CHARLESTON CO. SC
COURT RECORDS, Part 2
 

"Reports of cases argued and determined in the Court of Chancery of the State of South Carolina, from the Revolution to December, 1813, inclusive, in three volumes" by Henry William Desaussure, Senior Judge of the Court of Equity, and Presiding Judge of the Court of Appeals in Equity in the said state; Vol.II; Vol.2, pg.369 to 375 (California State Law Library, Sacramento, 1/2004)
      JOHN DUNCAN, vs. JAMES FISHER and ALEXANDER EDWARDS; Case L, Court of Chancery of South Carolina; 2 Desaus. 369; May, 1806.
      (MAD: Headnotes not included here)
      THE complainant stated that in 1802, he received from Philip Gadsden, a mortgage of sundry property, and amongst the rest, a lot on Charleston Neck, of about eleven acres, to secure a debt of $40,000, due from Christopher Gadsden & Co. That some time since, John M. Ehric obtained a judgment at law against P. Gadsden, and levied his execution on that lot, and advertised it for sale by the sheriff for cash, but afterwards countermanded the sale, appearing contented to wait till P. Gadsden could make arrangements to pay him. That Alexander Edwards bought this judgment, and took an assignment from Ehric, and again advertised the land for sale in October last, for cash. That Alexander Edwards is agent of James Fisher, who is the holder of a mortgage from P. Gadsden, prior in date to that of complainant, comprehending sundry property, and amongst the rest, this same lot of 11 acres: that his mortgage covers some property not included in complainant's mortgage, and very probably adequate to the payment of James Fisher's debt, without resorting to the property mortgaged to complainant, and complainant contends that Mr. Fisher ought first to resort to the property of this latter description. That the lot in question doubly mortgaged, is in possession of Miss Edwards, defendant's sister, and to enable her to buy it in at an under rate, (at a cash sale,) this mode of getting an assignment of the judgment has been resorted to, so as to sell it under execution, thereby to make Mr. Fisher's mortgage effective, without the usual process of foreclosure, which might afford time and opportunity to raise money and redeem, or make the property sell more advantageously upon a short credit, as is usual in cases of foreclosed mortgages.
      That the whole property mortgaged to complainant and James Fisher, is not more than sufficient for both the debts; that Ehric's judgement is subsequent to both. But complainant states that the debt to J. Fisher is founded on two bonds, one in 1789, and the other in 1793; at the latter period a mortgage was given. In a subsequent year another mortgage was given, not as additional security, but to secure payment of the same bonds and interest; and after that, a third mortgage for the same end. -- Complainant contends that the second mortgage cancelled the first, and the third the second, and he has no right to be paid until complainant is satisfied. And complainant also contends that the debt due James Fisher, is either a fictitious debt, or has been chiefly paid off -- the debt was never claimed until the bonds appear to have nearly doubled themselves -- that the incumbrances are kept up in order to defraud complainant, and to enable Miss Edwards to possess herself of the lot at an under value; that the assignment of this judgment is taken for that purpose also; and though taken in the name of Alex. Edwards, Jas. Fisher is the real purchaser, and is seeking to enforce it to the prejudice of complainant, without the forms usual in cases of mortgaged property. The complainant therefore prays injunction, discovery and relief.
      Defendant Alexander Edwards, answers, that John M. Ehric had obtained judgment against Philip Gadsden on his note; but he also obtained judgment against Mary Edwards on the same note as indorser; and when defendant found that Ehric was about to take the property of defendant's sister, in execution for the debt, he applied to Ehric on her behalf, requesting he would resort to the property of P. Gadsden in the first instance, he being the real debtor, and to this Ehric assented, on condition that if the proceeds of the property should be insufficient, defendant should give his note with his sister's endorsement, for the debt, and take an assignment of the judgment. This was assented to, and Ehric was proceeding to sell P. Gadsden's property, when the sale was prevented and postponed by the interference of complainant and P. Gadsden. Defendant fearing his sister's property would be sold by Ehric, took an assignment of the judgment, for which he paid $843.58, which he hoped would be repaid by Gadsden, and defendant not be obliged to apply to his sister for it.
      Denies that he was Mr. Fisher's agent; Fisher refused his consent to the assignment of the judgment or sale of the lot mortgaged to him. He denies that Miss Edwards intended to purchase at sheriff's sales, or that defendant wished to sell it at an under value. Believes if it were sold, and another lot sold with it, (which is claimed by the Santee Canal Company) both of which are included in Mr. Fisher's mortgage, it would fall short of his debt. That in getting the assignment, he intended no injury to complainant, and believes he cannot be injured, as Mr. Fisher's debt is more than the value of the property. That said mortgage was to secure a real debt -- defendant drew up the mortgages. The two last were given for and in lieu of land released from the first, and it was done at the desire of the said Philip Gadsden.
