Brown, Osborne & Co. v. Newell

The opinion of the Court was delivered by Mr. Justice Pope. This action was begun on the 10th day of March, 1900. Its object was the foreclosure of certain mortgages on lands and personal property belonging to the defendant, A. T. Newell, which said mortgages were owned by the plaintiffs, and also to- ascertain what other liens, whether by mortgage or judgment, existed as to said estate and personal property, together with the priorities of the same. Upon the coming in of the answers, an order of reference was made on the 13th June, 1900, by Judge Buchanan- of all the -issues of law and fact to- R. Y. H. Nance, Esq., judge of probate, as special referee. After several references, beginning on the 21st September, 1900, and closing 6th October, 1900, the special referee made his report on the nth October, 1900. To this report all parties filed exceptions. The cause came on- to be heard before the Hon. J. H. Hudson, sitting as a special Judge, beginning on the 10th December, 1900, and his decree was filed on- the 12th day of December, 1900. To this decree the defendant, J. Matt. Coo-ley, alone excepted. The appellant’s exceptions allege error in the decree of the Circuit Judge both as to his findings of fact and his conclusions of law. These exceptions will not be set out here but should appear in the report of the cause. The object of the appellant, so far as his exceptions are directed against the findings of fact by the Circuit Judge, *48 is to obtain from this Court a careful examination of thé testimony adduced at the hearing before the special referee and considered by the Circuit Judge at the hearing before him, so as to determine whether the findings of fact relating to the issue whether J. Matt. Cooley intended to defraud the State and county of Anderson out of their respective shares of the taxes assessed and to be assessed on a certain note and mortgage, executed on the 5th day of November, 1897, by A. T. Newell to J. W. Hardin, for $8,800, with interest thereon from the 23d day of December, 1896, at the rate of eight per centum payable annually, and which said note and mortgage were assigned by said J. W. Hardin to the said J. Matt. Cooley — the said Circuit Judge having held in his decree that such was Cooley’s purpose. Secondly. Whether such testimony established such a condition of things at the time of its execution by A. T. Newell on the 5th November, 1897, that such note and mortgage were invalid in the hands of the said J. Matt. Cooley, and on account of such alleged invalidity could not support Cooley’s claim as a mortgage creditor of A. T. Newell. And thirdly. Whether the testimony showed such a condition of things touching said note and mortgage that to enforce the same was against a sound public policy, ‘and, therefore, the Courts of this State could not lend their aid to the collection of said note and mortgage. And the other object of these exceptions was tO' show that the Circuit Judge had erred in his conclusions of law attending upon and regulating the foregoing matters. 1 The appellant bases his right to have this Court t0‘ carefully review all this testimony upon sec. 4, of art. V., of our present Constitution, which provides as follows: “Sec. 4. The Supreme Court shall have power * * * And said Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law * * *” This is clearly a case in chancery. The duty of this Court, therefore, is to examine carefully the testimony to ascertain that the findings of fact by the Circuit Judge are warranted *49 thereby. Speaking for myself, I may say that the issues of fact seek to bring to light the intention of J. Matt. Cooley to commit an actual fraud, and as was remarked by this Court in Singleton v. Singleton, 60 S. C., 231, “Fraud is a word of serious import in the law; but where the word ‘actual’ is placed in conjunction with it, it is far more serious.” Also, it is a legal maxim, “Fraud is odious and is not presumed.” The personal consequences to this defendant, J. Matt. Cooley, in addition to the stigma upon his name fixed for life by the judgment of the Courts of his country, is the loss of over $13,000, which loss would not benefit his State and county, but would alone be enjoyed by his partner in crime, if he was guilty of fraud; thereby enabling A. T. Newell, as the reward to his being a particeps criminis with Cooley, to pay every debt he owed, with a handsome surplus in cash. 2 All the findings of the Circuit Judge went to the objective point that this alleged fraud of J. Matt. Cooley was to save him from paying the sum of $69.70 to be due the State and the county of Anderson as to the tax to< be collected for the year 1898 on his bond and mortgage for $8,800, and interest thereon at eight per cent, per annum from 23d December, 1896, to 1st January, 1898, as is shown by the supply act passed in 1898. See pages 823 and 824 and 842 such acts, 22 vol. of Stat. at Darge. We will now proceed to consider