USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 20
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" The bill stated that Ann Peyton, the wife of the defendant, was entitled under the will of her first husband, J. Stobo, to an estate in fee, in a tract of land, called Archfield, in St. Paul's Parish, containing six hundred and ninety-four acres. And she agreed to and joined with her present husband in selling and conveying the same (through a public sale by the Sheriff) to Dr. John Ramsay, on condition that the purchase money arising from the sale should be applied to purchase a tract of land of equal value, to be conveyed in trust to such uses as are therein set forth. That in pursuance of such agreement, the said R. H. Peyton purchased of Charles Freer, a tract of land, called Block Island, in St. Paul's Parish, which the said Freer, in consideration of 1,900l. conveyed to Joseph Peace, his heirs and assigns, in trust, for the sole use of Ann Peyton, during her lifetime, and upon her death, to the use of the said R. H. Peyton, during his life, and upon their death, to the use of the heirs of the said R. H. Reyton and Ann Peyton, with other uses, and for other purposes therein stated. And there was a proviso in said deed, that the said R. H. Peyton and Ann, his wife, might change said
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trustee, and might sell and convey the said tract of land, called Block Island, to any person they pleased: 'Provided, the proceeds of such sale should be immediately laid out and vested in the purchase of some other estate, or property of equal value, either in lands or negroes, or public funds, or bank shares, which should be conveyed and secured upon the same trusts, and to the same uses and purposes, as the lands and premises above described were subject to.'
" That the said R. H. Peyton and Ann, his wife, in pursu- ance of said powers, had proceeded to change the trustee, and had appointed, by deed duly executed, J. S. Fowke, to be the trustee, in the room of Joseph Peace, who had consented thereto, and the said J. S. Fowke had accepted said trusteeship.
"That the said R. H. Peyton, and Ann, his wife, had also thought it advisable to sell the said tract of land called Block Island and that the proceeds should be laid out in the man- ner, and to the uses prescribed in the said deed; and they, together with the new trustee, J. S. Fowke, had, by proper deeds, conveyed the same, in fee simple, to the complainant, C. Lining, for the sum of $15,000. That the said Charles Lining had paid $6,000 in cash, and secured the remaining $9,000 by bond and mortgage of the land. That the $6,000 cash, paid by the said Charles Lining, had been invested in the purchase of lands and slaves, and conveyed to the trustee, to the uses stated in the original deed from Charles Freer.
" That doubts have arisen, whether upon the change of the trustee aforesaid, the estate in the Block Island tract of land, was so vested in J. S. Fowke, the new trustee, as to enable him to convey a fee simple estate to the complainant, and whether the original trustee, Joseph Peace, ought not to have joined in the said deed of conveyance. The bill, therefore, prays for relief, and that the Court would direct the convey- ances to be perfected, so as to vest a full, clear and inde- feasible estate in fee simple in said land in the complainant. The bill also submits to the judgment of the Court, whether it is the duty of the complainant, as purchaser of the Block Island land, to see to the appropriation of the consideration
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money to the purposes of the trust estate, it having been suggested that it was the duty of the purchaser to see to such appropriation and investment, otherwise he might not be safe in his said purchase, and prays that the Court would make such orders, and give such directions in the premises, as will secure the complainant.
"The defendants, R. H. Peyton and Ann, his wife, Joseph Peace, the former trustee, and J. S. Fowke, the present trustee, admit all the facts stated in the complainant's bill, and submit to the Court that the deeds already made and executed, are sufficient to convey and assure the Block Island land in fee simple to the complainant; but they are willing to execute any other deeds or conveyances which may be thought neces- sary for that purpose. And the defendants deny that the complainant is bound to see to the application of the purchase money to the purposes of the trust, or that he ought to inter- meddle therein; the same being the duty of the trustee and the cestuis que use.
"The answer of the minor children of R. H. Peyton and Ann, his wife, by their guardian, states their ignorance of these transactions, and submits their rights to the protection of the Court.
" Mr. Lining appeared in propria persona.
"And Mr. Parker for defendants.