      Defendant J. Fisher denied that A. Edwards acted in the premises as his agent or with his funds, but that he refused his consent. That he held a mortgage long prior to complainant; denies that the other mortgaged property would suffice for his debt, though sold on an extensive credit, even if the claim of the Santee Canal Company on one of the lots should fail. Denies that the bonds were given for a debt not bona fide due, or that discounts exist against it, or that payments have been made to lessen the amount. He sets forth the debts for which the bonds and mortgages were given. The reason of the second and third mortgages was to substitute property released from the first, at the instance of Mr. Gadsden. Defendant denies that he intended to sell at an under value, which if true, complainant might have prevented by attending the sale. That if he should sell at an under value, he would be a sufferer, as part of his debt would remain unpaid, all the other property of Mr. Gadsden being bound for debts to the extent of its probable value. Admits he has been indulgent to P. Gadsden, and submits that he had full right to exercise his discretion in this respect.
      An injunction had been granted in the first instance on the filing of the bill; and the case was now argued by Mr. PRINGLE and Mr. DUNCAN for the complainant, and by Mr. EDWARDS (in pro. per;) Mr. DESAUSSURE and Mr. FORD for defendants.
      It was argued for complainant that these several mortgages for one and the same debt, carry the indications of contrivance, and ought to be well scrutinized. That the court will, in all cases, so mould the conflicting rights of creditors against the same property as that one shall not be allowed to prejudice or prostrate the other. That Fisher's mortgage ought to be restricted in the first instance to the property not covered by both, so that the other may have a chance of being paid. That the judgment creditor being subsequent to both, ought not to be allowed to interfere, as it was plain he could have no payment out of the property; and if allowed to force it to a cash sale, he might materially injure the rights of the others, and particularly of the complainant who held the prior mortgage. Cited 1 Eq. Ca. abr. 142, and 1 Atk. 530.
      For the defendant, it was admitted that by modern decisions, where one mortgagee abounds in securities, and the other holds a claim on a small portion of the property, this court will not interfere and compel the former to go at first, upon that part of his security not pledged to the other. But that is not the case here, as Mr. Fisher's answer fully shews. As to the mortgagor, all he possessed was an equity of redemption, and that is a valuable interest that shall go to his other creditors; 2 Com. 636: and the second creditor shall redeem. Ib. 637, 638. An Equity of Redemption is an interest constituting an actual estate which may be devised, granted, and intailed, and of which there is a possessio fratis, and a tenancy by the curtesy; it may be conveyed by bargain and sale, and if devised, must be done according to the statute of frauds. 1 Atk. 603. 2 Atk. 15. 2 Com. 441. And our act of Assembly for foreclosing mortgages at law, enacts the same thing in substance. And they contended that the equity of redemption was a tangible interest on which an execution may be levied; and a judgment creditor is not bound to wait the operation or measures of the mortgagee. This would be to subject the legal rights of one party to the convenience or caprice of another. If the mortgagee does not choose to foreclose and proceed, the judgment creditor may hasten the business of selling, subject to the mortgage, which is in fact to sell that equity of redemption which is a substantial tangible interest in the debtor.
      Chancellor JAMES delivered the following decree of the court: [Margin: 2nd Volume Decree Book page 343.]
      It is stated in the complainants bill that Philip Gadsden had duly executed three separate mortgages to James Fisher, the amounts of which are specified in said bill. That subsequent thereto, Philip Gadsden duly executed a mortgage to complainant, in which was included certain property which had been previously mortgaged to J. Fisher. That a certain John M. Ehrick obtained a judgment against P. Gadsden, which is suggested in complainant's bill to have been assigned to Alexander Edwards as agent for J. Fisher, for the purpose of having the property levied on by virtue of an execution, founded on the aforesaid judgment, and selling the same at an inconsiderable price, by means whereof, Miss Edwards might be benefited. It is contended for complainant, that the property mortgaged exclusively to J. Fisher, should be sold in the first instance, before any recourse should be had against that which had been doubly mortgaged to J. Fisher and John Duncan; and in no event to sell the property included in the mortgage to complainant, until the proceeds of the sales of the property mortgaged to J. Fisher were exhausted. The defendants deny unequivocally that Alexander Edwards acted as an agent for J. Fisher but that the purchase of the judgment aforesaid was a meritorious act, and that a bona fide consideration was given therefor. The said Alexander Edwards contends that being a judgment creditor, it would be hard to deprive him of the benefit of his judgment, by permitting the mortgages before mentioned to lie in a state of dormancy, which would have a tendency to keep his debt continually locked up, and would unquestionably operate a fraud. That the property mortgaged to Fisher will be entirely incompetent to the repayment of his debt, exclusive of the lot included in the complainants mortgage, and of course the whole mortgaged property must be sold. The court can see no propriety in a selection of the property to be sold; nor why one person should be taken into its peculiar protection, in preference to another. [Footnote: It is not to be inferred from this expression of the court, that it meant to lay it down that there are no cases in which the court would interfere between different mortgagees of the same property. There is a large branch of equity doctrine on the subject of double mortgages which would doubtless be applied by the court to proper cases brought before it.] That the judgment creditor is entitled to enforce a foreclosure of the mortgage, we have no doubt.
