36 S.C. 136 | S.C. | 1892
The opinion of the court was delivered by
The two foregoing actions were heard together in the Circuit Court for Chester County, and by agreement the appeals from the decrees in the said causes, respectively, have been heard together in this court.
It may assist this court, in rendering its judgment upon the variety of issues here involved, to have presented in the order of their occurrence the circumstances which have given rise to this contention. Under the will of the late General William R. Da-vie, William R. Davie, Mary F. Woolf, John M. Davie, and Allen J. Davie, being seized in fee simple, as tenants in common,
In 1877, October 1st, Allen J. Davie assigned the bond and mortgage of William Ii. Davie to the Rock Hill Manufacturing and Industrial Association, to secure his note for six hundred dollars of that date, payable on 1st January, 1878, with interest at 18 per cent, per annum until paid. This assignment is still held by such Association. On 31st March, 1879, William R. Davie, having failed to pay the bonds secured by mortgage on interest in Landsford lands, held by John M. Davie and Mary F. WToolf, executed a deed to each, whereby he executed a release of his equity of redemption in the one undivided fifth part of Landsford plantation which he had purchased from each one of them and had mortgaged to them respectively, to secure the purchase money of their respective shares therein ; and thereby the said John M. Davie and Mary F. Woolf were restored to their original shares . of one-fifth each in the Landsford plantation. Edward McCrady, the younger, prepared these deeds. On the same date he pre
On the 23 July, 1880, John M. Davie and Mary F. Woolf, as plaintiffs, commenced an action for the partition of the Landsford plantation amongst the said John M. Davie, Mary F. Woolf, William R. Davie, Allen J. Davie, and Mary F. McCrady, so that each one of them should receive one-fifth part thereof. The said William R. Davie, Allen J. Davie, and Mary F. McCrady each acknowledged service of the summons in such action by their own hands, and the joint answer that admitted the facts stated therein to be true, and agreed to abide the decree, was signed by them respectively, and was dated 28th August, 1880. Edward McCrady, the younger, was the attorney for all of defendants.On the 4th September, 1880, Allen Jones wrote a letter of inquiry to John J. Hemphill, as the attorney for John M. Davie and Mary F. Woolf (who both resided in the State of Texas), making inquiries as to what price' he tvould sell their respective interests in the Landsford plantation for. Allen J. Davie had been talking to Allen Jones to buy his one-fifth. But before reaching any conclusion, Allen Jones requested Dr. Thomas C. Robertson, who was his brother-in-law, to interview Col. W. R. Davie on the subject of this purchase, with a view of ascertaining if such a step on his part would be agreeable to the other owners. In a letter of Allen Jones to Edward McCrady, the younger, who was then in New' York city, dated 22 September, 1880, speaking of this matter, it is said: “John Hemphill, of Chester, has approached me several times in purchasing the two Alabama interests in the
We have here at this time two sets of circumstances- — one showing that John M. Davie, Mary F. Woolf, and Allen J. Davie are anxious to sell their shares in the Landsford' plantation, but a new difficulty presents itself — William R. Davie and Allen J. Davie have been sued to judgment by some of their creditors, who are, demanding their money, to wit: James R. Seeley v. William R. Davie, November 21st, 1878, $1,565.10; J. I. Middleton & Co. v. William R. Davie, March 17, 1879, $387.33; Poole & Hunt v. William R. Davie and A. J. Davie, March 13th, 1879, for $.323.17 ; Texas Lumber Company v. William R. Davie, March 13th, 1879, $670.25. If a sale should be made of the interests of William R. Davie and Allen J. Davie under these judgments, strangers might become owners of an interest in this property. Besides, William R. Davie might lose his homestead. Hence the interchange of views of the parties. Allen Jones, Thomas C. Robertson, William R. Davie, and Edward McCrady, the younger. However, it should be stated that about this time, Allen Jones agreed with Allen J. Davie to purchase his interest in the Landsford plantation, and to pay therefor $1,000 in cash, and to relieve Allen J. Davie of his note and mortgage to the Rock Hill Manufacturing and Industrial Association. No deed was executed to Allen Jones, although Allen J. Davie applied to Jones to make such deed. William R. Davie had notice of this transaction. This last fact appears in three ways: Dr. Robertson so testifies; William R. Davie admits that his wife told him that Allen J. Davie told her so; and Allen J. Davie, by a-postal card written to Allen Jones, and dated 26 October, 1880, refers to a message to him from Allen Jones by the hands of William R. Davie.
Allen Jones and Thomas C. Robertson had agreed to help William R. Davie. Edward McCrady, the younger, as his attorney, was aware of this intention, and assisted in its consideration and performance. It was determined by the parties that William R. Davie’s share in the Landsford property should be sold at sheriff’s sale, in order to free it from encumbrance. It was also, in furtherance of this scheme, agreed that such sale should be made on 1st Monday in January, 1881, at Chester. Late in the month of December, 1880, Edward McCrady discovered, the advertisement of such sale was in error, and at his instance such sale was postponed until first Monday in February, 1881, so that such error might be corrected. Certain it is, that beginning on the 3rd day of February, Jones and Robertson began to buy up the judgments and a mortgage which were liens upon the share of William R. Davie in the Landsford plantation. Under this arrangement, at the sale by the sheriff on the 5th February, 1881, Allen Jones purchased and received title for such share of William R. Davie. Allen Jones always admitted that he had purchased this share for the benefit of William R. Davie, but owing to the financial embarrassment of the latter, the title to the same was subsequently, at the instance of Col. McCrady, executed by Allen Jones to the wife of William R. Davie, Henrietta C. Davie, the purchase money ($2,000) of said interest being raised by her through a loan originally by Pelzer, Rodgers & Co., but finally from Mary F. Davie.
As a factor in these arrangements, was the control and development of the water power on the Landsford property. The persons who alone seemed interested in this enterprise were Allen Jones, Thomas C. Robertson, William R. Davie, and Edward McCrady, the younger. To facilitate and effectuate this enterprise, care was taken that something more than 500 acres of land
In February, 1881, the interests of John M. Davie and Mary E. Woolf, as heirs at law of Allen J. Davie, in the Landsford property were purchased, and on salesday of that month, under a judgment obtained against Allen J. Davie in his life-time, his interest in the Landsford property tvas purchased by Allen Jones, and a deed therefor taken in his own name. All these things happened with the full knowledge thereof by Edward McCrady, the younger, and William R. Davie. During this time, from November, 1880, until after March, 1881, Col. McCrady was the attorney for all these parties, and that he exercised a vigilant care of their respective legal interests will be admitted upon an inspection of the testimony, both oral and documentary, as set out in this “Case.” Allen Jones endorsed the note of A. J. Davie to the Rock Hill Manufacturing and Industrial Association, February, 1881. The joint owners of the Landsford property rented the same to other parties from year to year until 1887, William R. Davie having control of the plantation.
On 21st December, 1886, Mary F. McCrady, wife of Edward McCrady, as plaintiff, exhibited her complaint in the Court of Common Pleas for Chester County, against Allen Jones, Thomas C. Robertson, individually and as partners, William R. Davie, and Henrietta C., his wife, Mary F. Davie, Skipwith Wilmer, as assignee of J. I. Middleton and Company, the Rock Hill Manufacturing and Industrial Association, J. B. E. Sloan & Son, and Pelzer, Rodgers, and Company, as defendants, praying for a partition of the Landsford plantation so that she should receive three-fifteenths (3-15) thereof, Allen Jones four-fifteenths (4-15), Thomas C. Robertson four-fifteenths (4-15), and Henrietta 0. Davie four-fifteenths (4-15).
Thus it will be seen that the pleadings made these issues : 1. The division of the Landsford plantation, so that what is known as the water power tract, containing about 500 acres, was a distinct branch or part thereof. 2. The effect of the purchase of William R. Davie’s interest in the Landsford property by Allen Jones, in February, 1881 ; it being contended by the plaintiff and her allies that such purchase, in its entirety, was subject to the same trusts, and that Allen Jones had no right to either hold it for any
After the parties to this action were at issue, by an agreement Signed by the plaintiff and all the defendants, an arbitration was agreed upon, which is as follows :
“Whereas differences have arisen between us, Henrietta C. Davie, the wife of William R. Davie, and Allen Jones and Thomas C. Robertson, in relation to the proportion and extent of shares to which the said Henrietta C. Davie, Allen Jones, and Thomas C. Robertson, respectively, are entitled under certain conveyances made by the sheriff of Chester County to Allen Jones of certain undivided interests in and to a certain tract or ■plantation of land, situated on the Catawba River, Chester County, formerly the property of the late General William R. Davie, known as the Landsford plantation, which said plantation is more particularly described in the pleadings in a certain cause in the Court of Common Pleas for Chester County, entitled Mary F. McCrady, plaintiff, against Allen Jones and others, defendants ; and also as to the right of the said Allen Jones to have mortgaged certain interests therein to certain persons, to wit, to Messrs. Pelzer, Rodgers & Co., and to Messrs. J. B. E. Sloan & Son, and as to the validity of the mortgages given by the said Allen Jones to the said persons, so far as the same in any wise affect the interest of the said Henrietta C. Davie. And, whereas, the said Henrietta C. Davie and the said Allen Jones and Thomas C. Robertson, and the other parties hereto, are anxious to bring the same to a speedy and friendly adjustment:—
*146 “Now, therefore, we, the said Henrietta C. Davie, Allen Jones, Thomas C. Robertson, Francis J. Pelzer, Francis T. Rodgers, W. Gr. Muckenfuss, T. S. Inglesby, and Francis J. Pelzer, the younger, copartners, doing business together as Pelzer, Rodgers & Co., and J. B. E. Sloan and Lewis F. Sloan, copartners, doing business together as J. B. E. Sloan & Son, do hereby mutually covenant and agree to and with each other to submit to the arbitration of Thomas W. Bacot and Charles E. Spencer, Esquires, all said matters of differences, and any and all other matters of difference, as the same appear or arise from the pleadings in the said cause above mentioned to which the parties hereto are therein parties defendant. And we do hereby authorize and empower the said Thomas W. Bacot and Charles E. Spencer, in case they cannot agree in the said arbitration, or in case of any difference of opinion between them arising out of the matters submitted, incidentally, or otherwise, to call in, nominate, and appoint some third person, the same to be a counsellor at law, who, together with the said Thomas W. Bacot and C. E. Spencer, shall consider the said matters of difference between the said parties as the same shall appear or arise between the said parties from the said pleadings, and shall hear the parties hereto, and shall hear and receive any legal testimony the said parties may offer in relation to the same, and decide, determine, and arbitrate all such matters of difference hereby submitted. The decision and arbitration thereof of any two of the said arbitrators shall be binding and conclusive upon the said parties hereto. And it is hereby mutually covenanted and agreed to and with each other by the parties hereto that the decision, arbitrament, and award of the said Thomas W. Bacot and the said Charles E. Spencer, if they shall agree in the same, or of any two of the said arbitrators and such person as they may call in, in case they cannot agree, shall be well and faithfully kept and be performed, and that the said parties hereto, or any of them, shall and will execute any deed or deeds, release or releases, acquittance, or discharge as the said arbitrators shall or may direct, decide, and award.
“And the said Mary F. McCrady consents and agrees to and' with the parties above mentioned, that any order or decree which*147 may be directed by the said arbitrators above: named and provided, shall be entered as an order or decree in the said cause above mentioned, wherein she is plaintiff and the other parties hereto are defendants. And the said Mary F. MeCrady, Henrietta C. Davie, Allen Jones, Thomas C. Robertson, Pelzer, Rodgers & Co., and J. B. E. Sloan & Son, Frederick G. Frazer, ¡and J. Alvin Ball, executors of the late Mary F. Davie, parties to the said cause above mentioned, do hereby further authorize and empower the said Thomas W. Bacot and C. E. Spencer, after a decision and award has been made as ,,to the said matters of difference between the parties above mentioned aforesaid, to allot, partition, and divide the said plantation in kind among and to the parties hereto in such shares and proportions as they may decide, arbitrate, and award as above, or direct the same to be sold and the proceeds of sale to be divided in such shares and proportions, with all the powers as if they, the said Thomas W. Bacot and Charles E. Spencer, had been duly appointed commissioners in partition by a decree of the court in said cause. And in case the said Thomas W. Bacot and Charles E. Spencer cannot agree upon such:partition in kind or to such sale for partition, then, in that case the said Thomas W. Bacot and Charles E. Spencer are hereby authorized to call in some third person as hereinbefore provided, and any two of the said three are hereby authorized and empowered to make partition in kind or to direct such sale as they may decide and award.
“And it is hereby further agreed that such arbitration and award shall be entered as a decree, by-consent, in the cause above named; which cause shall not be deemed discontinued by this agreement to arbitrate, but shall stand to carry out the award when made, as a final determination of the matters of difference ; and which decree shall authorize, direct, and empower the said Thomas W. Bacot and C. E. Spencer, in accordance with the said award, to allot, partition, and divide the said plantation in kind among and to the respective parties in interest, or in case a partition in kind cannot be had, to sell the said plantation as a whole, according to law and the practice of the Courts of Common Fleas in such cases, and to - execute and deliver good and sufficient .deeds to the respective parties in interest in case of*148 partition in kind, or to the purchaser, in case of a sale, in the event that the parties themselves, or any of them, shall not be alive at the time, or, being alive, shall neglect or refuse to execute and deliver such deeds, with all the powers as if they, the said T. W. Bacot and C. E. Spencer, had been duly appointed commissioners in partition by a regular decree of the court in said cause. And if they, the said T. W. Bacot and C. E. Spencer, cannot agree upon a partition in kind, or upon a sale, then to call in some third person, and any two of the said three shall be authorized, directed, and empowered to allot, partition, and divide in kind, or in case a partition in kind cannot be had, to sell and execute and deliver deeds as aforesaid.”
Thomas W. Bacot and Charles E. Spencer undertook the aforesaid work, calling to their aid Robert W. Shand, Esquire, a counsellor at law, as umpire. In the presence of said umpire all the testimony taken was offered, although he did not actually participate in the work of the arbitrators until Thomas W. Bacot and Charles E. Spencer had failed to agree. This event occurring, Mr. Shand, at their request, joined in the work of the arbitration. Theffollowing award was made :
“The undersigned, C. E. Spencer, arbitrator, and R. W. Shand, umpire, under the agreement to award herein, executed by the following named defendants to the cause, Allen Jones, T. C. Robertson, Henrietta C. Davie, Erancis J. Pelzer, E. S. Rodgers, W. G. Muckenfuss, T. S. Inglesby, Erancis J. Pelzer, jr., J. B. E. Sloan, Lewis E. Sloan, and Mary E. McCrady, do make our award as follows :
'■'■First. As to the legal title to the Landsford property, described in the complaint, without regard to equities or encumbrances : 1. That Mrs. Mary E. McCrady is seized of one undivided fifth part of the whole. 2. That Mrs. Henrietta C. Davie is seized of one undivided fifth of said property, not including the water power tract of 500 acres, more or less, as per the Stewart survey of April, 1882. 3. That Thomas C. Robertson is seized of one undivided fifth of the whole. 4. That Allen Jones is seized of two undivided fifths of the whole, and in addition to one undivided fifth of the water power tract.
“Second. As to the equitable title and encumbrances: 1. That*149 an undivided fifth interest in the whole property is in Mrs. Mary F. McCrady, free of encumbrances. 2. That one undivided fifth of the property, not including the water power tract, is in Mrs. Henrietta C. Davie, subject to the mortgage set up in the answer of the executors of Mrs. Mary F. Davie. In this connection, we further find and award that the original undivided fifth interest of William R. Davie, became invested in Allen Jones, for the benefit of the said William R. Davie, or for such other person as lié or his counsel, Col. McCrady, might direct; that subsequently the said Jones conveyed to Mrs. Davie the interest awarded to her above; that prior to the sitting of the arbitrators no direction had been made as to the water power interest, except when the said Allen Jones had been excused from obeying it; that we decree from the testimony that the direction has been made before us; and therefore we conclude and award that the equitable title to one undivided fifth of the water power tract is now in Mrs. Henrietta C. Davie, but subject to the payment of the real amount due by W. R. Davie upon his note of $1,665.06, described in the mortgage set up by the answer of J. B. E. Sloan & Son, after a settlement of the accounts between the said W. R. Davie and the said Allen Jones, or Jones & Robertson, the testimony being too defective for us to state the accounts ; and also subject to any balance due them (Jones & Robertson) if it shall appear that the balance fall to them. 3. That one undivided fifth interest in the whole property is in Thomas C. Robertson,- subject to the payment of the amount due upon the Middleton mortgage to the real holders thereof, upon which point the proof before us is defective; and in addition thereto, that one undivided fifteenth interest in the whole property is in him, also subject first to the debt due by Allen J. Davie to the Rock Hill M. and I. Association, to secure which it holds the bond and mortgage set out in its answer, and then to the mortgage of Pel-zer, Rodgers & Co., as set out in their answer. 4. That one undivided fifth interest in the whole property is in Allen Jones subject to the payment of the amount due upon the Middleton mortgage to the real holders thereof, upon which point the proof before us is defective; and that in addition thereto, one undivided fifteenth interest in the whole property is in him, also*150 subject first to the debt due by Allen J. Davie to the Rock Hill M. and I. Association, to secure which it holds the bond and mortgage set out in its answer, and then to the mortgage of Pel-zer, Rodgers & Co., as set out in their answer. 5. That one undivided fifteenth interest in the whole property is in William R.Davie, to which the legal title is in Allen Jones, as before found and awarded. But as the. said William R. Davie is not a party before us, we do not pass upon any equities as between him and the said Allen Jones, or as between him and the said Pelzer, Rodgers & Co.
“We further find and award that partition of the premises in kind is impracticable, and that it is necessary to sell the same in order to make a division; and that the water power tract and the remainder of the land will have to be sold separately, unless all the parties to this arbitration come to an agreement in writing (to be attached to this award), that the entire place be sold in one body, in which event our award is that it be so sold. We recommend that the accounts between W. R. Davie and Jones & Robertson be taken in this cause, with a view to ascertain what charge there is upon the present interest of Mrs.. Henrietta C. Davie in the water power tract; and that the amounts due respectively upon the two Middleton mortgages be likewise established in this proceeding, until which adjustment let the funds representing the interests involved be retained by the court. William R. Davie wras before us as a witness, and having every reason to believe that a sale of the premises would be awarded, he made no objections, and therefore we take it that he is entirely willing that his equitable interest be transferred to the fund to arise from the proceeds of sale; but we recommend that he be made a party to this cause with a view that the equities between himself and Allen Jones and Pelzer, Rodgers & Co., also referred to, be adjusted; until such adjustment let the said fund remain in the hands of the court. We further recommend that the sale be for one-third cash, and the balance on a credit of one and two’ years, in equal instalments, with interest from the day of sale, to be secured by the purchaser’s bond and a mortgage of the purchased premises, with leave to him to pay his entire bid in cash; and that it be had on salesday in November, 1887, or at such*151 other day as the court may direct, at Chester Court House, after due advertisement.” Under seal and dated 4th day of August, 1887.
The other arbitrator, Thomas W. Bacot, Esq., on the same day and under his seal, made an awa'rd, wherein he set forth the fact that the award of the majority of arbitrators had exceeded the powers under the deed of submission by the parties thereto, both in subject matter, and in attempting to settle the rights of persons not parties to the submission. He also took issue with them as to their findings. While the paper prepared by Mr. Bacot was logical, strong, and comprehensive in its treatment of the points at issue, we cannot reproduce it here, because, strictly speaking, it does not relate to the matters here to be considered by this court, and this reference is made to it because wm deem, it but an act of justice to its author to - thus explain its absence from our opinion.
A motion was made before Judge W. H. Wallace, who was presiding at the fall term of the Court of. Common Pleas, for Chester County, in 1887, to confirm the award of Mr. Spencer and Mr. Shand and make it the judgment of the court, and on the 14th December, 1887, Judge Wallace filed his decree, refusing the motion on the ground that the action between the parties to the arbitration was pending in court at the time of its submission to árbitration, and no rule of court having been obtained therefor, under the authority of Parnell v. King, Rice, 376, no judgment could be rendered confirming the same against the wishes of any party thereto. From this decree there was no appeal. But by the same decree, it was ordered, on motion of the plaintiff’s attorney, that the case be referred to John C. McFadden, clerk of the court, to take the testimony and report the same to the court.
After due notice therefor, on the 16th February, 1888, the defendants, Allen Jones, Thomas C. Robertson, and J. B. E. Sloan & Son, moved before his honor, Judge Witherspoon, for. leave to file supplemental answers embodying therein, as a part thereof, the submission to arbitrators and their award, and also for an order extending and enlarging the order of reference in the cause, so that testimony should be taken by Mr. McFadden,
“The defendants, J. B. E. Sloan & Son, Allen Jones, and Thomas C. Robertson, moved before me at chambers for leave to file supplemental answers in the above entitled case. It appears that the defendant, Thomas C. Robertson, has never filed an original answer in the cause, and therefore has no right to file a supplemental answer. The motion as to the defendant, Thomas C. Robertson, must be refused. The grounds for and against the motions of the other defendants, Sloan & Son and Allen Jones, being the same, they will be considered together. Inasmuch as the defence sought to be set up by these defendants arises out of facts occurring subsequent to their respective former answers, the right to 'file supplemental answers is addressed to the discretion of the court. No reason exists for withholding the leave to file supplemental answers, unless the granting such leave would in effect be reviewing the order of Judge Wallace made in the cause, or unless that order should be regarded as such a step in the cause, after the occurrence of the matters sought to be pleaded as would preclude the parties from now entering the plea. It appears that the plaintiff moved before Judge Wallace for an order of reference to take the testimony. At the same time the defendants moved before Judge Wallace for the confirmation of a certain award, and to have such award made the judgment of the court. Judge Wallace refused the defendants’ motion upon the ground that the submission to arbitration had not been made by rule of court, as the action was pending in court when the submission was made. Judge Wallace further ordered a reference to take the testimony and report the same to the court. The point that the award could not be set up by a direct proceeding to that end was not before Judge Wallace. I hold that the granting of defendant’s motion will not in effect be reversing Judge Wallace’s order.
“It is true that the cause was on the calendar and was not heard, and in that sense, there was a continuance since the alleged award was made, but there was no decided step made in*153 the cause by its simply going over for trial to the next term. The order of reference simply directs the referee to take the testimony and report the same to the court, and it appears that no reference has been held, or notice of reference given. I do not think that there has been such a step in the progress of the cause after the occurrence of the matters sought to be pleaded as would preclude the defendants, Sloan & Son and Allen Jones, from entering the plea contained in their supplemental answers. I, therefore, grant the motion of the defendants, Sloan & Son and Allen Jones, for leave to file their respective supplemental answers. The merits of the award above referred to are not before me and can only be considered when the case is called for hearing in its regular order. It will then be time enough to consider whether or not the supplemental answers affect W. R. Davie. It is sufficient to say that if the order of reference should be enlarged so as to include testimony upon the issues presented in the supplemental answers, it will be time enough to apply to have the order enlarged in open court, after the issue is joined under the supplemental answers. I must therefore refuse that part of the motion of the defendants, Sloan & Son and Allen Jones, which seeks to enlarge the order of reference so as to have the referee take testimony upon the issues raised by the supplemental answers.”
Notice of intention to appeal from Judge Witherspoon’s order was served by Mary F. McCrady, Henrietta C. Davie, and the executors of Mary F. Davie, deceased, on the 2nd March, 1888, less than ten days after such order was filed. The grounds of appeal will hereinafter appear, and will be considered by this court in their chronological order.
The suppletnental answers were served. The plaintiff demurred to each of said answers, upon five grounds: 1. That the award is not in conformity with the terms of the submission as set forth in the said answer. 2. That the award is indefinite and uncertain in that it awards that Henrietta C. Davie is seized and possessed of one undivided fifth of said property, not including the water power tract of '500 acres, more or less, as per Stewart survey of April, 1882, no such survey being made a part of said award ; and in that it directs the water power tract and
At this juncture a new element was injected into the litigation. Edward McCrady, the younger, exhibited his complaint in the Court of Common Pleas for Chester County, against William R. Davie, Henrietta 0. Davie, Allen Jones, The Rock Hill Manufacturing and Industrial Association, and the different partners associated as Pelzer, Rodgers & Co. The new plaintiff claimed to have bought the bond and mortgage executed by W.. R. Davie to Allen J. Davie, and by him pledged to Rock Hill &c. Association, the bond and mortgage so purchased having been executed 18 November, 1876. The defendants, Allen Jones and Pelzer, Rodgers & Co., vigorously denied that there was anything due on this bond and mortgage, except what was due to Rock Hill M. & I. Association; certainly there was nothing due the plaintiff in this second suit. And that, however- these things might be, the said plaintiff was estopped from setting up said bond and mortgage by reason of the purchase of the Allen J. Davie interest, in February, 1881, under the advice of said Edward McCrady, the younger, as counsellor at law, as attorney for the parties so purchasing such interest.
On the 27th day of March, 1888, his honor, Judge Wither-spoon, passed the following order, with the consent of all parties, in the first case ; Mrs. McCrady, plaintiff, v. Jones et al., defendants :
“On motion of Wilson & Wilson and C. E. Spencer, Esq., attorneys for certain defendants in above stated case, and with the consent of Edward McCrady, jr., Louis DeB. McCrady, and T. W. Bacot, the attorneys for all other parties to said case, it is*155 ordered : 1. That William R. Davie, John R. London, and A; E. Hutchison be made parties to said cause, and that summons and copies of complaint be served- upon them to answer thereto within twenty days from the service thereof. ■ 2. That in case the plaintiff demurs to the supplemental answers served upon her on the 7th March, 1888, her demurrer shall stand to be argued when the case is heard on the report of the referee, appointed to take the testimony, notwithstanding that testimony has been taken after the filing of the demurrer. 3. That the case of Edward McCrady, the younger, against William R. Davie and others, suit for foreclosure, be, and is hereby, consolidated with this case. 4. That the order of reference heretofore made in this case by Judge Wallace, is hereby extended and enlarged so as to allow testimony to be taken on the new matter introduced by the, supplemental proceeding;, and also upon the issues in the said foreclosure suit of McCrady v. Davie and others. 5. That these amended pleadings be perfected by the 1st day of May, 1888, and that the references commenced on the 16th day of May, 1888. 6. That these orders and subsequent proceedings be taken without prejudice to the appeal from the order allowing supplemental answers to be filed, notice of which has been duly given, and which will stand to be heard when the case reaches-the Supreme Court on its. merits.”
The new defendants, W. R. Davie and Jones and Robertson, filed their answers on the 16th May, 1888. At the reference, upon agreement, the notes of testimony taken before -the arbitra-, tors in August, 1887, with such modifications and corrections as the witnesses should indicate in their testimony before the referee, were allowed. Other testimony was also taken, in all covering 122 printed pages. At the hearing of the two causes an affidavit from Allen Jones and Thomas C. Robertson was submitted as the. basis for an application for the appointment of a receiver for the Landsford property, and in opposition thereto an affidavit of' William R. Davie was submitted. Of course, a notice of such application accompanied the affidavit.
At the hearing before Judge Kershaw, which occurred during the June term, 1888, of the Court of Common Pleas for Chester County, the two cases were heard upon the pleadings and the
Decebe oe Judge Kershaw.
“By agreement of counsel, the cases above stated were heard together. The first is an action for partition of real estate, and the second for the foreclosure of a mortgage of an undivided interest claimed to exist therein. The decision of the case has been delayed far beyond the proper time by the illness of the presiding judge, and the great difficulty of arriving at the facts of the case on account of the many issues presented, the contradictory character of the testimony, and the wide range it has taken.
“The facts, so far as necessary to be stated, are as follows: On or about the 27th day of March, 1874, William R. Davie, Mary F. Woolf, wife of Stephen M. Woolf, John M. Davie, and Allen Jones Davie, being then seized and possessed as tenants in fee of the lands described in the first paragraph of the complaint of Mary F. McCrady herein, known as Landsford, for valuable consideration executed their deed to the said Mary F. Mc-Crady, conveying an undivided one-fifth part of the said land, and subsequently having discovered that the deed was insufficient in law to convey the same by reason of the presence and subscription thereto of only one witness, they ratified and confirmed to Mary F. McCrady the title to the interest intended to be conveyed by their proper deed of release and confirmation bearing date the 9th day of February, 1877, duly executed and recorded, whereby the said one-fifth interest in the said Landsford estate vested in her in fee. On the 18th day of November, 1876, the said William R. Davie purchased the interests in said land of Mary F. Woolf, John M. Davie, and Allen J. Davie, and gave to ■each of them a mortgage upon their respective shares to secure the payment of the purchase money for the same. On the 12th day of October, 1877, Allen J. Davie, being indebted to the Rock Hill Industrial Association by his note for the sum of six hundred dollars, with interest from the 1st day of January, 1878, at 18 per cent, per annum, payable monthly, the better to secure the payment thereof, did pledge, mortgage, and transfer to the said Rock Hill Manufacturing and Industrial Association the said*157 bond and mortgage executed to him by the said W. R. Davie as aforesaid for the purchase money of the portion by him sold to said W. R. Davie; and the said debt of Allen J. Davie to the Rock Hill Manufacturing and Industrial Association still remains due and unpaid, with interest as aforesaid.
