only one-fifth residuary interest in the estate, real and personal, of his father, Alexander Ramsay, sr.; deceased. On April 19th, 1892, William J. Ramsay executed and delivered to Moore, Marsh & Co. his second mortgage
W. J. Ramsay, executed the following instrument of writing at the time herein mentioned: “Received of A. H. Ramsay $1,500 for my interest in the estate of my father, Alexander Ramsay, sr., deceased, which said interest I do relinquish unto the said A. H. Ramsay to be controlled and settled with him by the executors of said estate, this May 12th, 1871. W. J. Ramsay, (u. s.)” The master found that the plaintiff was a bona fide purchaser for valuable consideration without notice of the rights of A. H. Ramsay. The Circuit Judge sustained the report of the master.
The defendants appealed upon exceptions, the first and third of which are as follows: “ist. Because the Circuit Judge erred in holding that plaintiff was a-purchaser for valuable consideration of the interest of W. J. Ramsay in his father’s estate without notice of the equitable title thereto of the defendant, A. H. Ramsay. 3d. Because the Circuit Judge should have held that plaintiff was not a purchaser of said-interest for valuable consideration without notice, for the reason that said mortgage was given to secure an antecedent debt, plaintiff having totally failed to prove any valuable consideration paid at the time of the giving of the mortgage.” The first question that will be considered is whether his Honor, the Circuit Judge, erred in deciding that
Having settled the question of fact, we will proceed to_ state the principle of law governing such cases. In the case of Dearman v. Trimmier, 26 S. C., 506, Mr. Chief Justice Mclver says: “In the case of Haynesworth v. Boschoff (6 S. C., 159), the question arose, not under the commercial but under the equity rule, and it was there held to be well settled, that a person cannot invoke the protection of the equity rule, as a purchaser for valuable consideration without notice, unless he has paid the purchase money at the time of the purchase; and, that where the property in question was acquired in payment of an antecedent debt, still less where it was acquired as collateral security for such debt, he could not invoke the protection of the rule.” In Porn. Eq. Jur., vol. 2, sec. 749, the following language is used: “A conveyance of real or personal property as security for an
Having reached this conclusion, it becomes unnecessary to consider the other exceptions, as they only raise abstract questions.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed.