the children who answered the complaint upon the merits waived the right to insist upon this objection. This is true even as to a court of inferior jurisdiction. Rosamond v. Earle, 46 S. C. 9, 24 S. E. 44. Those of the children who answered the complaint admitted that letters of administration were duly granted to the clerk of the court, and consented to a sale of the land, which was clearly within the jurisdiction of the probate court. Even if the proceedings in the probate court were null and void as to those of the children who did not answer the complaint, it was error to exclude the testimony to which the plaintiffs objected, at least as to those who waived the right to insist upon the objection by answering to the merits, and this would necessitate a new trial. This is only stated as an additional reason showing error on the part of the circuit judge, and not for the purpose of showing that the proceedings were null and void as to any of the plaintiff's herein.

We will next consider the exception to the decree of his honor, Judge Gary. The question raised by this exception becomes merely speculative, since this court has reached the conclusion that the appointment of the administrator was not null and void. But, even waiving this objection to their consideration, we see no error in the decree. It is the judgment of this court that the judgment of the circuit court, but not the decree, be reversed, and the case remanded to that court for a new trial.

McIVER, C. J. (dissenting). I am unable to concur in the conclusion reached by Mr. Justice GARY as to the admissibility of the record from the probate court. That record shows on its face that the petition for letters of administration upon the derelict estate of Levi Hartley, deceased, was dated and filed 28th of November, 1887, and that the letters of administration were granted on the 29th of December, 1887. Thus this record shows conclusively that the 40 days of notice required by the statute was not, and could not possibly have been, given of such application. This defect, thus appearing upon the record, was fatal to the jurisdiction of the court, and hence this so-called "record" may be treated as an absolute nullity whenever or wherever it is encountered; and for this reason there was no error in ruling that it was inadmissible; at least so far as the rights of those of the plaintiffs who had not estopped themselves from raising the question are concerned. As to the two plaintiffs John Hartley and Amanda Cockrell, who answered the petition filed in the probate court by the so-called "administrator," praying for the sale of the land in aid of assets for the payment of debts, and consenting to the prayer thereof, I agree that they are thereby estopped from now raising the question. That this defect thus appearing upon the face of the record is a fatal jurisdictional defect seems to me clear. The power of the probate judge to grant letters of administration upon derelict

estates to the clerk of the court is not a power incident to his office, but grows out of, and is derived from, a special statute, which has been incorporated in the Revised Statutes of 1893, as section 2034. Inasmuch as this section is set out in full in the leading opinion, it is unnecessary to quote it again here. It is sufficient to refer to such of its provisions as bear directly upon the point under consideration. Substantially, its provisions are that when an estate of an intestate becomes derelict, and remains so for the period of six months, the clerk of the court is required to make application to the judge of probate for letters of administration upon such derelict estate, and thereupon "it shall be the duty of such judge of probate to insert a notice of such application, in the usual form, for forty days in some public newspaper,

and

after such notice to grant to such clerk of the court letters of administration on the estate of such deceased person," etc. This, being a special power, conferred by a special statute, can only be exercised in the manner and under This the terms prescribed by such statute. principle was recognized and acted upon in the case of Whitesides v. Barber, 24 S. C. 373, In which the proceeding was an application to the court of probate to sell lands of the decedent in aid of the personalty, for the payment of debts, to which the heirs were made \parties, but not the administrator, as no administration had been granted. In the opinion of the court we find this language: "The first inquiry, therefore, is, could the court of probate obtain jurisdiction in such a case?" and, after referring to the statute conferring upon the court of probate the power to sell lands, for the payment of debts, in aid of the personalty, adds these words: "But this jurisdic tion is conferred only upon the court of probate of the county in which the will of such deceased person was proved, or in which administration of his estate was granted." It was therefore held "that until a will has been proved, or letters of administration have been granted, no court of probate can take jurisdiction of a proceeding to sell the real estate of a deceased person. This is not a mere question of defect of parties, as has been argued by the appellant, for, although it is undoubtedly true that in such a proceeding the executor or administrator, as the case may be, would be a necessary party, yet the defect here is deeper, and is jurisdictional." Accordingly it was held that there was no error on the part of the circuit judge in charging that the proceeding for the sale of the land in the court of probate for the payment of debts was void. It seems to me that upon the same principle as the statute conferring the power to grant letters of administration upon a derelict estate expressly required that 40 days' notice of such application should be given, and it was only after such notice that the judge of probate was invested with power to grant such letters, his attempt to do so without complying with these express requirements was