“W. R. Davie found himself unable to pay for the interests of his co-tenants in Landsford which he had purchased, and in 1879 the parties agreed with him to rescind the same. Accordingly, in 1880 releases from W. R. Davie to John M. Davie and Mary F. Woolf were duly executed, recorded, and dated 31st March, 1879, which conveyed to them respectively, and reinstated them in the estates formerly held by them in said land; and on the 15th day of December, 1880, Mary F. Woolf sold and conveyed her one-fifth interest in said land to Allen Jones, and on the 18th December, 1880, John M. Davie in like manner sold and conveyed his one fifth share in the said lands to Thomas C. Robertson, whereby those interests became vested in them respectively. At the same time that the releases were made by William R. Davie to Mrs. Woolf and John M. Davie, a similar release by him duly executed was delivered with them to Mr. Edward Mc-Crady, jr., releasing and conveying to Allen J. Davie his former estate in said lands, but said release was never delivered to Allen J. Davie, having been destroyed by accident while in possession of General McCrady. Another release was after prepared in the same form and delivered to Allen J. Davie by General McCrady unsigned, and was never executed.
“Allen J. Davie resided in Texas, but after these releases had been executed, he returned to this State and resided at Landsford with W. R. Davie, farming and enjoying an interest in a mill thereon until November, 1880, when he bargained his interest in Landsford to Allen Jones for the sum of one thousand dollars in cash, and the assumption by said Jones of his debt to the building and loan association, or the Rock Hill Manufacturing and Industrial Association, as more properly called. This debt was for the sum of six hundred dollars, with interest from the 1st day of January, 1878, payable monthly, and was secured by the pledge and transfer of W. R. Davie’s mortgage to Allen J. Davie on his share of Landsford. The bargain was complete, and nothing re*158 mained to be done but the payment of the money and the execution of the title deed, when Allen J. Davie suddenly died on the 18th day of November, 1880. These negotiations were made known to W. R. Davie, and no notice was given to Allen Jones that the legal title was not in Allen J. Davie. William R. Da-vie, John M. Davie, and Mary F. Woolf were the heirs at law of Allen J. Davie.
“The tenants of the land residing in this State were all desirous of acquiring the interest of Allen J. Davie, and retaining it to some one or more of them, in order that they might have the control of it without the intervention of any stranger. There was ■upon the place a most valuable water power, which they desired and hoped to have developed by capitalists seeking investments of that character, and from which they expected most pi’ofitable results, and the control of the property among themselves, acting harmoniously as relations and friends, would promote what they regarded as the common interests of all. They were also actuated by a desire to relieve William R. Davie from his embarrassments, and if possible secure to him the enjoyment of his share of the estate upon which he resided. Accordingly, Thomas C. Robertson purchased the undivided 5th part of Landsford of John M. Davie, and the same was duly convejmd to him by deed bearing date the 18th day of December, 1880, which was duly recorded. And on the 15th day of December, 1880, Allen Jones purchased and had conveyed to him by proper deed the undivided interest of 1-5 part of said land of Mary F. Woolf, which deed was duly recorded. And subsequently, on the 3rd day of February, 1881, Allen Jones and Thomas C. Robertson acquired the interests of Mary F. Woolf and John M. Davie, as heirs at law of Allen J. Davie in said lands, by their deed of that date duly executed and for valuable considerations, which deed was also duly entered of record.
“Allen J. Davie, in his life time, to wit, 12th October, 1877, had assigned the mortgage made to him by William R. Davie, to secure the purchase money of his share of the land sold by him to William R. Davie, to the Rock Hill Manufacturing and Industrial Association, to secure his note to them for $600, and a judgment had been obtained against William R. Davie and himself*159 by Poole & Hunt, of Baltimore, and other judgments had been obtained against William R. Davie, to wit: In favor of James R. Seeley, J. I. Middleton & Co., Poole & Hunt, Texas Lumber Co., and W. L. Edwards. After the death of A. J. Davie, it was ascertained that there was no release on record to him from William R. Davie, and the parties interested were much concerned about the best method of securing the legal title to his share in the estate. After consulting with Gen. McCrady, and considering whether it was best to foreclose the mortgage held by the Rock Hill M. & I. Association, Allen Jones assumed and guaranteed the .payment of their claim, and with Thomas C. Robertson purchased and obtained control of the judgments against Allen J. Davie and William R. Davie, and the interests of the said W. R. and A. J. Davie were sold under the executions against them and bought in by Allen Jones with the knowledge and approval of all the pai’ties, Gen. McCrady being present advising and co-operating with him at the sale.
“On the 25th day of May, 1881, Allen Jones declared in writing, in a letter to Gen. E. McCrady, jr., certain trusts upon which he held the property purchased by him at sheriff’s sale as aforesaid, which he stated to have been created in pursuance of an agreement made between him and William R. Davie before the sale. He declares as follows: ‘I w'ant it to be well understood that I am holding one-fifth interest in the five hundred acre mill tract in my name, but it really belongs to Col. Davie, and I am ready at any time to transfer it as you direct.’ It appears that he was directed to convey the said interest to Henrietta C. Davie, and she is regarded by Allen Jones to be entitled to said interest dmder this trust. Gen. McCrady, as has been said, was present at the sale to Jones by the sheriff, and was advising and co-oper-ating with him: In these proceedings he was confided in as the friend and legal adviser of Allen Jones and Thomas C. Robertson, though he was especially charged with the interests of Mrs. M. F. McCrady and W. R. Davie and represented them. He was never paid anything as the attorney of Jones and Robertson, except that once he received from them a portion of his travelling expenses.
“Allen Jones and T. 0. Robertson either assumed the payment*160 of money or advanced it for the purpose of paying for or procuring the control of the judgments necessary to enable them to satisfy the bids upon the land, but afterwards Gen. McCrady negotiated a loan from Pelzer, Rodgers & Co. for two thousand dollars, and sent seventeen hundred and ninety-five dollars and ■fifty cents to Allen Jones to relieve him in regard to the amount he had paid out in the aforesaid purchases, and claims to have properly accounted to him for the remainder of said loan. This loan was secured by the bond of Henrietta C. Davie, wife of William R. Davie, dated March 5th, 1881, and a mortgage on her interest in the estate conveyed to her by Allen Jones, as hereinafter stated, and also by a note of Allen Jones, T. C. Robertson, W. R. Davie, and Edward McCrady, jr. The sheriff made and delivered to Allen Jones two several deeds, conveying to him by separate deeds the interests of Allen J. Davie and W. R. Davie, in pursuance of the sales by him made as aforesaid. Whereupon Allen Jones, with the approval of Gen. McCrady, conveyed to Henrietta C. Davie, wife of W. R. Davie, one undivided fifth part of said Landsford plantatipn, ‘saving and excepting therefrom five hundred acres on Catawba River, lying around and adjoining the mill site and canal, as the same shall hereafter be laid out conveniently thereto.’ The consideration named in said deed is $2,000. This is the interest described in the mortgage of H. C. Davie to Pelzer, Rodgers & Co., as above mentioned. Early in January, 1881, Allen Jones and T. C. Robertson formed a co-partnership for the transaction of business as merchants at Rock-Hill, but their purchases of interests in this land were made individually and not as copartners.
“In 1880, J. M. Davie and Mary F. Woolf commenced an action for the partition of said land against W. R. Davie, Mrs. M. F. McCrady, and Allen J. Davie, defendants, stating in their complaint that each of the parties was seized of an undivided fifth interest in fee in the said property, to which W. R. Davie, Allen J. Davie, and Mrs. Mary F. McCrady, the defendants, put in their answer, drawn by Gen. McCrady, admitting the facts stated in the complaint to be true, and abiding the decree of the court upon the same, the answer being signed by the parties in their own proper persons, the same bearing date August 28th, 1880.*161 On the 30th July, 1880, Gen. McCrady wrote Mr. Hemphill in relation to said suit, saying: ‘I believe A. J. Davie is now the owner of his 1-5 interest. At the time W. R. Davie executed the releases to Mrs. Woolf and J. M. Davie, he executed also a release to A. J. Davie, who was then absent, and left the then releases in my hands as an escrow. After A. J. Davie’s return, I delivered them all to him, and he accepted the delivering of the others as agent, and, as I understood, accepted his own at the same time. At any rate, the deed was executed to him, and is in his possession, and I think the best way will be to allege that he is owner and make him a party.’ In a letter to Mr. Hemp-hill, the attorney of plaintiffs in said suit, he wrote on July 27th, 188U: ‘You have omitted A. J. Davie as a party. You thus have only 4-5ths represented. He is the owner of another l-5th, which l-5th is encumbered by a mortgage,’ &c.
“Among the encumbrances on the estate taken up by Allen Jones was a mortgage of two acres of the land which had been purchased by W. R. Davie for the benefit of the estate from one Davidson, who was in possession of them, to secure which W. R. Davie had given a mortgage on the two acres of land and also one on a mill and machinery then on the place, but was subsequently removed by W. R. Davie to another part of the land. For this Allen Jones paid five hundred and fifty dollars.
“On the 30th July, 1881, Gen. McCrady prepared and sent to Jones & Robertson an abstract of title to the Landsford estate, in which it was stated that the interests of the parties therein were as follows, to wit: Mary F.- McCrady, 3-15; Allen Jones, 4-15; T. C. Robertson, 4-15; Henrietta C. Davie, 4-15. This statement is in contravention of the claim of Robertson & Jones, and neither of them made known any objection to this statement to Mr. McCrady or the other parties. The purpose of the abstract was to furnish a statement, to be shown by Robertson to parties treating with him for the water power for an interest therein, of the disposition of which T. C. Robertson then had charge. This is claimed by the plaintiff to operate as an estoppel against any claim contrary to the statements contained in the abstract of title.
“On the 12th day of October, 1877, Allen J. Davie being in*162 debted to the Rock Hill Industrial Association by his note for the sum of six hundred dollars, with interest .from the 1st day of January, 1878, at 18 per cent, per annum, payable monthly, the better to secure the payment thereof, he did- pledge, mortgage, and transfer to the said Rock Hill Manufacturing and Industrial Association the said bond and mortgage executed to him by the said W. R. Davie as aforesaid for the purchase money of his share of Landsford by him sold to said W. -R. Davie; and the said debt of Allen J. Davie to the Rock Hill Manufacturing and Industrial Association still remains due and unpaid, with interest as aforesaid, and in their answer herein the said Rock Hill Manufacturing and Industrial Association ask for judgment and for foreclosure, &c.
