sales of the property of Carrie A. E. Steinmeyer, as above decreed and directed, be insufficient to pay and satisfy the aforesaid judgment of plaintiffs against Eliza R. Steinmeyer, it is further ordered that the said master do, after due and legal notice, sell at public auction in Charleston, S. C., for cash, the following described real estate, to wit: All that lot of land, with the buildings thereon, situate on the north side of Beaufain street, between Lynch and Gadsden streets, in the city of Charleston, state aforesaid, known and designated as No. 120 Beaufain street, measuring and containing in front on Beaufain street fifty-five (55) feet, on the west line one hundred and twenty (120) feet, on the rear or north line ninety (90) feet, thence on east line running southwardly from the said north line forty-five (45) feet, thence on south line running westwardly thirty-five (35) feet, thence on an east line running southwardly to Beaufain street seventy-five (75) feet, be the said dimensions more or less, butting and bounding to the south partly on Beaufain street, and partly on other lands owned by Eliza R. Steinmeyer, to the west on lands of George W. Egan, to the east on other lands owned by Eliza R. Steinmeyer, and to the north on lands of Mrs. Whitney; and also the right of way in, through, and over an alleyway, of the width of ten feet, extending from Beaufain street northwardly to and along a part of the extreme eastern portion of the rear of the above-described lot. Said lot above described is composed of a lot formerly known as No. 98 Beaufain street, and the rear portion of a lot formerly known as No. 96 Beaufain street, both of which were conveyed, inter alia, to the said Eliza R. Steinmeyer by the late John H. Steinmeyer by deed dated 3d January, 1874. Said lot above described being that described in the complaint in this action, and also in a deed of conveyance, with plat annexed, from the said Eliza R. Steinmeyer to A. Matilda Steinmeyer, dated the 27th day of October, 1893, and recorded in the office of the register of mesne conveyance for the county of Charleston, in Book A22, page 83, on April 30, 1894, or so much thereof as may be necessary to pay the amounts hereinafter directed. That said master execute to the purchaser or purchasers a deed or deeds of the premises sold. That out of the moneys arising from such sale or sales, after deducting the amount of his fees and expenses on such sales, and any lien or liens upon said premises so sold, at the time of such sale, for taxes or assessments, the said master do pay the costs and charges, if any there be, in this action. That he retain in his custody, subject to the further order of this court, the sum of two thousand five hundred dollars ($2,500), with interest thereon at the rate of 7 per centum per annum, payable semiannually, from June 25, 1894. The aforesaid sum is reserved for the payment of any amount found to be due hereafter on a bond, secured by a mortgage of the aforesaid premises, exe

cuted by A. Matilda Steinmeyer in favor of George R. Whitridge on said June 25, 1894. The excess in said sum reserved as aforesaid, if any, above the satisfaction of said bond, to be subject to the further order of this court. That said master do next pay to plaintiffs or their attorneys the sum then due upon their judgment against Eliza R. Steinmeyer, heretofore mentioned in this decree, or so much of the same due on said judgment as the proceeds of sale will pay, take receipt therefor, and file the same with his report of sales, and that he hold the surplus money or proceeds of such sale, if any, subject to the further order of this court. That the purchaser or purchasers be given deeds by the said master upon their compliance with the terms of sale, and that said purchaser or purchasers be let into possession on production of the master's deed or deeds, and a certified copy or copies of this order or orders confirming said master's report on said sales. And it is further ordered and adjudged that all of the parties to this action, and all persons claiming under or any or either of them, be forever barred and foreclosed of all right, title, interest, or equity of redemption, or otherwise, in said premises so sold, or any part thereof.

"(6) That the master in his report herein do state the amount then due, if any, upon the aforesaid judgment of plaintiffs against Eliza R. Steinmeyer, and that said plaintiffs have leave to collect said amount by execution, or otherwise, according to law.