      It is therefore ordered and decreed, that James Fisher and John Duncan, do proceed with all possible expedition to foreclose their respective mortgages, and that the injunction be continued until the further order of this court.
 

"Reports of Judicial Decisions, in the State of South Carolina, from 1793 to 1816" by the Late Honorable Joseph Brevard, One of the Associate Judges; Vol.III, Decisions from 1811 to 1816; Brevard's Reports of Decisions, Vol.3, pg.386 to 387 (California State Law Library, Sacramento, 1/2004)
      THE CITY COUNCIL OF CHARLESTON v. JOHN DUNCAN; Constitutional Court of South Carolina, Charleston; 3 Brev. 386; April 1813.
      (headnote) James Duncan being duly authorised by the City Council to dispose of certain lottery tickets, sold them to defendant and took his note. He afterwards died insolvent, and the notes fell into the hands of the defendant, his administrator. Held, that the defendant could not retain the amount as assets, and that the plaintiffs were entitled to recover.
      EDWARDS, for the motion. PRINGLE, contra.
      [Opinion] COLCOCK, J. The jury find, that James Duncan, Esq., being a city warden, was requested by the City Council, and did undertake to sell and dispose of certain lottery tickets to them belonging, and that he did sell and dispose of fifty-seven tickets unto defendant, and did for the same take the within mentioned note of hand, which being unpaid, the said James Duncan died insolvent; and on his death, it fell into the hands of the defendant, his administrator. If the court should be of opinion, that the City Council can legally demand the said note as their property, then we find for the plaintiff $570; or the said note to be given up to the City Council; but if the court should be of opinion, that the said note can not be followed and separated from the general mass, as their property, of the estate or assets of the said James Duncan, then, we find for the defendant.
      The fact being clearly established, that the note was taken by the deceased for lottery tickets, which he, as agent to the City Council, had sold; the circumstance of his having taken it payable to himself, will certainly not make it his property. I am therefore of opinion, that the plaintiff have judgment, and that the postea be delivered to them.
      [Opinion] BREVARD, J. The verdict finds, that Mr. James Duncan, as city warden, took the promissory note for which this action was brought, for certain lottery tickets, which he was entrusted to sell on behalf of the corporation. And it may be fairly inferred, that the note was taken as trustee, for the use and benefit of the corporation.
      This action was trover for the wrongful conversion of the note. In this action, it was only necessary to prove property in the plaintiff, and a wrongful conversion by the defendant. If the note was taken in trust for the plaintiff, as it appears by the verdict, then it was the property of the plaintiff. The conversion may be fairly implied, as the verdict finds for the plaintiff, "if the court should be of opinion, the plaintiff could legally demand the said note." From this finding, it may be inferred, that there was a demand and refusal, sufficient to evidence a wrongful conversion, provided the property was in the plaintiff. I am of opinion, the plaintiff is entitled to judgment.
      [Opinion] BAY, J. The special verdict states that James Duncan, deceased, being a city warden, was requested by the City Council, and did undertake to sell and dispose of some lottery tickets, and that he sold fifty-seven tickets to the defendant, and took his note, for which this action was brought; which being unpaid, the said James Duncan died insolvent, and on his death, it fell into the hands of the defendant, as his administrator. If the court should think the note the property of the city, we find for them $570, or that the note should be given up. But if the court should think that the note cannot be followed up, and separated from the general mass, as the city's property, of the estate, or assets of the said James Duncan, then, they find for the defendant. From the foregoing special verdict, it appears to me, that the above named James Duncan, upon the delivery of the above mentioned lottery tickets for sale, became the trustee or agent of the City Council; and that the note, although taken in his own name, for the amount, became their property, the moment it was given for the said lottery tickets. He held it in trust for them, and does not form any part of his private estate; consequently, it became so much money due to the city from the maker of the note, instead of being due to the representative of the said deceased James Duncan. I am, therefore, of opinion, that the postea, should be delivered to the plaintiff, in order that they may enter their judgment thereon. If James Duncan is considered in the light of a factor or agent for the City Council, and he may be very justly considered in that light, the property to the last moment remains the property of the principal, and the tickets might have been recovered specifically if unsold, in whose hands soever they might have come. Even money for the proceeds, if in bags, may be recovered. 5 T.R. 215. 4 Burrows. 2047. If money received for the proceeds may then be recovered, it follows clearly, that a note given for the proceeds, may also be recovered.