“On the first day of February, 1886, the defendants, Jones & Robertson, made their promissory note, whereby they promised to pay to Pelzer, Rodgers & Co., on the 1st day of December, 1886, the sum of five thousand dollars, for value received, and on the same day Allen Jones, a member of said firm of Jones & Robertson, in order to secure the payment of said note, executed and delivered to said Pelzer, Rodgers & Co. his deed, and thereby conveyed, by way-of mortgage to the said Pelzer, Rodgers & Co., one equal undivided fifth part or share in the said Landsford estate described in- the complaint, subject, however, to the encumbrance of the mortgage above mentioned, executed by W. R. Da-vie to Allen J. Davie, and by him assigned to the Rock Hill Manufacturing and Industrial Association; and no part of said note and mortgage has been paid, and they pray in their answer for the sale of the premises mortgaged, and the application of the proceeds to their debt after first satisfying the mortgage debt due to the Rock Hill'Manufacturing and Industrial Association as aforesaid.
“On the first day of May, 1881, W. R. Davie, Edward Me-Crady, jr., Allen Jones, and T. C. Robertson executed and delivered their bond of that date, conditioned for the payment to M. F. Davie of the sum of two thousand dollars one year after 'the date thereof, with interest from date, payable semi annually on the first day of May and the first day of November; and on the 5th day of March, 1881, Henrietta C. Davie executed and*163 delivered to Edward McCrady, jr., her bond in the penal sum of four thousand dollars, conditioned for the payment of two thousand dollars one year from the date thereof, with interest from the date. And the said Henrietta 0. Davie, in order to secure the payment of said bond, executed and delivered to- the said Edward McCrady her mortgage, dated the same day, of all that undivided fifth part of the plantation known as Landsford, excepting, however, therefrom five hundred acres thereof on the Catawba River, lying around and adjoining the mill site and canal, as the same shall hereafter be laid out conveniently thereto; and the said bond and mortgage of the said H. C. Davie to the said Edward McCrady were duly assigned by him to the said Mary F. Davie as collateral security to secure the bond of W. R. Davie, Edward McCrady, Allen Jones, and T. C. Robertson to the said M. F. Davie above described.
“On the 6th day of December, 1883, Allen Jones gave his note to J. I. Middleton & Co. for seven thousand five hundred dollars, payable on demand, and to secure the same he executed and delivered to the said J. I. Middleton & Co. a mortgage of the undivided one-fifth interest in the Landsford property, the subject of this action, conveyed by M. F. Woolf to the said Allen Jones December 18th, 1880. And qgi the 6th day of December, 1883, T. C. Robertson made and delivered to the said J. I. Middleton & Co. his note for seven thousand five hundred dollars, payable on demand, and to secure the same, on the same day the said T. C. Robertson executed and delivered to the said J. I. Middleton & Co. a mortgage of the undivided one-fifth interest in the said Landsford property conveyed by J. M. Davie to the said T. C. Robertson December the 18th, 1880. On the 21st December, 1887, the defendant, Skipwith Wilmer, trustee of J. I. Middleton & Co., being duly authorized and empowered so to do, transferred and delivered the two notes and mortgages next above described to the defendants, John R. London and A. Eugene Hutchinson, for value, to secure them against any loss or damage by reason of their endorsements for the said Allen Jones and T. C. Robertson by the said London and Hutchinson, amounting to the sum of ninety-three hundred and eighty-eight and ninety-five one-hundredths dollars, payable on or about the 4th day of May,*164 1888, with interest after maturity at eight per centum per annum.
“On the 1st day of November, 1885, the firm of Jones & Robertson was indebted to J. B. E. Sloan & Son, defendants herein, in the sum of three thousand five hundred and ninety-five 88-100 dollars, payable that day, and on the 19th day of March, 1886, the said indebtedness still remaining due and- unpaid, the said Allen Jones, the defendant, a member of the firm of Jones & Robertson, in order te secure said indebtedness, executed and delivered to the said J. B. E. Sloan & Son his mortgage deed, whereby he released and conveyed to them, their heirs and assigns,- ‘all his right, title, claim, and interest in and to an undivided one-fifth (1-5) part of a parcel or tract of land, situated on Catawba River, in the County of Chester, in said State, and known as the Landsford Water Power tract, containing in the whole five hundred acres, more or less, as per survey made by J. M. Stewart in April, 1882, the same being a part of a tract of three thousand acres, more or less, originally owned by Gen. W. R. Davie. My said right, title, interest, and claim in and to said undivided one-fifth part of said Landsford Water Power tract being only as follows: In accordance with an agreement previously made writh W. R. Davie, o^Chester County, S. C., I purchased and received title to the same from the sheriff of said County of Chester (who sold the same at public sale under executions against the said W. R. Davie); and I am to hold said title to the same as security for the money advanced for and due by the said W. R. Davie to me, and which said indebtedness amounts at this date to the sum of one thousand six hundred and sixty-five 06-100 dollars ($1,665.06), and upon the payment of which said sum by the said W. R. Davie, he is entitled under said agreement to receive an unencumbered title to said undivided one-fifth part of said Landsford water power tract’ — which said mortgage was duly recorded in said county and State on the 22nd March, 1886. The following payments wére made on said mortgage debt: November 23rd, 1886, $55; January 29th, 1887, $50.
“On the 25th day of June, 1887, under an order of the Court of Probate of Chester County, William R. Davie, the adminis*165 trator of Allen J. Davie’s estate, sold the right, title, and interest of said Allen J. Davie in and to the bond of said William R. Davie to said Allen J. Davie for the sum of $3,400, dated 18th November, 1876, given for the purchase by said- William R. Davie of the 1-5 interest of said Allen J. Davie in Landsford,. secured by a mortgage of the said 1-5 interest in Landsford, executed by said William R. Davie to said Allen J. Davie. Said bond and mortgage were purchased at said sale by Edward Mc-Crady, jr., for the sum of $25, and in consideration of said sum were assigned and conveyed to the said Edward McCrady on the 1st day of August, 1887, by the deed of said William R. Davie. The second above entitled action herein was brought to foreclose the said mortgage and to enforce the payment of said bond, but only to the extent of 1-3 part thereof, subject to the claim of the building and loan association, for which it stands as security. In the purchase -and negotiations for the interest of Allen J. Davie, it was considered that said bond and mortgage were satisfied between the parties, except as to the building and loan debt, and Allen Jones and T. C. Robertson were so advised by Mr. Edward McCrady.
“While the present action was pending, the issues herein were, by agreement of all parties, referred to arbitration, and an award was made by the arbitrators on the 4th day of August, 1887, but the plaintiffs objected to the same, and it was not confirmed by the court, because not referred under a rule of court. The testimony taken for the purposes of said arbitration was used at the present hearing of the case with other testimony. Subsequently to said award the defendants, by leave of court, filed a supplemental answer, in which they sought to set up the award and have it carried out, said answer being in the nature of a bill for specific performance of contract.
“On the 26th day of March, 1885, William R. Davie, being indebted to Jones & Robertson on account for advances made by them to him, made and executed to them his promissory note, bearing that date, in the sum of sixteen hundred and sixty-five 6-100 ■dollars, with interest from date until paid at the rate of ten per centum per annum, payable December first next after date— which note was assigned to J. B. E. Sloan & Son by said Jones*166 & Robertson, and is now held by them as hereinbefore stated, and is due and payable to them in accordance with said assignment as set up and claimed by said J. B. E. Sloan & Son in their ansjver herein.
“Mary F. Davie, since the commencement of this action, has departed this life, and her interests herein are represented by her executors, Fred. G. Fraser and Alwyn Ball. The property involved in these proceedings is not susceptible of partition in kind.
“At the trial of these cases, a motion was made in the first case for the appointment of a receiver to take charge of the real estate subject to the action, until the final determination of the matters in difference. I am satisfied, from the affidavit submitted in support of the motion, and from the pleadings and testimony herein, that this is a proper ease for a receiver, for the parties do not agree among themselves as to the extent of their several interests as co-tenants, and W. R. Davie, who claims an interest, is in possession and seemingly insolvent.
“In accordance with the conclusions of fact embodied in the foregoing statement, I conclude, as matter of law, that the title to said Landsford property is vested in the parties entitled as tenants in common, as follows, to wit:
1. “Mary F. MeCrady, the plaintiff, is seized of one undivided fifth part of the whole, free of encumbrance.
2. “Henrietta C. Davie, under the deed of Allen Jones to her, hereinbefore described, is seized of one undivided fifth part of the said property, excluding the water power tract of five hundred acres, more or less, as surveyed by J. M. Stewart. She is also entitled, in accordance with the trusts herein declared by Allen Jones, to one-fifth interest in the water power tract, the legal title to which is in Allen Jones.
-3., “Allen Jones is seized of two undivided fifths of the whole, and also, in addition thereto, to one undivided fifth part of the water power tract.
4. “Thomas C. Robertson is seized of an undivided fifth part of the whole.
5. “The undivided fifth interest in the whole property, exclusive of the, water power tract, is in Henrietta C. Davie, subject to the mortgage to Mary F. Davie hereinbefore described, recited*167 and found and set up in the answer of the executors of the said Mary F. Davie, Frederic G. Fraser and Alwyn Ball.' The undivided fifth interest in the water power tract to which Henrietta C. Davie is entitled, is subject to the payment of the real amount •due by William R. Davie upon his note of sixteen hundred and sixty-five dollars and six cents ($1,665.06), described.in the mortgage to J. B. E. Sloan & Son, and set up by their answer, after a settlement of the accounts between W. R. Davie and the said Allen Jones or Jones & Robertson, and also subject to any balance that may be due Jones & Robertson by W. R. Davie.