"The case came to a hearing, and afterwards Chancellor Rutledge delivered the decree of the Court:
"This we believe to be a new case, no precedent having been adduced to show that it ever has been determined in this country anterior to the Revolution, which is more than probable it never was, as the proceedings of the Court under the royal government were extremely relaxed ; and since the establishment of this Court, in 1784, we are pretty certain the question has never been formally discussed. Whatever may be the law in Great Britain on this subject, from which our jurisprudence has been principally derived, there are a variety of local circumstances which render it not only highly im- proper, but almost impracticable that it should be adopted in this country. The case before us proves the position; for
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scarcely would a purchaser be found of trust estates who would be inclined to be saddled with the inconvenience and embarrassment of seeing that the purchase money was applied to the purposes of the trust. It has never heretofore been determined that he should, and we will not now establish a precedent-for it might tend exceedingly to embarrass, if not shake to the foundation, the titles of very many persons, who have heretofore purchased at the sales of the trust estates without the remotest idea of responsibility, as to the applica- tion of the purchase money. We do not say that where property has been conveyed in trust for the payment of debts, or other specific purposes, that it is not the duty, as well as the interest, of purchasers at such sales to attend to the right appropriation of the money; but in cases like the present, and others that may be assimilated to it, purchasers are not, and ought not to be, considered in the same light as trustees, and intrude themselves on the parties to see that the purchase money is applied as the trust deed directs, because the cestui que trust joining in the conveyance with the trustee, it is his particular duty, as well as his interest, to see the trust money properly applied -- and if he finds the trustee disposed to mis- apply it, he can immediately apply to this Court for redress. The Court are, therefore, of opinion and decree, that in this case the complainant is not obliged to attend to the disposi- tion of the purchase money of the estate in bill mentioned, conceiving that the cestuis que trust, who are parties to the conveyance, are fully competent, and the only persons who ought to interest themselves in the business. The trustee not having been changed in the manner the law directs, that should be done, and the conveyances to complainant be then made as the deed directs, or the original trustee may join in the conveyance."
This case was acted upon subsequently, and recognized as acknowledged law in the case of Spencer vs. The Bank of the State, Bailey's Equity Reports, p. 478, decided in the year A. D. 1831.
The other case we have thought proper to cite is that of William Wragg vs. the Comptroller General and others, cred-
15
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itors of Mr. Irvine-found in 2 DeSaussure's Equity, p. 509. It decides, that where a person sells lands and conveys them in fee to a purchaser, and takes bond for the purchase money, but takes 110 mortgage, he has no implied lien on the land for purchase money unpaid, so as to give him any preference over the other creditors of the purchaser.
Chancellor Rutledge afterwards delivered the decree of the Court :
"In this case it was contended for complainants that the obligee had an equitable lien on the lands in bill mentioned, no part of the purchase money having been paid, and to that point several cases were cited, which, when examined, are found generally not to apply. The case in Vernon was between vendor and the assignee of the vendee, who had become bankrupt. The Court determined the vendor had a natural equity, and that the land should stand charged with so much of the debt as was unpaid. The cases in 2 Eq. Ca. Ab. 682, and 3 P. Wms. 307, were between the vendor and third persons, who had purchased from vendee, and had notice of the equitable incumbrance on the land. The pur- chase money not being paid, it was held that was sufficient notice for them to withhold payment. The cases of Coppin vs. Coppin, 2 P. Wms. 291, and Pollexfen vs. Moor, in 3 Atk. 272, do not apply, and the question is not determined in Black- burne vs. Gregory, 1 Brown, 420, for that case was decided on another point. But in the case of Fawell vs. Heelis, as reported in 1 Brown, p. 421, in a note, see also Ambler, 724, the point is determined that the vendor having taken bonds for the purchase money, had no lien.