these questions as stated by me as follows: The first question underlying this contention is: Did J. Matt. Cooley seek to perpetrate a fraud against the State of South Carolina and the county of Anderson in relation to taxes due or to become due to said State and county for the fiscal year 1898 and years subsequent thereto, by changing a note and mortgage for $8,800, executed on the 23 d day of December, 1896, to one executed on the 5th November, 1897 ? First, it must be observed that the mortgage executed in December, 1896, was duly recorded on that day in the office of the register of mesne conveyance of and for Anderson County. Then it must be remembered that the mortgage executed on 5th November, 1897, was duly re- *50 corded in the office of the register of mesne conveyance for said county of Anderson, in said State, on the 12th day of November, 1897. It thus appears that this bond and mortgage were really in a condition for taxation by the State and Anderson County both in the years 1896 and 1897 and 1898. So that, independent of the motives of J. Matt. Cooley and A. T. Newell, this chose in action was not concealed from the taxpayers and tax officers of said State and county, for certainly-by all the proofs offered at the hearing, J. Matt. Cooley knew that the board of assessors were accustomed to con the books of registration of mortgages to ascertain what property, although not returned for taxation, was liable to be taxed. Members of such board so testified at the hearing of this case. Secondly. By the mortgage executed in 1896 as well as that executed in 1897, the debt, together with the interest, were clearly set forth as identical in amount, rates of interest, and the land covered by the mortgage. The only effect of the second mortgage was to allow a judgment rendered in 1897 against A. T. Newell to obtain priority over the said mortgage executed in November 5, 1897, which judgment was not in existence in November, 1896. But apart from these considerations, it is urged: (a) That J. Matt. Cooley represented to A. T. Newell that the change from the name of J. Matt. Cooley to that of J. W. Hardin, in both the sealed note for $8,800 and the mortgage to secure said debt, was that said Cooley wished J. W. Hardin to go upon his bond as guardian of his nieces and nephew in Abbeville County, S. C., when in fact he had already, in 1896, been appointed guardian of such nieces and nephew in Anderson County, S. C., by giving a bond in the penal sum of $40,000. This is what the said A. T. Newell and no other witness testifies to. But, on the contrary, the said J. W. Hardin and J. Matt. Cooley testify that such representation was not made. Negatively, J. W. Hardin so testifies, for he swears that J. Matt. Cooley told him, as his ‘inducement to become his surety on his bond as administrator of Frank Lfipford, deceased, that he had left some claims in the *51 hands of said Frank Lfipford, who died in Abbeville County, S. C., and that in order to recover the money which Lipford in his lifetime had collected, as well as the notes and claims uncollected which he held at the time of his death, his attorney, Mr. McGowan, had assured him that said Lipford’s estate was solvent, and that by taking out administration, the said J. Matt. Cooley would secure said moneys which had been collected by Lfipford, as well as the uncollected claims held by Iipford as his agent. And that his said attorney also told him, in answer to his question about getting sureties to his official bond as said administrator, that by indemnifying some Abbeville man, he could get such person to go on his said bond, and that he thought of J. W. Hardin, who was a citizen of Abbeville County, and also- his connection by marriage, could be gotten as such surety; also, that the bond and mortgage the said Cooley held on Newell was the paper ■ with which he proposed to indemnify Hardin. That under this representation, the said J. W. Hardin signed the transfer of the note and mortgage, which although filled out as payable to J. W. Hardin, had not been signed by A. T. Newell, and also under the further representation that it was by this identical bond and mortgage the said J. Matt. Cooley intended to indemnify him, the said J. W. Hardin, as the surety of his administration when he was ready to execute the same; but that he would prepare a paper writing at the time he, the said J. Matt. Cooley, should have him sign his bond as administrator, showing exactly what was the purpose of the parties in the assignment of such bond and mortgage. J. Matt. Cooley, in addition to the foregoing, testified that he never called o'n J. W. Hardin or anybody else to- sign said bond after November, 1897, for the simple reason that thereafter his attorney, McGowan, told him that the estate of IfipfoTd was not as solvent as he first thought it was; and hence J. Matt. Cooley went no further'in the matter of the proposed administration upon Tipford’s estate. Now Newell