7. “The undivided fifth interest in the whole'property is in T. ■C. Robertson, subject to the payment of the amount due on his •mortgage to J. I. Middleton & Co., to be paid to the persons now-entitled to and holding said mortgage.
8. “The undivided fifth of Allen Jones in the whole property is subject to the payment of the amount due on the Middleton mortgage to the real holders and owners thereof. The undivided one-fifth interest of Allen Jones in the whole property is subject, first, to the debt due by Allen J. Davie to the'Rock Hill Manufacturing 'and1 Industrial Association, to secure which it holds the bond and mortgage set out in its answer, and then to the mortgage held by Pelzer, Rodgers & Co., as set out in their ‘answer.
■ “It is ordered, adjudged, and decreed, that the parties are entitled as tenants in common of the said property in the interests and proportions hereinbefore set forth, but the same being incapable of partition in kind, it is ordered and adjudged, that the said Landsford estate be sold by John C. McFadden, clerk of the-court, on salesday in April next, or some, convenient salesday thereafter, after having first duly advertised the' same. That the wrater power tract be sold separately, and the remainder of said land be sold in such parcels as may be most conducive to the interests of the parties entitled. That the said clerk shall have power to have the separate parcels of the whole tract ascertained by a survey, and for this purpose he is empowered to employ the services of one or more competent surveyors.
. “That the said sale be made upon' the following terms, to wit: .one-third (J) cash, and the balance on a credit of one and two*168 years in equal instalments, with interest from the day of sale, to be secured by the purchaser’s bond and a mortgage of the purchased premises, with leave to him to pay his entire bid in cash. That if it shall appear desirable to a majority of the parties in interest, respect being had to the amount and value of said inter-, ■est, that the said sale or sales be postponed to the next autumn, and they shall signify such desire in writing to the said clerk (said writing to be attached to this decree), the said sales may be postponed accordingly, unless otherwise directed by the court.
“The proceeds of said sales to be distributed and paid out by the said clerk to the parties entitled in accordance with their respective interests hereinbefore set forth and declared, first, however, paying therefrom the cost of these proceedings and the expenses of sale. That it be referred to the said John C. McFadden, as referee, to ascertain and report the amounts due upon the, several mortgages and other encumbrances on the said property as herein established, and all matters of account herein between the various parties affecting in any way the interest hereinbefore adjudged. That in order to avoid further delay, the said report •and any exceptions thereto may be heard and determined at chambers, and such determination when made shall stand as a part of this judgment.
“It is ordered, that George W. Gage, Esquire, a counsellor of this court, be and is hereby appointed receiver, pending the continuance of the litigation herein. That all the rents and profits from the said real estate now due, or that have arisen since the hearing at the summer term of 1888, and that have not been divided between the parties, be paid over to the said receiver, and that from and after this date and until final settlement of all the issues in this action, the said receiver do contract for and receive all the rents and hold the same subject to the further order of this court. That before entering upon the duties of his office as receiver, the said George W. Gage do enter into an undertaking in the sum of five thousand dollars to the said clerk of the court, secured to his satisfaction, for the faithful discharge of his duties as receiver.
“It is further adjudged, that said Edward McCrady, junior, is •estopped by his relations to the parties herein, and his conduct*169 and representations in regard to the interest of Allen J. Davie ip the premises, and cannot set up the mortgage which forms the subject of the second action hereinbefore stated. And the said action is adjudged to be dismissed, and that the costs thereof be paid by the said Edward McCrady, ir., the plaintiff therein.
“J. B. KERSHAW,
“January 25th, 1890. Presiding Judge.”
Notices were served upon the parties of the filing of this decree on 80 January, 1890, and on the 8th day of February, 1890, notices of intention to appeal from Judge Kershaw’s decree by Henrietta C. Davie, William R. Davie, and Edward Mc-Crady, junior, were served. On the 4th day of March, 1890, his honor, Judge Norton, filed the following order in these causes : “It appearing that the defendants, William R. Davie and Henrietta C. Davie, have appealed from the judgment of Judge Ker-shaw herein, filed 27 January, 1890, directing the division and sale of the real property sought to be partitioned herein, and that the receiver appointed under said judgment has entered into the undertaking required, and has entered upon the discharge of his duties and taken charge and control of the property ; now, on motion of T. W. Bacot for the said William R. Davie and Henrietta C. Davie, defendants, appellants (due notice of this motion having been served on the other side, who have not appeared), it is ordered, that the execution of the said judgment be stayed without any undertaking or security of the said defendants, appellants, or either of them.”
On the 10th day of March, 1890, Henrietta C. Davie served upon the other side twenty exceptions to the decree of Judge Ker-shaw, William R. Davie served two exceptions, and Edward Mc-Crady, the younger; served one exception to said decree, and as these exceptions will hereafter be considered, they are not reproduced at this point, but will appear hereinafter.
On 1st March, 1890, John C. McFadden, as referee, filed his report, in obedience to the direction of Judge Kershaw’s decree, accompanied by the testitaony taken before him, and the defendant, William R. Davie, served his exceptions thereto. This report of the referee came on to be heard by his honor, Judge'Nor
‘‘Upon hearing the report of John C. McFadden, Esq., clerk of said court, made and filed in the above stated cases 1st March, 1890, and the exceptions filed thereto by William R. Davie, Edward McCrady, jr., and Henrietta C. Davie, and the argument of Thomas W. Bacot, Esq., in support of said exceptions, and the argument of C. E. Spencer, Esq., contra, at the regular spring term, 1890, and after due consideration, it is ordered and adjudged, that all of said exceptions be overruled, except as hereinafter provided; that the said report be confirmed as the decree of this court, except so far as the same is hereinafter modified, and that the various parties for whom this confirmation is made be forthwith allowed to enter judgments agreeably to the terms of said report. It appears from said report that at the date thereof the amounts due to the respective parties interested are as follows : To the Rock Hill Manufacturing and Industrial Association the sum of fifteen hundred apd fifty-eight 28-100 (1,558.28) dollars. To Mrs. Mary F. Davie the sum of two thousand two hundred and sixty-eight 91-100 dollars ($2,268.91). To John R. London and A. E. Hutchinson the sum of ten thousand seven hundred and fifty-nine 73-100 dollars ($10,759.73). To Pelzer, Rodgers & Co. the sum of six thousand one hundred and thirty-seven 50-100 (6,187.50) dollars. On the note of W..R. Davie to Jones & Robertson, now owned by J. B. E. Sloan & Son (to whicli reference will be made further on), the sum of twenty-five hundred and thirty-four 17-100 (2,534.17) dollars.
“The court is of the opinion that as between the defendant, William R. Davie, and his co-defendants, Jones & Robertson, the decree of his honor, Judge Kershaw, filed 27 January, 1890, contemplated and required that the real amount of the aforesaid $1,665.06 note of William R. Davie to Jones & Robertson be ascertained by inquiry into the items of its consideration. It is ■therefore ordered, that said clerk do inquire and report the real amount due upon said note accordingly. But it appears that this note was placed in the hands of the said Jones & Robertson by the said William R. Davie as a basis of credit, to be used by them as security, and as it was transferred to their co-defendants,*171 J. B. E. Sloan & Son, to that end, and as the debt of the former to the latter then exceeded and still exceeds the amount of said collateral, this inquiry shall be without prejudice to the said J. B. E. Sloan & Son to proceed to enter their judgment herein just as if the clerk’s report were confirmed in every respect, as to whom it is hereby confirmed. The clerk has reported upon all other matters of account between the said W. R. Davie and Allen Jones and Jones & Robertson, and the testimony sustains his 'findings. But as the result of the reference may affect said findings by reducing the $1,665.06 note and so furnishing a discount to the amount reported as due to Jones & Robertson ($999.55), it is ordered, that the said Jones & Robertson be not allowed to enter judgment for the said amount so found to be due them ($999.55), until the coming in of the clerk’s report hereby ordered to be made under this decree.”
Notice of the filing of this decree was served upon the parties ’on the 28th April, 1890, and on the 1st May, 1890, notice of intention to appeal from Judge Norton’s decree was served By William R. Davie, and on the 28th May, 1890, he served two exceptions thereto. As the same will be taken up hereafter, they will be reproduced then.
On the 18th June, 1890, John C. McFadden, as referee, filed his report, as required by Judge Norton’s decree, together with the testimony taken by him. By such report he finds that W. R. Davie is due Jones & Robertson on the $1,665.06 note, $1,-493.68, and inasmuch as the interest on this amount up to the 'date of his first report would make the true sum due on the $1,-'665.06 at that time $2,273.33, instead of $2,534.17 — a difference of $260.84 — this difference must be credited upon the $999.-:55 due by W. R. Davie to Jones & Robertson, as the note for $2,534.17 (where the credit belongs) has passed from Jones & Robertson to Sloan & Son: To this report William R. Davie duly excepted, and such report and exceptions came on to be Feard by Judge W. H. Wallace, who made the following decree:
“This matter is before me upon the exceptions of W. R. Davie to the second report of John C. McFadden, Esq., special referee, ■filed June 18th, 1890. The first exception is overruled. I am "of the opinion that the burden of proof was upon W. R. Davie*172 to show errors in the items which went to make up the note. But even if it was upon Jones & Robertson, the same as if the note had never existed, the account has been properly established so far as it has been allowed by the referee. The books of original entry were destroyed, and that admitted of secondary proof, and whilst it is true that if such proof or evidence from the other side shows that some of the items charged were ‘drafts’ or ‘orders,’ further proof should be offered to establish them, yet the exceptions do not point out any such items. But W. R. Davie at the reference did point out certain objectionable items, and ordinarily the presumption would be that he had no other objections to urge. His counsel contends that this was done to facilitate the reference, and that it was intended to be a waiver as to the other items. Granted; but that does not relieve him of the necessity of pointing by exception which of these other items he objects to as unproved.