 

"Reports of cases determined in the Constitutional Court of South Carolina" by D. J. McCord, A Member of the Columbia Bar, Vol.I, Being a continuation of Nott & McCord's Reports; Vol.I, pgs.404 to 406; ("McCord") Vol.I, pgs.252 to 253 (California State Law Library, Sacramento, 2/2004)
      THE STATE vs. JOHN DUNCAN; Constitutional Court of South Carolina; 1 McCord 404; May term, 1821.
      (MAD: headnotes not included here)
      Indictment for a nuisance in stopping a public highway.
      This was an indictment against John Duncan, for a nuisance in obstructing a navigable creek, by erecting flood gates across its mouth, and in maintaining these flood gates.
      A number of witnesses were called on the part of the prosecution, who proved that they had always considered this a public creek, and they believed it to be generally so reputed; that it had been always open, until the dam owned by the defendant was built, and that boats, wood-schooners, &c., had used the creek. That it was dry at low water, and that the mouth of the creek was about two feet above the water in the river at low tide. The creek runs from Ashley river through the marsh on the west side of Charleston, and, it appeared from the evidence of one witness, that Lynche's street runs down to this creek, at the extremity of which, on Cumming's creek, there is a landing.
      On the part of the defendant, several witnesses proved that they never had heard of this being a public navigable creek; that they never had considered it such; and though they had every opportunity of becoming acquainted with the fact, had it existed, they never knew that it had the reputation of being a public creek. The copy of a plat and grant, by the Lords proprietors, to John Cumming, of a tract of one hundred and thirty-three acres of land lying between Cooper and Ashley rivers was produced. The plat of land notherly and southerly was bounded by straight lines running from river to river.
      It was contended on the part of the State, that Cumming's creek, (the creek in dispute,) formed a part of the southern boundary; and the defendant insisted that the south line crossed the creek and went to the river. There were further given in evidence for the defendant, the acts of the legislature, vesting, as he contended, the whole creek in the city of Charleston; an early plat of Charleston; a plat of Charleston in 1770; one of the city lands by Purcell, surveyor, in 1797, including the creek; several other plats illustrative of the subject, and intended to show that the creek had always been considered within the city lands, and a regular chain of titles from the city to the defendant, giving an express authority to erect the flood-gate complained of as a nuisance.
      The jury found the defendant guilty; and he moved for a new trial on the ground, that the evidence did not support the allegation contained in the indictment, that the defendant had stopped a public highway.
      Mr. Justice HUGER delivered the opinion of the court.
      The difficulty in this case is, to ascertain the character of Cumming's creek. It appears to have been used for many years as a way by which the people living on Harleston's green approached their dwellings from Ashley river; but this alone would not constitute a highway; for a way leading from a highway, and terminating at a private house or in a particular neighbourhood is not a public, but a private way for the stopping of which an indictment will not lie, (1 Hawkins, 367;) but a thoroughfare or way leading from one highway to another, is a highway, the stopping of which is a nuisance, for which an indictment will lie. (5 Taunton, 125.) There is no doubt that Ashley river is a highway, and as little that Lynche's street is one. If therefore Cumming's creek be a thoroughfare between Ashley river and Lynche's street, or any other street equally a highway, a stoppage of it is a nuisance, for which the proper remedy is indictment. The witnesses however appear not to have distinguished between a public and private way, and only one, and he incidentally mentioned that there was a public landing place at the extremity of Lynche's street on Cumming's creek. If this fact had been fully proved, or had it been distinctly submitted to the jury, and they had thought proper to find the verdict they did, I should have been unwilling to disturb it; but as there is some doubt whether the jury ever regarded the existence of this fact as important in the case, and as no injury can result from another trial, and much consideration is due to the public interests involved, I am of opinion that the motion for a new trial ought to be granted.
      Justices NOTT, BAY and JOHNSON, concurred.
 

"Reports of cases determined in the Constitutional Court of South Carolina" by D. J. McCord, A Member of the Columbia Bar, Vol.II, Being a continuation of Nott & McCord's Reports; Vol.II, pgs.129 to 131; ("McCord") Vol.II, pgs.80 to 81 (California State Law Library, Sacramento, 1/2004)
      THE STATE vs. JOHN DUNCAN; Constitutional Court of South Carolina; 2 McCord 129; May term, 1822.
      (MAD: headnotes not included here)
      TRIED in Charleston: -- The defendant was indicted for a nuisance in obstructing Coming's creek, a branch of Ashley river.