testifies that J. Matt. Cooley talked to him about this matter before No- *52 vernier, 1897. That he came to him after J. W. Hardin had signed the paper. That at Newell’s suggestion the papers were submitted to. Newell's attorneys, Messrs. Bonham and Watkins, with J. Matt. Cooley’s acquiescence. That a conversation betwixt J. Matt. Cooley and said attorneys of Newell took place. That Capt. Watkins advised that the said Newell might with safety sign the papers. But it is claimed that because Newell swears one thing, and J. Matt. Cooley, with J. W. Hardin, swear another, as to whether it was an administration bond or a guardianship bond, that, therefore, it was actually a guardianship bond which Cooley said he was to. have J. W. Hardin sign as his surety. I do not SO' view the force of the testimony. Granted that A. T. Newell swears one way and that J. Matt. Cooley swears another, one on one side and one on the opposite side, where is J. W. Hardin’s testimony? He has no interest in these matters. He 'is unimpeached. His testimony is frank and full, and impresses me that he is telling the truth. He concurs with Cooley that it was an administration bond and not a guardianship bond he agreed in November, 1897, to. sign. Besides all these things, whenever a Court can reconcile testimony, it should be done. Why may not Cooley, who was guardian for his dead brother’s children, which children may have been interested in these “clock” claims along with himself, have felt that it was his duty to these children as their guardian to’ collect the claims in the hands of Frank Tipford at the time of his. death, which could only be done through an administration upon that dead man’s estate? AVhy may not this duty as. a guardian have been talked about between J. Matt. Cooley and A. T. New-ell? I can see no evidence of fraud by J. Matt. Cooley in this matter. (b) It is suggested that the testimony discloses the fact that it was the purpose of J. Matt. Cooley to evade the payment of his. taxes. (1) 'Certainly J. Matt. Cooley does not, nor did any other person, testify that J. Matt. Cooley ever said it was his purpose, in making this change in the mort *53 gage, to avoid his duty as a taxpayer either to the State or the county of Anderson. (2) But it is claimed that the testimony as to certain facts show that such was his purpose. First. It is sought to be shown that he had a contention with the tax officers so as to justify the inference that this occasioned the purpose to avoid taxation. It is quite true that the testimony establishes the fact that in the years 1897 and 1898, the county taxing officials had J. Matt. Cooley before them because they were dissatisfied with his returns for taxation. But it is admitted that the merchants of the town of Anderson, together with very many others, were also brought before this county board of equalization to change their returns. Confessedly, some of the best citizens of Anderson County were required to appear before this board, with the result that their taxes were increased. It is established by the testimony of the auditor, N. C. Boleman, based upon his books of assessment, that J. Matt. Cooley was assessed for taxation as follows : for .the year 1895, for personal property, $18,000; for the year 1896, $18,100. This was the condition of things when the county board of equalization met in February, 1897. the interval from February, 1896, to February, 1897, the board had sent one of. its members to the counties of Pickens, Greenville, Laurens and also' to the office of register of mesne conveyance for Anderson County. Mr. Cooley went before the county board of equalization, and as a consequence upon all these investigations this board raised Mr. Cooley’s assessment of personal property for taxation up to the sum of $21,100 — just $3,000 more than the year before. Before this board was the bond and mortgage executed by A. T. Newell to J. Matt. Cooley for $8,800, and was included in the whole amount of J. Matt. Cooley’s personal property assessed for taxation. In the year 1898 (February, 1898), the board of county assessors agreed with Mr. 'Cooley that they would appoint a committee of three of their body,, and that if he would bring his choses in action before them, they would arrange the sum upon which he was to pay taxes. This committee consisted of J. D. Maxwell *54 (pp. 87-99), J- F- Clardy (pp. 68 to 82), and J. Thomas Ashley (pp. 82, 83, 84). It is important to notice the testimony of these gentlemen carefully, to see if the new bond and mortgage executed by A. T. Newell to J. W. Hardin was included in the assessment made of J. Matt. Cooley’s property for taxation in February; 1898. J. Matt. Cooley swears that it was so included, and that it was entered upon the list of his securities to be taxed on that occasion by at least two members of this committee. The members of this committee admit that two of their number did make lists of Cooley’s property in order to fix a just