“The second exception is overruled. I am satisfied from the letter of the referee, exhibited to me, and here directed to be filed, that Mr. Jones explained the two items here complained of to the referee’s satisfaction. The third exception is also overruled. I cannot say that the amount of the items excepted to is fixed contrary to the evidence. It is ordered, that the said report stand confirmed in all respects as the decree of this court.”
We have thus outlined the legal history of these causes, to the end that the many exceptions may be appreciated and intelligibly passed upon. Upon reflection, we have concluded to consider the questions presented for our decision in the following order: First. Respondents’ motion to dismiss the appeals. Second. The appeal from Judge Witherspoon’s order allowing defendants to file supplemental answers. Third. The appeal from the decree of Judge Kershaw. Fourth. The appeal from Judge Norton’s decree. Fifth. The appeal from Judge Wallace’s decree.
First. The respondents seek the dismissal of all the appeals here, except that taken from the decree of Judge Wallace of 5 July, 1890, upon the following grounds :
1. As to the order of Judge Witherspoon, filed 27th February, 1888: because, after the service of the notice of appeal therefrom
2. As to the decree of Judge Kershaw: because it was final as to the second action (Edward McCrady, plaintiff, v. William R. Davie et al.) entitled as above. And because it was final as to every issue arising in the first action entitled above (Mary F. McCrady v. Allen Jones et al.), except the indebtedness of the said W. R. Davie to the respondents, Jones & Robertson, and yet after the notice of appeal therefrom, served on the 8th day of February, 1890, by the said Henrietta C. Davie, W. R. Davie, and Edward McCrady, jr., and after the serving of their exceptions thereto on the 10th March, 1890, no further action was taken to perfect said appeal until August 13, 1890, when the general notice of appeal was served as aforesaid, and along with it certain exceptions as aforesaid and appellants’ proposed “Case” as aforesaid.
3. As to the said decree of Judge Norton : because it was final as to every issue involved in the first action entitled as above (Mary F. McCrady v. Allen Jones et al.), except the question of the said W. R. Davie’s indebtedness to the said Jones & Robertson, as to which question it was final so far as all the parties herein were concerned, except as between the said W. R. Davie and the said Jones & Robertson, in which respect it was left open, and especially was it final as to the respondents, J. B. E. Sloan & Son; yet after the notice of appeal therefrom, served on the 28 April, 1890, by the said W. R. Davie, and after serving his exceptions thereto on the 1st May, 1890, no further action was taken to perfect said appeal until August 13, 1890, when the
Fortunately, this court has already in several cases passed upon this question. In Hyatt v. McBurney, 17 S. C., 150, this court said: “Now7, one of the incidents which belongs to an appeal from a final judgment is the power which is conferred on this court by the proviso to section 11 of the Code to review on such appeal any intermediate decree or matter which may have led to or affected such judgment. This review, as it will be observed in reading the proviso, is not a right conferred upon the parties, so much as it is a power given to this court, and it is a very important and necessary power. Without it, appeals would be multiplied, causes delayed, and this court, being unable to look into the very matters which may have caused errors in the final judgment, rendered powerless to correct them. The decree of Judge Kershaw is a final decree'of the Circuit Court. Mrs. Carson has complied with the act of 1878, by giving notices within ten days of her intent to appeal, and by the preparation of the other papers required by that act. This brings the appeal properly before this court. When here, though she did not appeal from the intermediate decree of Judge Pressley, yet if it has affected the final judgment of Judge Kershaw, under the proviso of section 11, we have the power to review it.” So, too, in Lee v. Fowler, 19 S. C., 607, where Judge Fraser rendered the intermediate decree to which no notice of appeal was given, yet when Judge Cothran rendered a final judgment, from which an appeal was taken, and in which appeal an exception was made to Judge Fraser’s intermediate decree, and the respondent in this -court sought to deny the appellant the right to question the intermediate decree, the court promptly said: “It would have been more in accordance with safe practice if the defendant had at
Also, in Thatcher & Co. v. Massey, 20 S. C., 547, this court held: “The respondent denies the right of appellant to have the decree of Judge Pressley reviewed as an intermediate decree, no notice of appeal or exceptions having been filed or given thereto until after the final decree of Judge Hudson. While it would be better practice, for obvious reasons, that exceptions should be filed to the intermediate decree, in view of a possible appeal from the final decree, when,-in such event, it would be proper to have the intermediate decree reviewed, yet under the cases of Hyatt v. McBurney, 17 S. C., 148, and Lee v. Fowler, 19 S. C., 607, the omission to file such exceptions is not a legal error.” In the case of Sullivan v. Latimer, 32 S. C., 284, it seems that Judge Pressley had made an intermediate order, to which the appellant had excepted for the purpose of reviewing such order in this court, Judges Norton and Wallace also made intermediate orders, to which similar exceptions were taken, and Judge Hudson having made an intermediate order, the appellants in that case sought on an appeal from Judge Hudson’s order, not only to review here the last named, but also those of Judges Pressley, Wallace, and Norton, but this court declined to pass upon any other than the exception to Judge Hudson, holding that the exceptions to the other orders must await an appeal from the final decree. In McAfee v. McAfee, 28 S. C., 192, Mr. Justice Mclver uses this very significant language: “It will be observed that in fact there has not yet been any final judgment rendered in the ease, but as no question has been raised either in the record or in the argument here in respect to this, we will not volunteer to do so, inasmuch as, under the view which we take of the case, much unnecessary and troublesome inquiry will be avoided.”
We refuse this motion in all particulars. By this effort the respondents seek to restrict the appellants to the use in this court of only those exceptions that were taken within forty days immediately succeeding notice of the filing of the decrees referred to. The cases already cited, Hyatt v. McBurney (17 S. C., 150), supra, and others, distinctly hold, that while it is the better practice to except to the intermediate decrees at the time of their filing, yet upon failure to do so then, and taking such exceptions to such intermediate decrees or orders within the time fixed by law after the final decree in the cause, will be sufficient to enable this court to pass upon the same.
Seoond. The appeal from Judge Witherspoon's order, filed 27 February, 1888. The following are the grounds of appeal: a. Because his honor erred in holding that the granting of the motion of the defendants, Sloan & Son and Allen Jones, for leave to file the supplemental answers proposed by them would not in effect be reversing Judge Wallace’s order, h. Because his honor erred in holding that there had been no such “step in the progress of the cause, after ,the occurrence of the matters sought to be pleaded, as would preclude the defendants, Sloan & Son and .Allen Jones, from entering the plea contained in their supplemental answers.” e. Because his honor erred in granting “the motion of the defendants, Sloan & Son and Allen Jones, for leave to file their respective supplemental answers.” d. Because his honor, Judge Witherspoon, erred in allowing the supplemental answers of the said defendants, Sloan & Son and Allen Jones, as proposed to be filed, the said supplemental answers actually seeking to interpolate matters wholly between the said William R. Davie and Allen Jones, or rather Jones & Robertson, and entirely ■foreign to the cause of action and the issues in the said action for partition, and seeking to require the said William R. Davie to plead to the allegations of said supplemental answers, although neither the said William R. Davie nor the said Jones & Robertson were parties to the said action, and the said William R. Da-vie had no interest or estate, and disclaimed having any, in the
To avoid this business complication of friends and relatives, an arbitration was agreed upon by all parties. When the award was made, it being favorable to Allen Jones and Thomas C. Robertson on the matters in dispute, and when it was proposed in open court to make it the decree of the court in the case, as the instrument signed by all the parties to the controversy seemed to require, the award was assailed as being beyond the submission of the parties; and while this question was argued before Judge Wallace, the new objection was sprung, that the cause being pending in court, and no rule having been taken therein for such suN mission to arbitration, under a decision of the court of last resort in this State, such award could not be made the judgment of the
After his decision, a motion was made before Judge Wither-spoon, the resident judge of the 6th Circuit, of which Chester County is a component part, for leave to file supplemental answers setting up the award. Such motion was granted by Judge Witherspoon so far as Sloan & Son and Allen Jones were concerned, but denied as to Thomas C. Robertson. In the order granting the motion, Judge Witherspoon refers, though not in terms, to the 188th section of the Code of Procedure of this State as the basis of his action, but at the same time he seems to have had presented to him, as difficulties in the way of granting the motion, the likelihood that such motion might be said to interfere with the order made by Judge WTallace, which had been acquiesced in by all the parties to the action, and, also, some views as to the propriety of the motion, 'derived from the equity practice, that obtained in such matters, viz., that there had been a continuance of the cause on the calendar after the date 'of the award — that there had been a step of progress in the cause after the order was made refusing to confirm the award by granting an order of reference. He decided these points adversely to the plaintiff and the defendant, Mrs. Henrietta C. Davie. Now, the appeal here presents these objections to Judge Witherspoon’s order, with the additional one of a practical character, viz., that such supplemental orders interpolated “matters wholly between William R. Davie and Allen Jones, or rather Jones & Robertson, and entirely foreign to the cause of action,” &c.
This last objection, if it -were sustained, it seems to us, would deny the Court of Equity the right to pass upon the equities of co-defendants. This court has repeatedly held that it is entirely competent to so pass upon the conflicting claims of co defendants. Especially will this be the case when the plaintiff, as in this case, has, by allegations in her complaint, brought about this assertion of conflicting claims amongst the co-defendants. That the an
But over and above all the rules of equity on this subject, we are impressed with the fact, that it is a fixed rule of law by statute in this State, that on motion a Circuit Judge may grant leave to a defendant to file a supplemental answer in two sets of cases, one where facts have occurred since his first pleading was pre-. pared, of which he was ignorant at the time of his first; the other, when a judgment or decree of any court of competent jurisdiction, has been rendered since the commencement of such action, determining the matters in controversy in said action or any part thereof. Section 198 of the Code of Procedure. No one will or does contend that this award was a judgment or decree of any court of competent jurisdiction. It must be pleaded as a fact occurring after the first pleading. These are our views on this matter, and we regret that a pressure of official work will not enable us to devote more time to the development of this branch of the case. These exceptions are overruled.
Third. The appeal from the decree of Judge Kershaw. The grounds are numerous, but are important in character.