      The indictment charged that this was a navigable creek and public highway; and the first count charged that the defendant erected and continued a dam across it. The
      2nd count charged that the defendant maintained and continued a dam across it, which had been before erected. On the trial of the case the jury found the following special verdict:
      "We find Coming's creek a highway over which a dam has been erected. That previous to 1770, the landing places on Harleston's green was private property, but subsequent to that period, streets have been located, and Lynch street occasionally used as a landing place. Should this landing be such a one as the law recognizes, we find the defendant guilty, otherwise not guilty."
      On this finding, the judge who presided in the court below, pronounced the judgment of guilty against the defendant; and he now moved to reverse that judgment on the ground, that by the finding he is not guilty on the charge laid in the indictment, and is therefore entitled to be discharged. If this motion should fail, he moved for a new trial on the ground that the judgment of guilty cannot be pronounced against him on the verdict found.
      Mr. Justice JOHNSON delivered the opinion of the court:
      To authorize the court in pronouncing its judgment on a special verdict, the legal affirmative or negative conclusion must follow as a necessary consequence from the facts stated. This cannot happen where they are doubtful, for the obvious reason, that the premises from which the deduction is to be drawn are wanting; nor can it happen for the same reason where distinct facts are set in opposition to each other.
      In examining this verdict, it will be necessary to connect with it for the purpose of understanding it correctly some additional circumstances, and especially as to that part which relates to the landing on Lynch street, on the character of which, it appears from the question propounded by the verdict, the jury thought the guilt or innocence of the defendant depended. Coming's creek, as I understand it, is a small branch of Ashley river, running into the town, on the bank of which Lynch street terminates, and at which is the landing spoken of. The defendant is not charged with obstructing this. And the inquiry whether this is or is not a public landing, is only important so far as it serves to stamp on Coming's creek the character of a highway. If the landing is not public, there is then a terminus to the creek which is inconsistent with the character of a highway. Now if it was necessary, I should not hesitate to pronounce from the bare fact that this landing had been occasionally used since the year 1770, without fixing the time when the use commenced, or how long continued, or without being informed whether the use was general or special, continued or interrupted, that it was not ascertained to be such a landing as the law recognized as public; and it is apparent that the converse of this conclusion was assumed, as the ground on which the finding that Coming's creek was a highway was predicated. So that in truth, the conclusion drawn from a part of the facts stated is at war with other facts, and when taken together the mind is unable to deduce the unerring conclusion necessary to a legal deduction, and no judgment can be pronounced upon them.
      It has been urged in opposition to this motion, that so much of the finding as relates to the landing at Lynch street is irrelevant to the matter in issue, and that the court have the power of amending it by expunging that part as surplusage, and that by the same means they may supply the notorious fact, that the dam, although not erected by the defendant, was maintained and continued by him as charged in the second count in the indictment, and thus be enabled to sustain the judgment of guilty. The power of the court to amend in some cases, has not been controverted and is well supported by authority. (Vide Croke Eliz. 480. 2 Rolls. Abr. 693-5. Dyer, 372. 1 Chitty Crim. Law 444-644.) But there must be some limitation to the exercise of this power. No case has been adduced in which it was carried so far as to supply facts incompatible with those found. And I venture to affirm that there is none such; for if carried to that extent it would be an infringement of the right of trial by jury, to whom the law has confided the determination of facts. Now if the court take upon themselves to amend the verdict by expunging that part, which has been before shown to be inconsistent with that relied on as evidence of the defendant's guilty, they create a new state of facts inconsistent with that which is expunged. And by the same rule, the defendant might call on the court to strike out that part on which the state relies and the judgment of not guilty would follow. There is, upon the whole, no facts upon which the court can pronounce its judgment, either for or against the defendant, and a venire de novo must be awarded.
      Justices NOTT and COLCOCK, concurred.
      KING and DRAYTON, for the motion.
      HAYNE, Att'y-Gen. and HUNT, contra.
 

"Reports of cases determined in the Constitutional Court of South Carolina" by William Harper, State Reporter, Second Edition, to which is added an appendix, containing several decisions of the Court of Appeals never before published; ("Harper's Law Reports") pgs.276 to 279 (California State Law Library, Sacramento, 2/2004)
      JOHN DUNCAN ads. BENJAMIN A. MARKLEY; Constitutional Court of South Carolina, Charleston; Harp. 276; January term, 1824.
      The defendant kept up a dam or bank across little Cumming's Creek, which is a public highway, to obtain water for his mill. In consequence of stopping the creek, the plaintiff sustained some special injuries to his mill, for which this action was brought. The witnesses on the part of the plaintiff proved that damage had been occasioned to the plaintiff's mill by the dam erected by defendant, both before and after the bringing of the action.