assessment thereof. J. D. Maxwell swears that he made a complete list of these securities, principal and interest, .and so does Mr. J. F. Clardy. These lists they could not produce, although these gentlemen carefully sought for them. The members of this committee agree that Mr. Cooley brought before them, some say twenty-five or thirty and some thirty or forty mortgages and other papers, a list of which Mr. Maxwell testifies occupied one full page of legal cap and a part of a second page. This committee, singly or combined, cannot recall by name more than three of those mortgages. This they admitted when examined by defendant Cooley’s counsel on this point. The three members of this committee, when asked if J. Matt. Cooley did show this bond and mortgage in February, 1898, stated as follows: J. D. Maxwell saj^s in his testimony: “I don’t swear to* the J. W. Hardin mortgage because I do not remember it. I did not see it, as I rememberbut he says, “They might have been on the list,” at page 90. Mr. Clardy also had a “list” of these securities offered at the hearing before the said committee. He admits that his attention was called to the satisfaction of the first mortgage (that recorded in 1896), but he cannot remember that the new mortgage (that recorded November 12, 1897), was called to his attention ; but it is a fact that he could not recall but two- or three mortgages on his “list” of such securities, and he could not produce such list. He said, on page 92, “Now, in the return of 1898, we made a return for him; we did that by his exhibit *55 by taking a per centage.” The return of Mr. Cooley for the year 1898 was raised from $21,100 to $27,100; two-thirds of $8,800 and $704, the interest amounted to' $6,333. This latter amount added to the former return of $21,100, makes for the taxation of Mr. Cooley’s personal property in 1898 a little over $27,100. That is the return of 1897, $21,100 plus $6,166 added thereto. The other member of this committee was J. Thomas Ashley. At page 82 of his testimony, he testified in answer to’ the question, “Why did the committee meet with Mr. Cooley?” “Well, they were not satisfied with his return, and they made agreement with him if he would fetch up all his papers and make a true return (and appointed a committee to meet with him), that they would take his papers just as he would fetch them up.” He also testified: “If the 'Hardin (the mortgage of November, 1897,) mortgage was in the batch of papers presented by Mr. Cooley, I don’t recollect it; in fact, I don’t recollect of reading the names of them. There was a batch of them, bút I don’t recollect hearing any of the name of Hardin. Had a big batch of them, and I do not remember what was in it.” This witness testified be only remembered the Kelly mortgage, upon which the committee counted the interest, close up; “but I think that day (February, 1898,) the rest were taken at what Mr. Cooley said was the value of them. In the assessment of two-thirds of the value, I think it run up about $27,000, as well as I recollect” * * “I didn’t take any notes of it all; I could not say whether the Martin {Hardin) paper was there or not, but I don’t recollect ever hearing it named.” He further said there may have been twenty-five or thirty. “They (the committee) took them one by one and struck up the value that Mr. Cooley said, and made up his tax return accordingly.” In passing upon this part of the contention it will be observed that these three gentlemen from the county board of assessors do not swear that the bond and mortgage of J. W. Hardin was not before them; they fail to remember it, and one of them says it may have been. They were speaking over three years after the *56 assessments; they have lost the lists they then prepared of Mr. Cooley’s choses in action; they fail to' recall any of such sureties except about three out of possibly the number of forty of such papers. On the other hand, Mr. Cooley swears positively that he carried the Hardin bond and mortgage before the committee, and that it zvas included in the return which the committee prepared with his assistance in February, 1898. Besides, one of the committee in his testimony states that Mr. Cooley removed from the county of Anderson to the county of Greenville in the year 1899. I cannot find in these matters any evidence that Mr. Cooley formed any purpose in the year 1898 to evade the payment of his taxes. The note and mortgage of A. T. Newell was executed on November 5th, in the year 1897, some months before the assessors raised his return from $21,100 to $27,100, which was in February, 1898. Second. It is sought to show that Mr. Cooley had formed the fraudulent purpose to avoid taxation by this new mortgage, executed 5th November, 1897, by showing what he did in three other instances of loans made during the year 1898, to wit: Mrs. Lou. T. Keaton, who borrowed $1,600 on 19th February, 1898; Miles E. Ellison, who borrowed $1,200 on 7th October, 1898; G. B. McCoy, who