an absolute nullity, at least to the extent above indicated. There are various other objections to this record, some of which seem to be of a grave character, but, as the circuit judge seems to have based his ruling upon the ground above considered, and Mr. Justice GARY has confined himself to a considera. tion of that ground, I propose to do likewise. But I do not wish to be regarded as committing myself, either one way or the other, as to the additional grounds of objection to the record. As to the exception to the decree of his honor, Judge Ernest Gary, I agree that it should be overruled. The practical result of my view is that there should be a new trial as to those of the plaintiffs who, by filing answers to the proceedings in the probate court, and consenting to the prayer of the petition, have estopped themselves from raising the question as to the admissibility of the record of such proceedings or disputing its admissibility.

POPE and JONES, JJ., concurring.

(56 S. C. 38)

SIMON v. SABB et al. (Supreme Court of South Carolina. Aug. 2, 1899.)

PARTIES

FRAUDULENT CONVEYANCES
MORTGAGE FORECLOSURE-ADMINISTRATOR

OF MORTGAGOR MARRIED WOMEN-CON

TRACT-PLEADING-APPEAL.

1. In an action to set aside a deed, and subject land to the lien of a mortgage, it was alleged that, while one who was entitled to a deed from the holder of the legal title was negotiating for a loan, she, after the consummation of the deal, but before the delivery of the mortgage, caused the holder of the legal title to convey to her daughters instead of to her, and that such conveyance was without consideration, and fraudulent. Held, that the administrator of one of the deceased daughters is not a necessary party when all her heirs are joined as defendants.

2. Under Act 1894 (21 St. at Large, 816), which provides that from and after its passage no sale under or by virtue of any mortgage shall be valid to pass the title of the land mortgaged unless the debt for which the mortgage was given shall be first established by the judgment of some court of competent jurisdiction, the administrator of a deceased inortgagor, though the mortgage was executed before the passage of the act, is a necessary party to the foreclosure of the mortgage.

3. In an action on a contract made with a married woman at a time when she could bind herself only on contracts for the benefit of her separate estate, a complaint which shows that she was a married woman, but does not allege that the contract sued on was for the benefit of her separate estate, is demurrable.

4. A mortgage signed by a married woman, which recites that it is given to secure advances of supplies for agricultural purposes to be made to two others, who also execute the mortgage, to be used in cultivating land belonging in part to the married woman, is not a contract for the benefit of her separate estate.

5. A complaint is not subject to a demurrer if it contains allegations entitling the plaintiff to relief at law or in equity.

6. In an action to set aside a deed as fraudulent, and to subject land to a mortgage, where is alleged that one who was entitled to the

legal title of the land just before the execution by her of a mortgage on the same to secure advances fraudulently procured the legal title to be conveyed to her daughters, the plaintiff, being the assignee of such mortgage, need not allege that he was an innocent purchaser for value, without notice.

7. On appeal the supreme court will not consider statements set out in the exceptions, but which are not elsewhere incorporated in the record.

8. In an action to foreclose a mortgage it is error to adjudge that defendants, who are not bound by the debt secured by the mortgage, shall pay any deficiency after a sale of the mortgaged premises.

Appeal from common pleas circuit court of Barnwell county; James Aldrich, Judge.

Bill by Joseph A. Simon against Lucretia Sabb and others. From a decree in favor of plaintiff, defendants appealed. Reversed.

The following is the complaint:

"The plaintiff, by this complaint herein, respectfully shows:

"(1) That one John J. Cater, of the county and state aforesaid, departed this life on or about the day of 18-, leaving

a considerable estate in land, which was subsequently divided among his children, and the tract hereinafter mentioned was part and parcel of the share allotted to his daughter Susan E. Creech in said division, and thereafter the said Susan E. Creech conveyed the same to one Caroline Williams, by her deed of date 28th day of November, 1879, and the said Caroline Williams entered upon the possession thereof, where she remained until the date of her death, which occurred about the year 1889.

"(2) That during the year 1882 the entire real estate which was of the said John J.

Cater was levied upon under judgment against his legal representatives for a debt contracted by the said John J. Cater in his lifetime, and sold by the sheriff of Barnwell county, and was purchased by the defendant Peyton M. Cater, who took the sheriff's title to the same.