"(7) It is further adjudged that the summons and complaint in this action be, and herein is, dismissed, as against the defendants Wallace M. Plowden, Wallace S. Plowden, Henry C. Plowden, C. A. Plowden, and J. E. Plowden, William F. B. Haynesworth, and B. Pressley Barron, as executors of the last will and testament of Samuel C. C. Richardson.

"(8) And it is further adjudged that the costs and disbursements of this action be paid from the proceeds of the sales herein before directed; that is to say, in this order: First, from the proceeds of sales of property of Eliza R. Steinmeyer, if any, directed to be made by the sheriff; second, from the proceeds of the sale or sales of the property herein described as conveyed to Carrie A. E. Steinmeyer; third, from the proceeds of the sale or sales of the property herein described as conveyed to A. Matilda Steinmeyer. The dominant idea in this decree is the adjustment of the equities existing between co-defendants, to accomplish which the enforcement of the rights of plaintiffs must necessarily be delayed, but that delay must be short; and it is not intended to put plaintiffs, or the officers charged with the enforcement of their rights, to any undue delay, or to expense or litigation, because these equities or rights of codefendants are subject to the rights of plaintiffs, the enforcement of which should be neither hindered nor delayed.

"Lastly, it is ordered that the clerk of this court do, as soon as practicable, deliver cop

les of this decree to Master G. H. Sass and to the sheriff of Charleston county, respectively, for their consideration and action in the premises."

Buist & Buist and Lord & Burke, for plaintiffs. Ficken, Hughes & Ficken, for defendant Eliza R. Steinmeyer.

McIVER, C. J. This action was commenced on the 4th of February, 1897, by the plaintiffs, as judgment creditors of the defendant Eliza R. Steinmeyer, in behalf of themselves and all other creditors of the said Eliza R. Steinmeyer who shall in due time come in and seek relief by, and contribute to the expenses of, this action. The object of the action is to have certain conveyances made by said Eliza R. Steinmeyer to different members of her family, as well as certain mortgages executed by the grantees in such conveyances, set aside, and the property mentioned therein sold, and the proceeds applied to the payment of the judgment in favor of the plaintiffs, and to the claims of all other creditors of the said Eliza R. Steinmeyer entitled to share therein, according to their legal priorities, and also to have the assignment of the bond and mortgage given by the defendant Wallace M. Plowden and his wife, Mary E. Plowden, to James McDowell, executed by said Eliza R. Steinmeyer to said Wallace M. Plowden, set aside, upon the ground that the same was voluntary and without valuable consideration, and that the debt secured by said mortgage be collected, and the proceeds applied to the payment of plaintiffs' judgment, and to the claims of such other creditors of said Eliza R. Steinmeyer as are entitled to share therein, according to their legal priorities. The case was heard by his honor, Judge Aldrich, upon exceptions to the report of Master Sass, to whom it had been referred to hear and determine all the issues in the case. The decree of the circuit judge was filed on the 13th of August, 1898, a copy of which is set out in the "case," which should be incorporated by the reporter in his report of this case. From this decree all of the parties, except Thomas Della Torre, in whose favor the master reported (and there was no exception to that part of the report), appeal, upon the various exceptions set out in the record. We do not deem it necessary to repeat these exceptions here, especially as in several instances the exceptions of the several parties present the same points. We think it better to state the several questions which we understand are raised by the exceptions, and then to inquire whether the circuit judge has erred in determining any or all of such questions. These questions may be stated as follows:

(1) Whether the bonds upon which the claim of the plaintiffs originally rested were based upon valuable consideration, or were mere gratuities from Eliza R. Steinmeyer to the plaintiffs. In view of the fact that these

bonds have been regularly reduced to judgment in an action brought upon them, it seems to us that it is now too late to raise this question, especially in a collateral proceeding like this. But, even if these bonds had never been reduced to judgment, it is very clear, from the undisputed testimony, that these bonds were based upon a valuable consideration, and can in no sense be regarded as gratuities. They were given to secure the payment of a valid debt due by J. H. Steinmeyer, Sr., to the estate of his son, to which the plaintiffs became entitled under the provisions of the son's will. It is true that Mrs. Eliza R. Steinmeyer did not originally owe that debt, but when she signed these bonds she practically became the surety of her husband, who did owe the debt, and she thereby became morally as well as legally bound to pay such debt. But we need not add anything to what the circuit judge says in his decree upon this point. All the exceptions raising the first question must therefore be overruled.