borrowed $425 in the year 1894, and also a small sum in 1898, say $200, aggregating $625. Let us again examine the testimony referring to these transactions in their order. Mrs. Keaton in her testimony states that Mr. Cooley agreed to lend her $1,600; that she received the money from and executed the papers under the supervision of Col. Brown, as the attorney for Mr. Cooley, and that Mr. Cooley was not present when she received the money and executed the papers. That several weeks after the 19th February, 1898, Mr. Cooley called to see her, and told her that the papers she had executed to him were unrecorded and that he wished her to change them to Mr. Flail, and that Col. Brown would fix the papers. She did as requested, first consulting Col. Brown as to the propriety and legality of such a step. Subsequently she paid the *57 money to Col. Brown, as attorney for Mr. Cooley, without Mr. Cooley’s presence or knowledge. Mr. Miles E. Ellison borrowed $1,200 from Mr. 'Cooley; Mr. Ellison received the money from and executed the paper to Col. Brown, as attorn ney for Mr. Cooley, and in the absence of Mr. Cooley in both instances. The papers were produced and showed that the note and mortgage were made payable to H. D. Hall, but by him assigned to Mr. Cooley. Assignment to Mr. Cooley by H. D. Hall of the note and mortgage was upon the note when executed. Subsequently, on or about April, 1899, Cooley asked him to execute note and mortgage to- himself, but he paid the debt in April, 1899. The witness borrowed in the year 1899 $500 from Mr. Cooley, executing note and mortgage to Mr. Cooley himself. These papers were produced. The last mortgage was. paid up in April, 1900. Mr. G. B. McCoy (p. 67) borrowed $425 from Mr. Cooley in the year 1894. That in the year 1898 he wished Mr. Cooley to lend him a little more money, and Mr. Cooley agreed that he should have it. Mr. McCoy suggested that it be added to the old mortgage, but Mr. Cooley would not agree to that plan, telling him to execute a new mortgage, directing him to go to his attorney, Col. Joseph N. Brown, which he did. That Col. Brown had him to execute a note to Hall, which was assigned by Mr. Hall to Mr. Cooley when he signed it. This new note and mortgage is unpaid, but was not presented at the trial. What does Mr. Cooley’s side of the controversy present in reply? Eirst, Mr. Cooley himself swears that it was H. D. Hall’s money that he loaned to these three persons — Mrs. Keaton, Mr. Ellison and Mr. McCoy. That he and “Bud” Hall had been partners in some ventures. That he bad loaned this money by the direction of “Bud” Hall, whose initials were “H. D.,” i. e., “Hiram David.” When Hiram D. Hall was in this State on a visit from his home in Texas on 20th March, 1898, plaintiff and defendant, Newell, proved by their witness that Hiram D. Hall executed several blank assignments, under his hand and seal and placed them in the hands of Mr. Cooley. *58 By this testimony parties in adverse interest to Mr. Cooley have proved business relations between Hall and Cooley. Very -soon after business relations were established, we find Mr. Cooley agreeing to- lend Mrs. Lou. T. Keaton $1,600. He (Mr. C.) sends her to his attorney at Anderson C. H., Col. Joseph N. Brown, to have Col. Bro-wn draw the papers and pay her the money. Col. Brown drew the note and mortgage to Mr. Cooley. Soon thereafter Mr. Cooley finds that the papers are drawn directly to- him, and as it was the money of H. D. Hall (see page 49), which was loaned to Mrs. Keaton, Mr. Cooley went to- Mrs. Keaton and requested her to have the note and mortgage changed to-H. D. Hall. This was done but not in his presence, but that of Col. Brown as his attorney. As to- the Ellison mortgage, Mr. Cooley testifies that it was Mr. H. D. Hall’s money (see page 49). Co-1. Brown, as his attorney, drew the note and mortgage payable to H. D. Hall but assigned to- him (Cooley). These transactions occurred on the 7th October, 1898. As to the G. B. McCoy note and mortgage, Mr. Cooley loaned to McCoy in the year 1894, $425, talcing the note and mortgage in his own name; but in May of the year 1898, McCoy needed $200 more. Mr. Cooley had him to- execute a new note and mortgage to- include both amounts; this was done through his attorney, Col. Brown — the note and mortgage both drawn in favor of H. D. Hall, but assigned when made by H. D. Hall to Mr. Cooley. All these things were done in the absence of Mr. Cooley, but he testifies that he loaned McCoy some money, but in effect that he was not present when mortgage was executed, and that to him personally McCoy has paid no- money thereon. The fact is, that it was paid to Mr. B. E. Mauldin, as cashier of the Bank of Anderson, S. C., and deposited to- Mr. Cooley’s credit in that bank. At pages 135 and 136 of the “Case,” Mr. J. A. Brock, who is president of the Bank of Anderson, testified fo-r the plaintiff and Mr. Newell, that he could not say it was Mr. Cooley’s -custom