"(3) That the said Peyton M. Cater bid off the said land in behalf of, and under a parol agreement with, all the children of the said John J. Cater, each child, including the said Peyton M. Cater, assuming his or her share of the purchase money of the land, each party, by the terms of the said agreement, to receive a conveyance from the said Peyton M. Cater of that portion of the land previously allotted to him or her in the division aforesaid, upon the payment to the said Peyton M. Cater of his or her proportion of the purchase money aforesaid; and the said Susan E. Creech fully complied with the conditions aforesaid, and was entitled to receive from the said Peyton M. Cater a conveyance of her share of the land; and, in order to perfect the title of said Caroline Williams, requested and directed the said Peyton M. Cater to convey to her the tract of land previously sold to her by the said Susan E. Creech, as hereinbefore stated.

"(4) That on the 1st day of March, 1893

[clerical error in original; should be 1883], the said Caroline Williams, desiring to obtain advances for agricultural purposes from one Nathan Simon, offered to secure the same by a mortgage upon her land (the same tract of land hereinbefore referred to), and pursuant to said agreement prepared her note in writing for the sum of two hundred and fifty dollars (which is hereto annexed, as a part of the complaint), and a mortgage of the land hereinafter described, to secure the said note; which note and .mortgage, however, were not executed until the 6th day of the said month. A copy of the said note is as follows:

"'Witness: B. B. Sanders.'

"(5) That the defendant Caroline Williams, on the 6th day of March, 1883, to secure the payment of the said note, executed and delivered to Nathan Simon her deed, and thereby conveyed by way of mortgage to Nathan Simon, his heirs and assigns, the following lands and tenements situated in the said county: 'All that tract or parcel of land lying and being in the state and county aforesaid, containing fifty acres, being a part of lands of the estate of John J. Cater, deceased, inherited by Susan E. Creech, bounded north by lands of N. M. Walker, south by lands of Susan E. Creech, west by lands of J. W. Knepton, and surveyed by T. B. Colding, August 28th, 1874.'

"(6) That on 22d day of March, 1883, the said mortgage was delivered to the register of mesne conveyance of the said county, and was by him recorded Vol. 4 T, pages 511 to 513.

"(7) That thereafter, to wit, on the 18th day of April, 1883, the said Nathan Simon duly assigned the said note and mortgage to the plaintiff.

"(8) That on the 5th day of March, 1883, during the interval of time between her application for credit and the execution of the said note and mortgage, the said Caroline Williams and her husband, one Solomon Williams, the latter acting for and in behalf of the said Caroline Williams, and aiding and counseling her herein, in collusion with Julia Jones, defendant, and Rebecca Williams, since deceased, intending to cheat and defraud the said Nathan Simon, and to defeat the mortgage which the said Caroline Williams was about to execute to the said Nathan Simon for advances as aforesaid, procured the said Peyton M. Cater to make the title to the said tract of land to her daughter, the defendant Julia Jones, and their

daughter Rebecca Williams, a minor, who has since died intestate, and without issue, leaving as her heirs at law all the defendants herein except defendant Peyton M. Cater.

"(9) That the said Peyton M. Cater had no knowledge of the intended fraud, but acted in good faith, as he supposed, in carrying out the instructions of the said Susan E. Creech, but that the said sale was without consideration, fraudulent, and void as to the right of the plaintiff.

"(10) That the knowledge of the fraud came to the plaintiff, or his assignor, Nathan Simon, within 6 years next preceding the commencement of this action.

"(11) That thereafter, to wit, in the year 1889, the said Caroline Williams, who had never parted with the possession of said premises, died intestate, leaving her husband, the said Solomon, and her children, the defendants, Lucretia Sabb, Grace Morgan, alias Grace Mixson, Julia Jones, and Hannah Mixson, her distributees and heirs at law. And the said Solomon Williams died soon thereafter, leaving as his heirs and distributees his children, the said defendants.

"(12) That the condition of the said note and mortgage has been broken, and there is due and remaining unpaid upon the said note and mortgage the sum of two hundred and fifty dollars, with interest from the 6th day of March, 1883.

"Wherefore the plaintiff prays that the deed of conveyance from the said Peyton M. Cater to the said Julia Jones and Rebecca Williams be set aside; that the mortgage be foreclosed, and the premises ordered to be sold, and the proceeds applied to the payment of the said debt."

R. A. Ellis and B. T. Rice, for appellants. I. L. Tobin, for respondent.

GARY, A. J. As some of the exceptions raise the question that his honor, the cir cuit judge, erred in refusing to sustain the demurrer interposed by all the defendants except Peyton M. Cater, it will be necessary to set out the complaint in the report of the

case.