(2) Whether the plaintiffs were guilty of such laches in enforcing their claim as would bar this action. (3) Whether the consent order of the United States court for the resale of the property bid off by Ferguson at the first sale estops the plaintiffs from bringing this action. (4) Whether the indebtedness of Eliza R. Steinmeyer at the time of making the voluntary conveyances was so inconsiderable as to defeat this action. We are entirely satisfied with the views taken by the circuit judge as to the second, third, and fourth questions, and for the reasons stated in his decree we affirm his conclusions. The exceptions raising these questions must therefore be overruled.

(5) Whether the assignment of the Plowden bond and mortgage was based upon a valuable consideration, or was voluntary. We agree with the circuit judge in the view which he takes of this question, and think his reasoning is sufficient to sustain his conclusion. We desire to add, however, that the plaintiffs, in the fifteenth paragraph of their complaint, allege that this assignment purports on its face to be based upon a valuable consideration, and this allegation is admitted in the answer of Mrs. Eliza R. Steinmeyer. But, what is more, the copy of this assignment set out in the "case" shows that it was based upon a valuable consideration. When this is the case the burden of proof is upon the plaintiffs to show that there was no valuable consideration for this assignment, but that burden has not been met. On the contrary, the allegation in the sixteenth paragraph of the complaint, made only upon information and belief, is distinctly denied, not only in the answer of Plowden, but also in the answer of Mrs. Eliza R. Steinmeyer; and the undisputed testimony of Plowden is that there was a valuable consideration for the assignment. The testimony leaves no doubt upon our minds that.

Mrs. Eliza R. Steinmeyer got from her daughter Mrs. Plowden insurance money, to which she was entitled, amounting to more than the debt secured by the mortgage to McDowell; and there is no testimony tending to show that this money was ever repaid, except as a consideration for the assignment in question. The exceptions raising the fifth question must therefore be overruled.

(6) The sixth question is whether the mortgagee, Whitridge, at the time he took his mortgage had such notice as would defeat his right to claim as purchaser for valuable consideration without notice. Here again we agree with the circuit judge in the view which he has taken of this question, and think his conclusion is sufficiently vindicated by what he has said in his decree. We may add, however, that it is quite certain that the testimony fails to show that Whitridge had any actual personal notice. On the contrary, Mr. Whitridge testifies that at the time he took his mortgage he did not know Mrs. Eliza R. Steinmeyer, never had heard of her, and had no knowledge of her affairs; and Mr. Ficken testifies that he never communicated to Whitridge any information which he had previously obtained in reference to the business affairs of the Steinmeyers. Indeed, under the view which he then had, and still has, with reference to the dealings of Mrs. Eliza R. Steinmeyer with her property, there was no reason why he should communicate such information to Mr. Whitridge before or at the time he took his mortgage. It is obvious, therefore, that the only ground upon which It could be claimed that Whitridge had notice is the fact that Mr. Ficken had notice of the condition of affairs, and that his client, Whitridge, must be regarded as having had notice, upon the doctrine that notice to the agent is notice to the principal. But Ficken's knowledge was not acquired while acting as attorney or agent for Whitridge, but was acquired while acting as attorney for other parties, and hence the doctrine does not apply in this case. See Akers v. Rowan, 33 S. C. 451, 12 S. E. 165; Knobelock v. Bank, 50 S. C. 259, 27 S. E. 962. The execeptions raising the sixth question must therefore be overruled.