to lend money on notes assigned to- him. He may have had -some transactions of that kind, but it was not the *59 rule. He, witness, did not have any of such blank notes left with him; Col. Brown 'arranged those papers. If I filled out notes for him, it was not of that kind. I don’t know whether Mr. Cooley’s name was printed on it, but they were perhaps in blank and filled out to him, or may have been printed. He had a few notes of that kind that had been transferred to him; “I don’t know when1 the transfer was made, after or before or when it was made.” Question: “Was it printed on these there, the transfer at the bottom of the paper, transfer to J. Matt. Cooley ?” Answer: “He had a few notes of that character in his package, but it was not the rule. The rule was to have a different kind of blank notes entirely, payable to him directly.” The plaintiffs, by their own witness, Miles Ellison, proved that in the year 1899, Mr. Cooley himself took Miles Ellison’s note for $500, secured by a mortgage of real estate, in his own name. This note and mortgage were produced at the hearing. The plaintiffs and the defendant proved only three notes and mortgages made to D. H. Hall and assigned to J. Matt. Cooley, aggregating $3,400. Now, can it be inferred that the taking these three mortgages in Hall’s name was to- escape taxation? Mr. Cooley testified that in the year i8p8 he took two' mortgages of real estate in his own name, Wulburn and another at Calhoun Mills. I do not think so. The testimony impresses me as follows: That Mr. Cooley was lending some money for Hiram D. Hall, and that to ear-mark the same, he took them in the said Hall’s name, taking the precaution to' have the same assigned by the said Hall to him, Cooley, so that it should be in his (Cooley’s) power to overlook the same, with the intent to protect Hall’s interests. The plaintiff proved by Hall’s father that H. D. Hall came to Anderson County in March, 1898; that H. D. Hall and J. Matt. Cooley were together at the time ;• that H. D. Hall made the assignment in blank to Cooley in the presence of witnesses. Mr. Cooley testifies that he and Hall had business ventures together. Plaintiffs’ witness, A. J. Hall, proved that his own son, H. D. Hall, had been in business with Cooley for *60 three years before the latter went to the State of Texas. Under these ’circumstances, is it not reasonable to- conclude that Cooley told the truth when he said the money was H. D. Hall’s? It seems so to me. Certainly, it is abundantly proved that it was not Cooley’s custom or “system” to take notes and mortgages payable to H. D. Hall. It is- suggested, however, that it was not necessary to take such three notes and mortgages payable to H. D. Hall and then as a part of the same transaction, to 'have Hall assign them to Mr. Cooley. That is quite true; but it must be borne in mind that Cooley was lending Hall’s money while Hall was residing in another and distant State, and that by this means Cooley could manage Hall’s business without the necessity of a power of attorney to collect money and satisfy the mortgages when paid. Besides these considerations, every one of these transactions were conducted by a highly respectable attorney, Col. Joseph N. Brown. The choses in action were kept in the vault of a well managed bank. Perfect freedom of access to these choses was accorded Mr. J. A. Brock and Mr. B. B. Mauldin, as president and cashier, respectively, of the Bank of Anderson. Mr. Cooley certainly enjoyed the entire confidence of the officers of this bank as well as that of his attorney, Col. Brown. No 'higher evidence of this could be furnished than the freedom of those officers and that attorney, which is shown by the facts that Col. Brown had these officers to turn over to him, in the absence of Mr. Cooley, choses in action, collecting the whole amount due thereon, without Mr. Cooley’s knowledge, and placing to> his (Cooley’s) credit the proceeds of such collection. Also collecting interest thereon. It is in proof that Col. Brown was the attorney for Mr. Cooley in taking all three of these mortgages. It will be presumed therefrom that Col. Brown would be no party to' a fraud on the State and county of Anderson; his character is unimpeached and unimpeachable. Again, it is brought in evidence by the plaintiffs and the defendant, Mr. Newell, that J. Matt. Cooley was guardian of his nieces and nephews, and the record of his settlement as *61 such guardian is put in evidence by them. Pursue those papers, and it is impossible to arise from such an examination without being convinced that here is a guardian who is careful, accurate and honorable. The estate in his hands as such guardian, of ist January, 1897, was $24,662.08. In April, 1900, when settled, it had been increased, after paying to his wards over $1,000 each year,to the sum of $27,937.92/ He is credited with only $210.31 as commissions. Then, too, in that return for final settlement, it will be observed how