      The evidence was submitted to the jury by the Court, with directions to find for the plaintiff, damages, not only for the injuries done prior to the commencement of the action, but for such as had been sustained since. A verdict was accordingly rendered for the plaintiff. A motion was now made for a new trial on the following grounds, viz:
      1. That the damages were excessive, and not authorized by the evidence; and,
      2. That for the injuries sustained after the commencement of the action, damages ought not to have been given.
      The opinion of the Court was delivered by Mr. Justice HUGER.
      On the first ground the appellant must fail, as the Court can discover no error in the estimate of damages made by the jury, on the evidence submitted to them.
      On the second ground, judgments generally refer to the situation of the parties at the commencement of the suit. If at that time the plaintiff had no cause of action, he must suffer a nonsuit. It is then the defendant is informed of the wrong with which he is charged, and the redress which is demanded. The declaration, which is but an amplification of the writ, must set forth the form and manner of the injury, to enable the defendant to file the pleas necessary to his defence, and the judgment must correspond with the pleadings. If new matter, however, be introduced, subsequent to the pleadings, the defendant may be surprised, and the judgment of the Court may not conform to the pleadings.
      There are however exceptions to the general rule; but these exceptions occur where the reason of the rule ceases, or the legislature in its power has interfered. Of the last class, the action of trespass to try title and for damages, is one. Under the authority of the act creating the action, damages are given to the time of judgment, and no subsequent action can be supported for mesne profits. (Sumter and Lehre, Treadway, 102.) Of the first class of exceptions, is the action of assumpsit, brought on contracts for the payment of money with interest. In such actions the plaintiff is always permitted to recover interest to the date of the judgment; but here the interest accruing after action commenced, is the certain legal result of the contract on which the action is brought, and therefore the defendant cannot be surprised. In these cases the plaintiff would be without remedy, were not the mesne interest included in the judgment. For action could not be brought for the interest, after satisfaction had for the promise. (2 Burrows, 1087.) But in an action on the case for special damages for a public nuisance, the judgment must conform to the general rule. It is not to be forced within the reason of the exceptions. There is no necessary, certain connexion between the injuries sustained before and after the commencement of the action. It does not follow, because a special injury has been sustained at one period of time, that another is to follow at any interval, or at all. If, therefore, the plaintiff be permitted to give evidence of an injury sustained subsequently to the bringing of the action, the defendant may be surprised; for he may not know of the injury sustained, nor be prepared to defend himself. Nor is it necessary to the justice of the case, for the plaintiff may bring his action, toties quoties, he may sustain an injury. (3 Bl. Com. 220. 2 Esp. N.P. 269.) In the case of Robinson and Bland, (2 Bur. 1087,) Lord Mansfield observes that "it is agreeable to the principles of the common law, that whenever a duty has occurred pending the writ, for which no satisfaction can be had by a new trial, such duty shall be included in the judgment to be given upon the action already pending." And in Robert Pilford's case, (10 Coke, 117,) it is said that in personal actions, damages shall be recovered only for the wrong done before the writ brought; but in real actions he recovers damages pending the writ. The motion for a new trial must, therefore, be granted.
      NOTT, COLCOCK, GANTT, JOHNSON, and RICHARDSON, Justices, concurred.
      PETIGRU, and KING, for motion. HUNT and KENNEDY, contra.
 

"Reports of cases argued and determined in the Court of Appeals of South Carolina" by D. J. McCord, State Reporter, Vol.IV, Containing Law Opinions in 1826, 1827 and 1828; Vol.IV, pgs.346 to 353; ("McCord") Vol.IV, pgs.194 to 197 (California State Law Library, Sacramento, 1/2004)
      HARRIET BROWN vs. JOHN DUNCAN; Court of Appeals of South Carolina; 4 McCord 346; November term 1827.