(7) Whether there was error in holding that the conveyance from Mrs. Eliza R. Steinmeyer to Mrs. Carrie A. E. Steinmeyer was voluntary and without valuable consideration. The exception raising this question, though not abandoned, was not pressed in the argument. But in view of the fact that this conveyance purports on its face to be a voluntary conveyance, and in view of the concurrent finding of the master and the circuit judge, which is fully sustained by the testimony, this exception must be overruled.

(8) The eighth and last question presented is whether there was error in ordering that the lands conveyed to Mrs. Carrie A. E. Steinmeyer should be sold before those conveyed to Mrs. A. Matilda Steinmeyer. We cannot agree with the circuit judge in the view which

he has taken of this question. The conveyances to both of these ladies were purely voluntary, neither of them having paid any valuable consideration. They therefore stand upon the same footing, and neither of them has any prior or superior equity to the other, and they therefore must share ratably in the burden which rests upon their lands. The circuit judge rests his conclusion upon the analogy drawn from the rule that where a mortgagor sells to third persons, at different times, different portions of the mortgaged premises, the first purchaser has an equity to require the mortgagee first to sell such portion of the mortgaged premises as remains in the hands of the mortgagor, if any, and, if that is not sufficient to pay the mortgage debt, then to sell the different portions conveyed to third persons in the inverse order of the sales made by the mortgagor. While there is not entire harmony in the cases elsewhere as to this rule, and it does not seem to have commanded the approval of that great jurist, Mr. Justice Story, in so far as it relates to the equities of the purchasers from the mortgagor (see 2 Story, Eq. Jur. § 1233; Bank v. Creswell, 100 U. S. 630), yet it must be regarded as settled in this state (Stoney v. Shultz, 1 Hill, Eq. 465; Norton v. Lewis, 3 S. C. 25; Lynch v. Hancock, 14 S. C. 66, followed in several other cases). See, also, 3 Pom. Eq. Jur. § 1224. But the equity upon which this rule rests grows out of the fact that the first purchaser from the mortgagor had actually paid his money, looking to the residue of the mortgaged premises as a security for the payment of the mortgage debt; and, as is well said in Stoney v. Shultz, at page 500, "Every subsequent purchase diminished the amount of this security, and operated as a fraud upon the first purchasers." This could not be said of a voluntary donee, who has parted with nothing of value, and cannot be said to be defrauded by the taking from him that for which he has paid nothing, and subjecting it to the payment of his donor's debts. Besides, a majority of this court, in the case of Gordon v. Hazzard, 32 S. C. 351, 11 S. E. 100, declined to apply this rule, in which the analogy was much closer than in the case now under consideration. In that case two bonds, maturing at different dates, were secured by one mortgage. The mortgagee assigned the bond last maturing to one person, and the other bond, first maturing, to another person; and the question was which of the two assignees was entitled to priority. Held, that neither was entitled to priority, but that they must share pro rata in the proceeds of the sale of the mortgaged premises; the same being insufficient to pay both in full. Now, if the "mortgage rule," as it may be called for the sake of convenience, could not be applied to a case very much like in principle, at least, there is still stronger reason why it should not be applied to a case like the present, where there is no valuable consideration upon which to rest the equity which gives rise to

the rule. But, again, there is another analogy which supports the view which we take. In 1 Story, Eq. Jur. § 176, it is said that a court of equity will not grant relief to one claiming under a defective voluntary conveyance against one also claiming under a voluntary conveyance. So, also, the rule is well settled that equity will not enforce the specific performance of an agreement unless it is based upon a valuable consideration. Id. § 793a, and the other sections therein cited; 3 Pom. Eq. Jur. §§ 1293, 1405. We are not aware of any case in this state where the question which we have been considering has been distinctly decided, but counsel for Mrs. Carrie A. E. Steinmeyer have cited us to a case (Thompson v. Perry, 2 Hill, Eq. 213) where the view which we take is plainly recognized. The exceptions presenting the eighth question must therefore be sustained, and in this respect only the circuit decree must be reversed.