careful the guardian was to show what interest he obtained each year on such set of notes. In every day life, to learn a man’s character for uprightness, it is important to observe how that man deals with others, as well as to observe how he is treated by others in business. From these considerations, though briefly stated, I cannot conclude that J. Matt. Cooley was guilty of a fraud upon his State and county nor upon any of its people. I have not overlooked the testimony of J. Matt. Cooley, where he gives the opposing attorneys trouble in seeking for information as ff> his knowledge of his private business. These attorneys had the right to subject him to a rigid scrutiny by cross-examination, but if he could not remember the details of the transactions several years after such transactions transpired, it is not only his misfortune but that of nearly every witness examined in this cause. Notably in the matter of H. D. Hall’s initials. The plaintiffs’ own witness proved that Mr. Cooley always called Mr. D. Hall “Bud,” as well as the fact that nearly everybody else did it, likewise. Mr. Cooley as a witness gave every fact necessary to identify the particular Hall for whom he loaned money in these instances. So, also, as to the money loaned and the securities taken, he would never lend himself to a knowledge of facts in relation thereto with which he was not personally cognizant; those matters were attended to by others for him and in his absence, hence his inability to describe them. I have not been assisted in the examination of this testimony by the reasons actuating the conclusions of the referee, the Circuit Judge and Chief Justice Mclver, *62 for the conclusions reached by the special master, the Circuit Judge or the learned Chief Justice of this Court on these matters are not given. The master says: “The testimony taken in this case is voluminous and in many respects very contradictory, but I have carefully noticed the manner of each and every witness while on the stand, and after considering thoroughly the testimony and weighing the able arguments by the counsel on each side, and considering the law submitted by them, I find the following facts and conclusions of law.” The Circuit Judge, when he sustains the master, says : “I not only think that the finding of fact by the special referee in this particular is supported by the clear preponderance of the evidence, which is sufficient in civil causes, but I think the evidence supports his finding of fact in this matter beyond all reasonable doubt. Cooley’s explanation of this transaction is so- thoroughly unreasonable that it cannot for a moment gain evidence.” Chief Justice Melver, in his opinion in this case, says : “Before proceeding to- the consideration of the several questions, the solution of which will determine this case, it may be as well for us to say that, so far as the several questions of fact are concerned, we agree with the Circuit Judge in the conclusions and we do- not think it would serve any useful purpose for us to discuss these questions in this opinion, as such a discussion, would extend this opinion to- an unreasonable length. But we desire to say that a careful examination of the voluminous testimony set out in the ‘Case’ has satisfied us that the conclusions of fact reached by the Circuit Judge are fully supported by the preponderance of the evidence, and in every instance except one (if, indeed, that be an exception,) are in accordance with the findings of fact by the referee * * *” 3 2. Was the note and mortgage executed by A. T. Newell to J. W. Hardin on 5th November, 1897, for $8,800, which was assigned by said J. W. Hardin to- J. Matt. Cool-ey at the time of the execution by Newell to- Hardin, such a valid obligation as could be enforced by Cooley in this action? When the facts of this contention are inves *63 tigated, the following results are made to appear, to wit: On the 23d day of December,- 1896, one A. T. Newell borrowed of J. Matt. Cooley the sum of $8,800 in cash; for this debt Newell executed his sealed note of that date, whereby he bound himself to pay J. Matt. Cooley the said sum of $8,800 one day after the date thereof, with interest at eight per cent, from date to be computed and paid annually. That on said 23d day of Decemher, 1896, the said A. T. Newell, in order to secure the payment of said sum of $8,800, and the eight per cent, interest thereon, executed to J. Matt. Cooley, his heirs and assigns forever, a deed by way of a mortgage upon nearly 900 acres of land in Anderson County, in the State of South Carolina. That at the time of the execution of those papers, the said J. Matt. Cooley delivered to the said A. T. Newell his 'agreement, under his hand and seal, whereby he, the said J. Matt. Cooley, obligated himself to continue said loan as long as the said A. T. Newell paid on this debt the sum of $x,ooo each year, but that if said sum of $1,000 was not so paid each year, the whole amount should