      (MAD: headnotes not included here)
      THIS was a suit for the recovery of dower in a tract of marsh land, lying at the upper end of Broad street, in the city of Charleston, purchased in August, 1817, by John Brown from the city council of Charleston, and mortgaged by him to them, for the payment of a large proportion of the purchase money. The council omitted to record their mortgage, and in April, 1818, Brown gave a second mortgage to Jacob R. Valk, which was recorded on the 5th of May following. In the fall of 1818, Brown failed and assigned all his property. John Duncan filed his bill in equity against Jacob R. Valk, Patrick Duncan, Joshua Brown, Myer Moses, and the assignees of Brown. All the defendants answered the bill. He claimed to set up a parol agreement by Brown, to mortgage the property then called Brown's Mill Establishment to him in preference to the mortgage to Valk, on the ground that Valk had notice of the agreement. The city council also filed their bill against Valk to have their mortgage preferred to his, on the ground of notice of it to him. Valk answered and denied notice. The late circuit and appeal courts of equity took up both bills and answers as one case, and decreed them. The bills, answers, and decrees of the chancellor and appeal court, were produced in evidence. The decree of the appeal court, so far as affects the present case, ordered the property to be sold, and the first proceeds applied to pay Valk's mortgage, and the balance to the council, to the extent of their debt. The property was sold subject, as appeared by the evidence of the commissioner in equity, to a contingent claim of dower, and after discharging the mortgage of Valk, a balance of nine thousand five hundred and seventy-two dollars in the bond of the purchaser, John Duncan, was paid over to the city council, who, on the application of Brown, then discharged him from the balance of the debt. On these facts, the case was submitted to the court and jury. The counsel for the demandant contended that she was entitled to her dower in the premises, and the counsel for the defendant, that she was not entitled to her dower in an equity of redemption, which was all that was in Brown under his mortgage to the city council. The arguments had closed, and the court was charging the jury, when the counsel for the demandant stated that the demandant considered the purchase from, and the mortgage to the city council, as two distinct transactions, and called the attention of the court to the date of the conveyance of the 1st, and the date of the mortgage of the 13th, and that, therefore, she was entitled to her dower, in the whole lands. The counsel for the defendant insisted that until that moment, both the purchase and mortgage had been treated by all parties as one transaction, and that evidence could be immediately produced to prove this allegation.
      RICHARDSON J., who tried the case, charged the jury that the widow was entitled to dower in whatever remained after payment of the mortgage. What that would amount to was not then a question for adjudication; but that the only question for them was, whether the husband had been seized. And under the case made by the pleading without prejudice to the rights of either party, or to the evidence that might be produced as to the extent of the dower, the court directed the jury to find the demandant entitled to dower in the lands.
      The defendant now moved for a new trial on the grounds:
      1st. That a wife was not entitled to dower in an equity of redemption.
      2d. That if the plaintiff in this case was entitled to her dower in the equity of redemption, it must be subject to the mortgage, and the jury on the pleadings ought to have been directed so to find.
      3d. That after the evidence was closed on both sides, and the case had gone to the court and jury, a new point was made by the plaintiff, which was supposed to have been conceded to the defendant, and which he was furnished with evidence to disprove.
      Before these points were argued in the court of appeals, the commissioners made their return, which was confirmed by the court, and the additional grounds of appeal were taken, viz.:
      1st. That the commissioners should have set off a part of the land for the demandant's dower, by metes and bounds, and not have assessed money in lieu of land.
      2d. That in the assessment of the value of the premises in question, the sum paid by the defendant to the city council, to wit: $8000 and upwards on the original purchase money of the premises, should have been deducted from the sum of $30,000 fixed by the commissioners as the value; and that a proportional abatement in the assessment of dower should have been made.
      KING, for the motion. By the common law the mortgagee stands in the relation of trustee, and therefore she is not endowable of an equity unless she redeem.
      In the case of Bogy vs. Rutledge, 1 Bay, the rule laid down is, that the wife is not endowable in lands purchased by the husband, and at the same time mortgaged for the purchase money, unless it is redeemed. Under this rule she is only entitled to dower in what remains after paying the mortgage to the council. The court ought to control the commissioners in the capricious assessment of money in lieu of land. It is apparent that it will operated unequally and unjustly in this case. The whole fee simple will not in all probability sell for more than the sum assessed, perhaps not so much. The objection that a partition of the mill pond would be destructive of the value of the whole, will apply even with more force to the defendant, and it does not lie with the demandant to say, that she will not accept a part of the soil because it will injure the defendant.
      PETIGRU, attorney general, contra. Dower is favored in law. In the case of Bogy vs. Rutledge, the mortgage was executed at a time when the mortgagee was by law the legal owner of the estate, and there the deeds were contemporaneous.
      So in the case of Crafts. There the conveyance and mortgage was before the marriage, and the husband was not seized except sub modo during the coverture, and therefore the wife could not be endowed.
      The cases cited are instances in which the husband was only seized in the instant, and yet the wife was entitled to dower. The rule in law and equity is the same. In equity the seller has a lien for the purchase money; but no case can be found in which the wife has in such case been deprived of dower.
      Dower is so much favored, that the wife of a mortgagor before marriage, is entitled to dower against all but the mortgagee. So although the husband was never seized of any thing except the equity of redemption, as when the husband inherited the equity. Admitting that the sale in this case was made under an agreement to mortgage; the question then is, whether the wife is barred by an agreement to mortgage, and there is no case, book, or record in which a precedent for it can be found. Collins vs. Terry, 7 Johns. 217. According to the rule laid down in this case, the wife was entitled to be endowed of the value at the time of alienation. Duncan gave $41,000, and according to that rule she was entitled to be endowed of the third of that sum. The act confines her dower to the value at the time of alienation, and it must work both ways, whether the value be improved or diminished.