The judgment of this court is that the judgment of the circuit court, except upon the point hereinabove stated, be affirmed, and that the case be remanded to that court for such further proceedings as may be necessary to carry into effect the views hereinabove presented.

1. The policy sued on in this case was, under the facts disclosed by the record, a valid instrument, and, as such, binding upon the association by which it was issued.

2. The finding in favor of the plaintiff was fully supported by the evidence, and the trial court committed no error in refusing to grant a new trial.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by A. L. Taliaferro against the Farmers' Co-operative Insurance Association of Floyd County. Judgment for plaintiff. Defendant brings error. Affirmed.

C. N. Featherston, for plaintiff in error. McHenry & Nunnally, for defendant in error.

LUMPKIN, P. J. The constitution of the Farmers' Co-operative Insurance Association of Floyd County contained the following provisions: (1) The object and business of the association shall be the mutual or co-operative insurance of the property of its members; (2) each person granted insurance in the association shall thereby become a member thereof; (3) the affairs of the association shall be under the supervision and control of a board of 15 directors; and (4) every application for insurance, in order to authorize the issuance of a policy, shall be accepted by the unanimous vote of a quorum of such di

rectors. Before the permanent organization of the association, its promoters, through agents, received applications for insurance. Among these was one by Mrs. A. L. Taliaferro seeking a policy, covering both realty and personalty, in the sum of $750. This application, as presented, was approved at a meeting of the promoters. Subsequently, to wit, on the 6th day of April, 1896, a majority of all the persons who had presented applications for insurance held a meeting for the purpose of effecting a permanent organization. On that day, but before the meeting was called to order, Mrs. Taliaferro's application was, at the request of her husband, altered by the agent at whose solicitation it had been presented so as to make the same seek insurance in the sum of $1,150, instead of only $750, and cover additional property. Applications to the extent of $100,000 were essential to a lawful organization. The secretary of the meeting read out a list of all the applications on file, with a view to informing those present that the requisite amount of insurance had been applied for. In so doing, he called the name of Mrs. Taliaferro as an applicant for insurance in the sum of $1,150. It appeared that it was necessary to count her application in order to make up the $100,000, but it was in this respect immaterial whether her application should be considered as one for $750 or for $1,150. The meeting then proceeded to elect officers, including a board of 15 directors, and thereupon adjourned. Later, on the same day, the directors held a meeting at which, as appears from the minutes thereof, "the secretary was instructed to issue [a policy] for each approved application, each policy to bear date April 15, 1896. "The minutes of this meeting of the directors does not, however, show any action by the board of directors expressly approving or disallowing any particular application. Subsequently, the secretary of the association issued and delivered to Mrs. Taliaferro a policy for $1,150 covering the property described in her application as amended, she paying therefor the premium required on a policy for that amount. policy was, as directed, dated April 15, 1896. The next meeting of the directors was held on the day last named. At that meeting, as appears from the minutes thereof, "the secretary reported that policies had been issued to the following named persons," appending a list of 140 names, in which appeared the words, "Mrs. A. L. Taliaferro, for $1,150." The minutes of this meeting further show that a number of matters were definitely acted upon, but are silent as to whether any specific action was taken with reference to the secretary's report. The property described in the policy issued to Mrs. Taliaferro hav ing been thereafter destroyed by fire, she brought her action against the association to recover the loss. The defense relied on was that her policy was totally void, for the reason that her application had never been ap

This

proved by the board of directors, as required by the constitution of the association. The jury returned a verdict in her favor, and the question here presented is whether or not she was entitled to a recovery in any amount.