The first exception alleges error, as follows: "Because his honor overruled the demurrer to the complaint for defect of parties, and held that the administrator of Caroline Williams and of Rebecca Williams, persons mentioned in the complaint, were not necessary parties defendant, whereas he should have held that the administrators of said deceased persons were necessary parties defendant in this action, they being charged with fraud."

We will first consider whether the administrator of Rebecca Williams was a necessary party defendant. Section 143 of the Code contains the following provisions: "The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by

saving their rights; but when a complete determination of the controversy can not be had without the presence of other parties the court must cause them to be brought in." Whether it is necessary that an administrator or executor, as the case may be, should be made a party to an action, depends upon the facts of the particular case. Fogle v. St. Michael Church, 48 S. C. 86, 26 S. E. 99. The plaintiff was not a creditor of Rebecca Williams. She was not liable for the mortgage debt, and no judgment could be rendered against her administrator, who it is not alleged has any control over the lands, or the proceeds thereof. Under these circumstances the case of Trapier v. Waldo, 16 S. C., at page 288, shows conclusively that the administrator of Rebecca Williams was not a necessary, nor even a proper, party defendant. The act of 1894, hereinafter considered, has no application to the question whether the administrator of Rebecca Williams was a necessary party to the action.

The next question that will be considered is whether the administrator of Caroline Williams was a necessary party defendant. The act of 1894 (21 St. at Large, 816) contains the following provisions: "That from and after the passage of this act no sale under or by virtue of any mortgage or other instrument in writing intended as security for a debt shall be valid to pass the title of the land mortgaged unless the debt for which the security was given shall be first established by the judgment of some court of competent jurisdiction or unless the amount of the debt shall be consented to in writing by the debtor," etc. The other provisions have no application to this case, as it is not pretended that there was any such consent. Whatever doubt may have existed prior to the act hereinbefore mentioned of the necessity for making the administrator of the mortgagor a party defendant when the plaintiff only sought to subject the mortgaged property to the payment of the debt, there was no doubt, even prior to said act, of the necessity for making the administrator of the mortgagor a party defendant, if, in addition to subjecting the mortgaged property to the payment of the indebtedness, he also desired a judgment against the mortgagor's estate, in order to recover any deficiency that might remain after exhausting the mortgaged property. The act of 1894 deprived the mortgagee of the right to subject the mortgaged property to the payment of the debt before establishing the debt secured by the mortgage by the judgment of a court of competent jurisdiction. In other words, it became necessary to recover judgment for a specific sum against the mortgagor's estate before the mortgaged property could be sold. In order to recover such judgment, the administrator of the mortgagor was a necessary party to the action, and the circuit Judge erred in not so holding. The act shows upon its face that it has reference to 33SE.-51

the foreclosure of mortgages executed prior, as well as those executed subsequent, to the passage of the said act. It only related to the remedy, and the legislature had the right to make it applicable to the foreclosure of mortgages whether executed prior or subsequent to its passage. Stoddard v. Owings, 42 S. C. 88, 20 S. E. 25.

The effect of sustaining the exception raising this question is a dismissal of the complaint unless this court should order the complaint to be retained so that it may be amended. We will therefore consider the other exceptions for the purpose of determining whether there is such merit in the plaintiff's case as demands that the complaint should be retained and amended. The second exception is as follows: "Second. Because his honor, Judge Townsend, overruled the demurrer as to the second paragraph thereof, and held that the complaint stated facts sufficient to constitute a cause of action; whereas he should have held that the complaint did not state a cause of action, in the following particulars: (1) That the complaint states as the basis of action a note of a married woman, with mortgage, to secure advances for agricultural purposes, but does not allege that it was such a contract as a married woman could make, nor that it was for the benefit of her separate estate. (2) The plaintiff asks relief in equity against alleged fraud on a note tainted with usury, whereas it is submitted that he cannot come into equity claiming relief on a note whose provisions violate the statute law of the state. He must come into equity with clean hands. (3) The plaintiff, after alleging assignment to himself of bond and mortgage, does not allege that he is the innocent assignee of the same, for value, without notice; and without such allegation he is not entitled on his complaint to relief in equity. (4) The complaint alleges that Caroline Williams, charged with fraud, died before the commencement of this action. It is sought to recover on a note executed by said Caroline Williams as a security for advances made, and to sell, in order to pay the note of said Caroline Williams, certain land, the legal title of which is in Julia Jones and the heirs in law of Rebecca Williams, deceased. It is alleged in the complaint that said Caroline Williams died intestate, and yet no allegation is made in the complaint to charge any personal representative either of Caroline Williams or of Rebecca Williams, although both are charged with fraud in the complaint." We will consider the questions raised by this exception in their regular order.