      KING, in reply. It will be found by reference to the cases quoted, that none of the persons resisting the claim of dower claimed under the mortgagee, all of them seem to save his rights. Defendant claims under the city council the mortgagee.
      [Opinion] CURIA, per NOTT J. This is an application to this court to reverse an order of the court below affirming the return of commissioners assessing the sum of five thousand dollars for the dower of the demandant in the lands in question. The principal ground relied on by the appellant, is, that the deed from the city council to Jonathan Brown, and the mortgage by him to the city council, were simultaneous acts, and, therefore the momentary seizin of Brown merely for the purpose of reconveying the same back by way of mortgage in order to secure the purchase money was not such a seizin as would entitle his widow to dower, and that although the dates of the two deeds are different, yet that the delivery of both was contemporaneous and that the advantage taken after the testimony was closed, of the difference in the dates, was a surprise upon the party and an objection which the defendant could have removed, if he had been apprised that such a ground would have been relied on. I consider it a very well settled rule, both in law and equity, that a mere transitory seizin of a husband of a tract of land for the purpose of reconveying by way of mortgage, would not at common law entitle the wife to dower. A mortgage at common law was a conveyance of land subject to defeasance upon the payment of the money which it was intended to secure, and as the fee vested in the mortgagee, there was nothing left in the husband of which the wife could be endowed. It is, however, otherwise in this state. The mortgagor retains the legal estate, and the mortgage is only considered as a pledge for the security of the money. But it was held in the case of Mrs. Crafts vs. the Ex'ors of Crafts, 2nd M'Cord, 54, that although the husband still retained the legal estate, yet that the mortgagee having obtained a vested lien before marriage, his security could not be varied or diminished by any after ct of the mortgagor, and that although the wife was entitled to dower, it must be subject to the prior incumbrance. I think that the same principle will apply in this case. If the two deeds were simultaneous, the widow can only be entitled to dower subject to the mortgage to the city council, or of the surplus over and above that incumbrance. If, therefore, the court could see that the defendant had sustained any injury, or rather, if we did not see that no injustice has been done by the sum assessed, a new trial might, perhaps, have been granted on the ground of surprise. But it will be seen by looking through the whole case, that the amount ultimately found due to the city council was about eight thousand dollars. That the land was sold to the defendant for forty thousand dollars; so that the sum of which the widow was entitled to be endowed, was thirty-two thousand dollars. The act of the Legislature of 1824, declares that the value of the land at the time of alienation shall be taken as the basis of calculation. The sum of forty thousand dollars was not only the sum for which the land was sold, but it was sold subject to the claim of dower, and that was the sum at which it was valued by the commissioners by whom the dower was assessed. But they considered the property as having deteriorated in value, so that at the death of Brown, it was worth only thirty thousand dollars, and they took that sum as the predicate of their assessment. In that respect the commissioners did wrong, as the act expressly requires that the dower shall be assessed according to the value of the land at the time of alienation, and not at the time of the death of the husband; and although that rule may perhaps, sometimes operate oppressively, yet I do not know that as a general rule, a better one could be adopted. But whether correct or not, it is one established by the Legislature, and must, therefore, be the rule of decision for this court. The sum, therefore, out of which the dower has been assessed is less than the value of the land at the time of alienation, after deducting the sum due the city council. It is less than the amount to which the widow would be entitled upon the principle contended for by the defendant himself. Admitting, therefore, that the facts exist on which the defendant relies, they furnish no ground for a new trial on his part. Another ground relied on is that the commissioners ought to have assigned the dower in the land itself and were not authorized to assess a sum of money in lieu thereof, without the consent of the defendant. It is apparent that injustice must sometimes be done by this method of proceeding. I recollect a case, where the sum raised by the sale of the whole tract of land in fee simple was not sufficient to satisfy the amount assessed for the dower. But the act is express on the subject. The commissioners are made the judges of the question, and unless it is apparent that they have committed some error, their decision must be final and conclusive. But there does not appear to be any error in this case. The commissioners have returned that "on consideration of the state of the premises, we are of opinion that the demandant's dower cannot be set off by metes and bounds, without great injury to all the parties concerned." It is, at least, doubtful whether the court can inquire into the reasons on which these opinions are founded. They are required to go on the premises to enable them the better to judge of the matter from their own view, and even if we are authorized to reverse their proceedings, I do not discover any evidence which made it the duty of the commissioners to come to a different conclusion. I am of the opinion, therefore, that the motion ought to be refused. New trial refused.
 

END

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