The opinion of the Court was delivered by
Mr. Justice Gary.
The facts in this case will appear by reference to the decree of his Honor, Judge Benet.
■ The executors of Joseph S. McKenzie appeal from said judgment upon only one exception, alleging that it was “error (under the pleadings and issues thereby made) in adjudging the indenture to be void, and in ordering the same to be delivered to the clerk of the court for cancellation, the relief thus given, not only not having been asked for, but not being within the scope of the action, and the order of the Court thus furnishing the executors no protection whatever, in surrendering the said paper.”
Under the practice prevailing in this State before the adoption of the Code of Procedure, even in a law case, the Court had the right, when an instrument of writing was introduced in evidence, although it was not mentioned in the pleadings, to declare it null and void, in so far as that *503action was concerned. In the case of Maddox v. Williamson., 1 Strob. L,., 23, the Court says: “An assignment, no more than a deed, can, in a court of law, be set aside and cancelled; but when either deed or assignment comes into question in an issue here, it will, if fraudulent and void, be, for the purposes of that issue, regarded as a nullity. Section 3, art. V., of the Constitution of South Carolina, provides: “That justice may be administerrd in a uniform mode of pleading, without distinction between law and equity, they (the General Assembly) shall provide for abolishing the distinct forms of action, and for that purpose shall appoint some suitable person or persons, whose duty it shall be to revise, modify, and abridge the rules, practice, pleadings, and forms of the Courts now in use in this State.” In pursuance of this constitutional requirement, the legislature adopted the Code of Procedure, under whose liberal provisions both legal and equitable issues may be decided in one action. We do not see, therefore, why the Court below did not have the right to declare the indenture null and void, and also to decree its cancellation. It seems to us that, after the Court declared the indenture null and void (which it unquestionably had the right to do), a mere abstract qustion is raised, as to its right to decree that it should be cancelled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.