First. At the time this contract was entered into, the right of a married woman to make such a contract was dependent on the power conferred upon her by the statute, and the burden of proof was on the person deal. ing with her to show that the contract was made with reference to her separate estate.

In this case the complaint shows that Caroline Williams was a married woman when the note and mortgage were executed, and there are no allegations showing that the agricultural supplies were for the benefit of her separate estate. The complaint was therefore subject to demurrer, and the circuit judge erred in overruling it. But, even if the allegations of the complaint were sufficient to constitute a cause of action, the written testimony, to wit, the memorandum of agreement when the note and mortgage were executed, shows that the contract was not "as to her separate estate." The memorandum of agreement which sets forth the consideration of the mortgage is as follows:

"Memorandum of agreement made this 6th day of March, A. D. 1883, between Nathan Simon, of Allendale, S. C., merchant, and Stephen Mixson, William Solomon Williams, and Caroline Williams, of Barnwell county, planters. The said Nathan Simon agrees to advance, at his discretion, to the said Solomon and Mixson, such supplies for agricultural purposes as he may require from time to time, not exceeding in the aggregate the sum of two hundred and fifty dollars, to be employed in the cultivation of the plantation known as 'Mrs. Barnes' Turkey Creek Place,' and about thirty acres, and the place of Caroline Williams, containing about fifty (50) acres, twenty (20) of which is under cultivation; the thirty (30) acres on the place of Mrs. Barnes being the amount thereon cultivated by us. And the said Caroline Williams, William Solomon, and Stephen Mixson hereby agree that the said Nathan Simon shall have a lien for said advances and the interest due thereon on all crops made on the said plantations during the year of 1883, in accordance .with and subject to the provisions of the laws of the state of South Carolina. We further agree to ship to said Nathan Simon, or his factor, as he may direct, on or before the 15th of Oct. next, ten bales of cotton, and in default thereof to pay a commission of two and one-half per cent. thereon. We further bind ourselves that this is the only lien given this year on our crop, and the only one we expect or intend to give. Witness our hands and seals the day above written.

Second. We will next consider the second question raised by this exception. It has been frequently determined by this court that a complaint is not subject to a demurrer if it contains allegations entitling the plaintiff to relief either on the law or equity side of the court. This principle is conclusive of the question under consideration.

Third. We proceed to a consideration of the third question raised by this exception. If the note and mortgage were valid, the mortgagee unquestionably had the right to assign them, and the question whether the person to whom they were assigned was an innocent assignee for value, without notice, has nothing to do with this case.

Fourth. The fourth question is disposed of by what was said in considering the first exception.

The exceptions to the master's report are not set out in the record. All the exceptions to Judge Aldrich's order, except one, are based upon the fact that he overruled certain exceptions to the master's report. The exceptions to the said report are set out in the exceptions to the order of Judge Aldrich, but, as they are not set out in the record elsewhere, they cannot be considered. It has been determined time and again that this court will not consider as part of the record statements which are only contained in the exceptions. The rule has for its object the prevention of misunderstanding between counsel. Of course, this court does not mean to reflect upon the attorneys for the appellants in refusing to consider said exceptions. The only exception to the order of Judge Aldrich which is not susceptible to the foregoing objection is the one which complains of error in adjudging that Julia Jones and Lucretia Sabb pay any deficiency that may arise after exhausting the mortgaged property. This was error, and is disposed of by what was said in considering the first exception. We see no reason for allowing the complaint to be retained for the purpose of amendment. It is the judgment of this court that the judgment of the circuit court be reversed, and that the complaint be dismissed.

(107 Ga 565)

CLARKE et al. v. INGRAM et al. INGRAM et al. v. CLARKE et al. (Supreme Court of Georgia. Aug. 2, 1899.) FRAUDULENT CONVEYANCE KNOWLEDGE OF GRANTEE.

1. A conveyance by an insole wank, not made for the benefit of all its creditors and stockholders, to one who at the time of receiv ing the instrument either had actual knowledge of the bank's condition, or was chargeable with notice of its insolvency, is, under section 1979 of the Civil Code, void.

2. The evidence in the present case demanded a finding against the validity of the trust deed relied on by the plaintiffs in error in the main bill of exceptions.

(Syllabus by the Court.)

Error from superior court, Sumter county; W. N. Spence, Judge.