"In England, it is well known that land is not liable to the payment of debts, but in cases where the heir is specially bound; his right being peculiarly favored and guarded. But in this country we all know that real and personal estate are equally liable to the payment of debts, and the plaintiff may make his election out of what property he will have his debt satisfied. It is, therefore, absurd to talk of a bond creditor having an equitable lien on land he has sold, unless he has taken care to secure that lien by a mortgage, since whilst the
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debtor is alive, and indebted even on simple contract, if he is sued and judgment is obtained against him, any property he is possessed of may be seized and sold to satisfy the judg- ment, if it is not secured by mortgage or otherwise. This has been the law of this country for at least sixty years past. After the debtor's death, the law then directs the order in which his debts are to be paid by his executors, and then, for the first time, a discrimination is made between creditors by specialty, and those on simple contract. As the complainants then are not entitled to relief on the principle of an equitable lien in preference to other creditors, the next question is, whether the Confiscation Acts give them a preference? The Act of 1782 confiscates the real estate of Mr. Irvine, as a British subject. He is not banished by that law, because he had never resided in this country. The Act of 1783 declares that the creditors of confiscated estates by bond, bill, notes, or open account indiscriminately, where the estates are fully and clearly equal to the demands upon them, shall be paid their debts: Provided, that nothing therein contained shall entitle any creditor to more than his proportion, where the estate is insufficient for the payment of its debts. The land in ques- tion, it is admitted, has not sold for a sum sufficient to pay all the debts; therefore, under that law, the complainants' debt cannot be fully satisfied; but complainants have taken to their aid the Act of 1784, for restoring to certain persons men- tioned in list, No. 1, thereto annexed, their estates, &c. Un- fortunately for complainant, Mr. Irvine's name is not men- tioned in the list, and therefore he could not, if alive, have availed himself of the benefit of that law; and if he could, the estate is nevertheless liable to an amercement, which the Comptroller will deduct on a settlement with the creditors. Nor can complainants be benefitted by the Ordinance of 1784, because they have neither a mortgage or judgment to bind the land.
"It was further urged that the Legislature intended to have given up the property altogether to Mr. Irvine's representa- tives, and that one branch of the Legislature had actually passed a resolution to that effect. Whatever may have been
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the intention of the Legislature, it can only be known to the Court, when it has been enacted into a law. Such a law has not been passed, and a resolution cannot repeal a positive law of the land.
"The Court are of opinion that the Confiscation Act of 1783 being unrepealed, the complainants can only be paid their demand in proportion with the other creditors of Mr. Irvine. "Costs to be paid out of the purchase money of the land."
A moment's consideration will suffice to satisfy any think- ing mind of the value of the above doctrines. They set aside and abolish some of the most troublesome, and in their prac- tical working, most injurious doctrines of the English Law. They have become rules of property among us. They are consistent with our institutions and the spirit of our people; for however harmonious the doctrines of the equitable lien of the vendor of real estate, and the duty of the purchaser of trust property to see after the application of the purchase money, may be with the theory of their law, and however applicable under the circumstances which surround the English people, all such restrictions upon the free inter- change of property are hostile to the genius and the interests of the American people.
The above cases are enough to illustrate Chancellor Rut- ledge's judicial style. They show that although versed in the learning of the law, he was not so bound down by the force of precedents as to be unable to act independently of them when the interests of the country plainly required it. In con- clusion of this part of our subject, we may indulge in this general observation: That Chancellor Rutledge's mind was logical and exact-his style clear and perspicuous-his learn- ing comprehensive and accurate -- and his judgment sound and independent.
We come now to speak of the second source of informa- tion above referred to as the means of acquiring knowledge concerning the characteristics of those who are passed away- the judgments of cotemporaries. Let the cotemporaries of Chancellor Rutledge, most of them opposed to him in politics, declare what opinions they entertained of him.
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From the Charleston Courier.
TUESDAY MORNING, Jan. 22, 1811.