1. Because Judge Kershaw erred in not sustaining the demur-1 rers interposed by Mary F. McCrady to the supplemental answers of Sloan & Son and Allen Jones.
2. To the following finding: “W. 11. Davie found himself unable to pay for the interests of his co-tenants in Landsford, which he had purchased, and in 1879 the parties agreed with him to rescind the same. Accordingly, in 1880 releases from W. R. Davie to John M. Davie and MaryF. Woolf were duly executed, and dated 31st March, 1879.”
3. To the following finding: “Allen J. Davie resided in Texas, but after these releases had been executed, he returned to this State and resided at Landsford with W. R. Davie, farming and
4. To the following finding: “The tenants of the land residing in this State were all anxious of acquiring the interest of Allen J. Davie and retaining it to some one or more of them in order that they might have the control of it without the intervention of a stranger. There was upon the place a most valuable water power, which they desired and hoped to have developed by capitalists seeking investments of that character, and from which they expected most valuable results, and the control of the property amongst themselves, acting harmoniously as relatives and friendsy would promote what they regarded as common interest of all. They were then actuated by a desire to relieve William R. Davie from his embarrassments, and secure to him the enjoyment of his share of the estate upon which he resided. Accordingly, Thomas C. Robertson purchased the undivided fifth part of Landsford from John M. Davie, and the same was duly conveyed to him by deed bearing date the 18th day of December, 1880, which was duly recorded. And on the 15th day of December, 1880, Allen Jones purchased and had conveyed to him by proper deed the undivided interest of one-fifth part of said lands of Mary F. Woolf, which deed was duly recorded. And subsequently, on the 3rd day of February, 1881, Allen Jones and Thomas C. Robertson acquired the interests of Mary F. Woolf and John M. Davie, as heirs at law of Allen J. Davie, in said lands, by their deed of that date duly executed and for valuable consideration, which was also duly entered of record.”
5. To the following finding: “After the death of A. J. Davie, it was ascertained that there was no release from William R. Da-
6. To the following finding: “Gen. McCrady, as has been said, was present at the sale to Jones by the sheriff, and was advising and co-operating with him. In these proceedings he was confided in as the friend and legal adviser of Allen Jones and Thomas C. Robertson.”
7. To the following finding: “Allen Jones and Thomas C. Robertson either assumed the payment of money or advanced it for the purpose of paying for or procuring the control of the judgments necessary to enable them to satisfy the bids upon the land; but afterwards Gen. McCrady negotiated a loan from Pelzer, Rodgers & Co. for two thousand dollars, and sent seventeen hundred and ninety-five dollars and fifty cents to Allen Jones to relieve him in regard to the amount he had paid out in the aforesaid purchases, and claims to have properly accounted to him for the remainder of said loan.”
8. To the following finding: “Whereupon Allen Jones, with the approval of Gen. McCrady, conveyed to Henrietta C. Davie, wife of W. R. Davie, one undivided fifth part of said Landsford plantation, saving and excepting therefrom five hundred acres, &c.”
9. To the following finding: “For this, to wit, the Davison mortgage, Allen Jones paid five hundred and fifty dollars.”
10. To the following finding: “In the. purchase and negotiations for the interest of Allen J. Davie, it was considered that said bond and mortgage was satisfied between the parties, except
11. To the following finding: “That the note of William R. Davie to Jones & Robertson for $1,665.06, assigned to J. B. E. Sloan & Son by Jones & Robertson, is due and payable to them, in accordance with said assignment, as set up and claimed by said J. B. E. Sloan & Son in their answer herein.”
12. To the following finding: “The undivided fifth interest in the water power tract to which Henrietta C. Davie is entitled, is subject to the payment of the real amount due by William R. Davie.”
13. To the following finding: “The property involved in these proceedings is not susceptible of partition in kind,” and because his honor therefore ordered “that the water power tract be sold separately, and the remainder of said land be sold in such parcels as may be most conducive to the interest of the parties entitled thereto,” and “that said clerk shall have power to have the separate parcels of the whole tract ascertained by a survey,” &c.
14. To the following finding: “That this is a proper case for a receiver,” and that “William R. Davie, who claims an interest, is in possession and seemingly insolvent,” and because his honor appointed a receiver.
15. Because his honor adjudged as follows: “It is further adjudged, that said Edward McCrady, jr., is estopped by his relations to the parties herein, and his conduct and representations in regard to the interest of Allen J. Davie in the premises, and cannot set up the mortgage which forms the subject of the second action hereinbefore stated. And the said action is hereby dismissed, and that the-costs thereof be paid by the said Edward McCrady, jr., the plaintiff therein.”
16. Because his honor “ordered and adjudged, that the said Landsford estate be sold by John C. McEadden, clerk of the court.”
17. Because his honor sustained the mortgage set up by Pelzer, Rodgers & Co. as a lien on the property, or any part thereof; because he sustained the assignment, or so called mortgage, set up by J. B. E. Sloan & Son, as a lien on the property or any part thereof.
19. Because his honor did not find that William R. Davie has no interest or estate, legal or equitable, in the property.
20. Because his honor did not order a writ of partition to issue at least to the agricultural lands.
21. Because the decision of the Court was not filed with the clerk within sixty days after the term at which the said trial took place. •
22. Because his honor erred in decreeing between this defendant and his co-defendants, Jones & Robertson, and in referring it “to John C. McFadden, as referee, to' ascertain and report the amounts due upon the several mortgages and other encumbrances on the said property as herein established, and all matters of account herein between the various parties affecting in any way the interests hereinbefore adjudged.”
We will now consider these grounds of appeal in their order:
1. When the defendants, Allen Jones and Sloan & Son, served their respective supplemental answers setting up the award of Messrs. Shand and Spencer in the arbitration proceedings, Mrs. McCrady demurred thereto on five grounds: “a. That the award is not in conformity with the terms of the submission, as set forth in the answer, b. That the award is indefinite and uncertain in that it awards that Henrietta C. Davie is seized and possessed of one undivided fifth of said property, not including the water power tract of 500 acres, more or less, as per Stewart’s survey of April, 1882, no such survey being made a part of said award; and in that it directs the water power tract and the remainder of the land to be sold separately without any partition, division, or description of the said water power tract by the said award, e. That it does not appear by the said award that the said C. E. Spencer and R. W. Shand did allot, partition, and divide the plantation in kind among and to the respective parties in interest, or award to sell the said plantation as a whole, according to law and the practice of the Court of Common Pleas in such cases, as provided in the terms of the submission, d. That the award
In Gen. McCrady’s letter of 6 June, 1881, to Dr. T. C. Robertson, he writes : “I was sorry to receive your discouraging letter this morning, but hope you are a little too blue in the matter.
*191 “Loan obtained from Mr. Pelzer on our joint note, $2,000 00
“Less $200 directed to be deducted for rent due M. F. McCrady, $200
“Discount on draft, 4 50 204 50
“$1,795 50”
Thus it is manifest that this $2,000 was fully, finally, and satisfactorily adjusted without any delay, according to the wishes of the parties entitled to the same. As we before said, this is what Judge Kershaw evidently meant. This ground of appeal is dismissed.
9. This is also a finding of fact by the Circuit Judge, and is sustained by the proofs. The appeal is dismissed.
10. This is also a finding of fact by the Circuit Judge, and is sustained by the testimony of some of the witnesses, and under the rule adopted by this court, as hereinbefore indicated, this court will not disturb the finding. The appeal here is dismissed!
11. This'is a finding of fact by the Circuit Judge, and is supported by the testimony. The appeal must be dismissed.
18. We cannot disturb the conclusion of the Circuit Judge in reference to Mrs. Henrietta C. Davie’s rights in the 1-5 of the Landsford property originally owned by Allen J. Davie. We are satisfied therewith as being the logical result of his decisions already considered. This appeal is dismissed.
19. The Circuit Judge could not have found that William R. Davie had no legal or equitable interest in the property, in view of the testimony here adduced. This ground of appeal is dismissed.
Fourth. The appeal from Judge Norton's decree. The following are the grounds of appeal: 1. Because his honor confirmed the report of John C. McFadden, Esq., clerk of said court, made and filed in the above stated cases 1st March, 1890, and overruled the exceptions of these defendants thereto in the following particulars: a. For that said referee reported that William R. Davie is indebted to Jones1 & Robertson in any amount for guano delivered to him through McFadden & Davidson in the year 1885; and further, for that he, the said referee, reported the sum of three hundred and nine 24-100 dollars as the amount of such indebtedness, the amount of such indebtedness (if any) not exceeding $268.40. b. For that said referee reported that the amount due by William R. Davie to Jones & Robertson for balance due on rent of 1886, was $545.50, with interest from January 1st, 1887, making a total due of $666.52. 2. Because his honor, after ordering the said clerk to inquire and report the real amount due upon the $1,666.06 note of William R. Davie to Jones k Robertson, went on to decree that “this inquiry shall be without prejudice to the said J. B. E. Sloan & Son to proceed to enter their judgment herein, just as if the clerk’s report were confirmed in every respect as to whom it is confirmed.”
Fifth. The appeal from Judge Wallace’s decree. 1. Because his honor, Judge Wallace, confirmed in all respects the report of John C. McFadden, Esq., special referee, filed 18th June, 1890, and overruled the exceptions thereto in the following particulars: “For that said referee allowed the items of the accounts generally between William R. Davie and Jones & Robertson without the proper evidence thereof, to wit, the books of original entry of Jones & Robertson, &c., and the drafts or orders of William R. Davie on Jones & Robertson, the referee having allowed the same upon the ledgers of Jones & Robertson alone as secondary evidence.'’ We have examined the report and the testimony upon which Judge Wallace bases this decree. It seems that the books of original entry and the order or drafts of
It is the judgment of this court that all the intermediate decrees herein and the final decree are affirmed, except that the intermediate decree of Judge Kershaw shall be modified as to the costs, so far as Mrs. Mary F. McCrady is concerned, as required by the within opinion of this court.