The material facts are as above stated. We say this, although there was some evt dence tending to show that neither the secretary nor the directors had, at any time prior to the adjournment of the directors' meeting held on April 15th, been made aware of the fact that Mrs. Taliaferro's original application had been amended as above stated. It is also fair to say that the testimony, as a whole, warrants the inference that, by the instructions given by the directors to the secretary on April 6th, they intended merely to authorize him to issue policies upon such applications only as had been passed upon and approved by the promoters of the association. But, however this may be, our conclusion is that the policy sued on by Mrs. Taliaferro was valid and binding upon the association, and that the verdict in her favor should stand. The action of the directors on April 15th, as shown by their minutes, amounted to an approval and ratification of the action of the secretary in issuing to Mrs. Taliaferro a policy for $1,150. The silence of the minutes as to any express or affirmative action taken upon the secretary's report is of no consequence. They, at least, permitted that which he had done to so remain. The only fair and reasonable interpretation of what actually appears on the minutes is that the directors intended to give their sanction to what the secretary reported he had done in pursuance of the instructions they had previously given him. The truth is, the directors meant to approve and ratify the issuance of all the policies, to the number of 140, he had issued. Otherwise, they would have expressly withheld their approval of such of them as they desired to repudiate, and this fact must, of necessity, have appeared in the record of their proceedings. At any rate, the burden was upon the defendant to show that its directors had not, either expressly or impliedly, given their consent to or ratified the action of the secretary in issuing the policy in question. The fact was certainly made known to them, in the most clear and explicit manner, that the secretary had issued this policy for $1,150, and their nonaction in the premises, with knowledge of this fact before them, amounted to a ratification of his act, whether it had previously been authorized by them or not, and surely binds the association.

It may be that, in failing to inform themselves of the circumstances under which the policy was issued, they did not act either advisedly or prudently; but certain it is they acted, and it does not now lie in the mouth of the association to say to Mrs. Taliaferro that its board of directors took action upon her application and issued her a policy without knowing what they were about. Although in approving and ratifying the issuance of the

policy to her they may ignorantly have supposed that it was based upon an application which had been passed on and approved by the promoters, this mistaken notion on their part would not invalidate the policy. Mrs. Taliaferro's final application, asking for insurance to the extent of $1,150, was regularly and properly before the meeting of the directors on April 6th, and it was their duty to examine and pass upon it, without regard to what the promoters had previously done, the latter having no authority whatever to bind the association by their approval of any application. It cannot now avail the association anything to assert that the promoters had never really acted upon Mrs. Taliaferro's application in its amended form. At last, the

matter was one for decision by the directors, as such, after their appointment; and they having, as has been seen, approved and consented to the issuance of her policy, and having permitted the association to retain the full premium paid therefor, it is now too late for it to assert that the policy was issued through a mistake on the part of its officers, not chargeable in any sense to her. Possibly, had the association moved in the matter before a loss occurred, they might, in a court exercising equity jurisdiction, have had the contract of insurance rescinded on the ground of a mistake on its part regarding the precise risk it was called upon to assume; but, after loss, even this remedy would necessarily be cut off, as the parties could not be placed in statu quo. Judgment affirmed. All the justices concurring.

(108 Ga. 756)

TAYLOR v. MERCHANTS' NAT. BANK. (Supreme Court of Georgia. April 17, 1899.) APPEAL-NEW TRIAL.

The motion for a new trial contains several grounds, and presents a number of legal questions; but the case turns upon whether or not there was any evidence to support the plea of usury, which was the sole defense set up against the plaintiff's action. There was no such evidence, and the verdict rendered was the only one which could have been lawfully returned. Consequently there was no error in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by the Merchants' National Bank against M. A. Taylor. Judgment for plaintiff, and defendant brings error. Affirmed.

Henry Walder and J. Branham, for plaintiff in error. Reece & Denny, for defendant in error.

PER CURIAM. Judgment affirmed.

(108 Ga. 757)

FOY v. PLANT. (Supreme Court of Georgia. April 18, 1899.) APPEAL-NEW TRIAL.

Though the instructions complained of were inappropriate, and not adjusted to the is