At a full meeting of the gentlemen of the Bar, convened in the Equity Court Room, and upon John Julius Pringle, Esq. being called to the chair, the following resolutions were unani- mously adopted :
The members of the Bar in Charleston, deeply regretting the death of the late Hon. Hugh Rutledge, and bearing in mind the many public and private virtues and important services to his country, which distinguished him throughout a long and honorable life ; being convened for the purpose of testifying their respect and veneration for his memory, have adopted the following preamble and resolutions:
Whereas the Honorable Hugh Rutledge, late and for many years a Chancellor of this State, from early life devoted him- self to the service of his country, during her struggles for lib- erty gallantly fighting in her ranks, and by his example throughout, animating his countrymen in the field, in cap- tivity and in banishment, to meet and sustain with heroic fortitude all the various trials of the Revolutionary conflict, and after the establishment and consolidation of the inde- pendence of his country, requiting her well earned confidence by the able and faithful discharge of the duties of several high and important stations, and in his late capacity of Chan- cellor, (wherein those who pay this tribute were the constant witnesses of his conduct) administering public justice during a long course of service, with great learning and ability, with unsullied purity and inflexible virtue ; always adorning the judgment seat with a deportment mild and dignified, humane and liberal; and in private life uniting all those amiable and valuable qualities which prompt esteem, cement friendship, and produce extensive usefulness : And whereas the recent death of this excellent Judge and most worthy citizen, is a public bereavement greatly to be deplored, and is deeply regretted by the members of the Bar, they have, therefore,
Resolved, As a testimony of their sense of the loss sustained by the public, of the esteem which they bore to his person, and of the respect and veneration which they cherish for his memory, that the members of the Bar, now convened, will
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put on mourning for him, by wearing a crape on the left arm for thirty days, from the date hereof.
Also, That the Chairman of this meeting do request the Reverend Mr. Simons, Rector of St. Philips Church, to preach a funeral sermon on the occasion as soon as may be conve- nient to him.
That the foregoing preamble and resolutions, signed by the Chairman, be published in the Charleston newspapers.
JOHN JULIUS PRINGLE, Chairman.
January 21, 1811.
Chancellor Rutledge had lived in the most tempestuous period of our history; he had gone through the seven years of incessant trial and conflict, and he had endured all that such a struggle had to inflict. War, with all the concomi- tants of war, was followed by political divisions, the most relentless and bitter. He did not escape, but he met the vio- lence and the fury of party as he had previously met the common enemy of our country; he put both at defiance, and he did so successfully.
Chancellor Rutledge early adopted the opinions of Wash- ington and of Marshall; and with his two brothers, the two Pinckneys, and others, was one of those South Carolina Fed- eralists of whom the biographer of Mr. Jefferson has spoken ; He died as he had lived, neither changing his creed, nor compromising his doctrine. But in behalf of such men, let it here be said, that so far as this State is concerned, the his- tory of that party has never been written. And that when the bugle sounded again in 1812, they were found standing by their country, seeking no emolument for themselves. I have a distinct recollection of the three Rutledges, of the two Pinckneys, and of other men of those days-Moultrie, Davy, Burke, William Washington, Isaac Huger, &c., &c .-- and I have seen the man of whom we are speaking in company with some of them. His appearance was dignified in the extreme-somewhat stern, but polished beyond mistake -- and his manners spoke his position and his training. Rigidly, but courteously polite, and perhaps a little severe in his de- portment, it was impossible to be in his presence and not recognize the school to which he belonged. He was always
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the same model of a republican gentleman, affable and acces- sible, but never familiar ; always gentle, but never doubtful, and on questions of principle, unyielding and immovable without reference to policy or circumstances. The basis of his whole character was truth, and though he never departed from the highest refinement, yet where his own conceptions of integrity and morality were concerned, he would neither give nor take. He was inflexible himself, and not indulgent to those whose conduct savored of delinquency. All his in- telligence and all his research, seemed, on this subject, only to confirm his natural disposition.
I do not imagine that any one, with the ordinary know- ledge of good breeding, could have taken a liberty with such a man; and I am very sure he never would intentionally have trespassed on the feelings of another. He was charitable and generous; he was kind, humane, affectionate and brave; his friendships were like his "will," proverbially firm and un- changing. His only pride was that which every honest man has a right to indulge in, the consciousness of his own recti- tude and the strength of his own resolution, and he necessa- rily commanded the respect and confidence of every virtuous mind.
In life, Chancellor Rutledge performed his duty without fear or favor, and with an utter contempt for everything like ostentation or parade. Believing himself, as a citizen, equal to others, he never sought for patronage, but acknowledged the rights and prerogatives of all men; and in death he was calm and tranquil, but still preserving his peculiar aversion to the vanities of the world. Once when required to prepare an inscription for the tomb of a friend who was prominent in his regard, he simply wrote,
"An honest man's the noblest work of God."
And when the last arrow was hastening him away, having made his peace with heaven, he turned to those who wept at his side, giving them comfort and consolation, leaving with them this injunction : "Place me near my brother, Edward, but let no stone mark where I lie."
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JAMES GREEN HUNT.
Chancellor Hunt was elected a Judge of the Court of Equity in May, 1794, and presided during the June Term of the same year. In the Reports, no decree appears to have been delivered by him. His death occurred in the course of that year-when and where I am unable to say-and I have to regret that there are no materials to be obtained, which would enable me to do him justice.
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WILLIAM MARSHALL.
Of Chancellor Marshall I have been able to learn but little. I have looked through the second volume of Equity Reports from May, 1800, to November, 1805, and it appears that Chancellor Marshall delivered five decrees only. They are generally short and well argued. It may be proper to state that Chancellor Hugh Rutledge, as President of the Court, usually delivered the decrees. I can only do him justice by appending a decree of his from second volume Equity Reports, p. 145, which indicate to the reader his legal ability :
REPRESENTATIVES OF JAMES ASKEW US. JOHN E. POYAS.
The object of complainant's bill are, to discover from the defendant's oath, whether a parol agreement was not entered into between him and the complainant respecting the land in bill mentioned to the following effect : That the whole of what belonged to complainant (being 201 acres) should be sold; that the defendant should purchase it, and pay £200 for a moiety of it; that the Sheriff should make titles to defendant for one moiety, and complainant for the other moiety. That the defendant should also discover whether a copartnership was not entered into between them for the purpose of estab- lishing a brick-yard, and carrying on that business, the defendant accounting for the profits of it, or the work of the negroes on it; and that the defendant may discover whether the negroes of complainant sold by Sheriff under execution were not purchased in by defendant in trust for complainant. The defendant in his answer denies the agreement as set forth, but says he agreed to purchase 201 acres, a moiety of com- plainant's land, provided he could get good titles : that he was to pay and did pay £200 for it; and it was agreed that on complainant's repaying him one-half of the purchase money, he should have half of the land ; that he was always ready to comply with the terms, but complainant never was. Defend- ant denies that titles were to be taken in his and complainant's
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name; but when he received them from Sheriff, he shewed them to complainant, who made no objection to their being made to defendant. He denies that he is liable to account for the profits of the brick-yard. He admits a copartnership was contemplated, but denies that Askew complied with any of the stipulations agreed on. He is nevertheless willing to allow wages for the negroes of complainant whilst there; and denies that the purchase of the negroes was made in trust; but avers they were sold under execution for complainant's debts; and defendant bought them for a valuable consideration, and has paid the money.
This case lies in a very narrow compass. The first question respecting the parol agreement is plain and clear: the defendant totally denies it as stated in the bill; and there is no written evidence to contradict his answer -- it must therefore be taken to be true. To admit parol proof of a parol agreement, in a case not tinctured with fraud, would introduce all the mis- chiefs and inconveniences which the statute of frauds intended to prevent : and would be in effect to repeal the statute which makes void all parol agreements concerning land. The parol testimony respecting the agreement must therefore be laid aside. The defendant's answer, denying the agreement, standing uncontradicted, the bill would be dismissed, were it not necessary to retain it for the purpose of defendant's accounting for the work and labor of complainant's negroes. Defendant having denied the existence of a co-partnership, and there being no proof of it, the complainant is not entitled to account for the profits of the brick-yard. Defendant having also denied the purchase of the negroes at Sheriff's sale in trust for complainant, and it having been fully proved by Mr. Ford that the sale was a fair one; that he thought and believed defendant was bidding for himself, and that he never heard that he was buying for any one else; and Turner, a Deputy Sheriff, swearing that defendant absolutely refused Mrs. Askew's request to buy them in for her husband, but said that he would purchase them for himself; and the bill of sale from the Sheriff to defendant being in the common form, he cannot
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