become due. That the said A. T. Newell did not and has not paid any of such debt and interest. That on the 5th day of November, 1897, the said A. T. Newell made a new mortgage and a new note, whereby the said A. T. Newell secured the payment of the sum of $8,800, with interest thereon at eight per cent, per annum, payable annually from the 23d day of December, 1896, unto J. W. Hardin; but that at the date, to wit: 5th day of November, 1897, the said note and mortgage had been already assigned unto J. Matt. Cooley by the said J. W. Hardin, under his hand and seal, which said assignment was actually upon the sealed note to- be signed by A. T. Newell. That the parties, Newell and Cooley, had previously agreed to such arrangement. That Newell was allowed to- consult his attorney in regard to the same, and was advised by his said attorney that the same was a safe business transaction. That Newell delivered to J. Matt. Cooley said new note and mortgage in the presence of two witnesses. That the consideration- furnished to said Newell by said Cooley was the *64 satisfaction of the note and mortgage executed by Newell to Cooley on 23d December, 1896, and also the execution by Cooley of his agreement under his hand land seal to- and with Newell, that if Newell would pay $1,000 each year, the said Cooley bound himself not to- exact payment o-f the no-te and mortgage according to their terms. The mortgage was recorded the 12th December, 1897, and the satisfaction o-f the mortgage, that o-f 1896, was made the same day. The referee found that this was a valid arrangement. The Circuit Judge did not so find. Chief Justice Mclver, in his opinion, agrees with the Circuit Judge. I agree with the referee. Clearly, the plaintiff and the Bank o-f Anderson were notified by the recording of the mortgage that this mortgage was a subsisting obligation and a prior lien at the time they took their liens on these lands. It often happens that A. executes his mortgage to B. when only a liability as surety by B. to- A. exists, and the mortgage being intended to save the surety harmless, enures to the protection of the holder o-f the note. .The surety never pays such liability, yet the record of the mortgage is held good against all subsequent encumbrances. This i-s- done when B., the surety, does not actually assign the mortgage to- the creditor. Equity steps in and enforces the right o-f the creditor. Really, one of the beauties of equity jurisprudence is its power of adaptability to all the circumstances of a transaction. In this instance, J. Matt. Cooley was induced to estop himself from claiming his admitted prior lien by deed in the form of a mortgage on these lands by receiving the mortgage of Newell, by deed executed on 5th November, 1897, to Hardin, assigned by said Hardin to Cooley prior to said execution, which, said assignment was acted upon by both Cooley and Newell as a valid deed, and on account of such consideration so furnished to Newell by Cooley, the latter surrendered his good note and mortgage. I will state that plaintiffs and defendant, Newell, and the other defendants in interest as opposed to- Cooley, rely upon the following satisfaction of the mortgage of 1896 made by Cooley: “Satisfied in full, this *65 the 12th day of November, 1897; attested by John C. Watkins, as clerk of the Court, 'and signed by J. Matt. Cooley.” Now this satisfaction is not by deed. The mortgage was a deed. To be legally cancelled and satisfied 'and its lien destroyed, Cooley should have made a deed to that effect. Yet Cooley is estopped by his representation of satisfaction entered on the records of the office of register of mesne conveyance for Anderson County. The doctrine of estoppel is involved in this action in a court of equity, where the plaintiffs and defendants other than Cooley seek to' retain the satisfaction of the mortgage by Cooley. It is an equity they have against Cooley; but has not Cooley an equity against them also? Those who ask equity must do equity themselves. Has not Cooley, under this rule, the right to demand of them that the satisfaction of his lien under the mortgage of 1896 shall be construed along with the mortgage of 1897, which was a consideration for such satisfaction? It seems so to me; and when so construed, the note and mortgege of 1897 form an actionable demand enforceable as a prior lien as against all the plaintiffs and defendants except as to the judgment in the case of A. T. Newell against W. A. Neal for certain costs. These conclusions render it unnecessary to consider the third ground of exception which may be stated, that where the object of a contract has in it as an essential part thereof, to evade the payment of taxes by one of the parties, that it invalidates the whole contract. I remark, that the consideration of the question here stated is rendered unnecessary by my previous finding of fact, that J. Matt. Cooley and A. T. Newell’s contract had no object or intention to- evade the payment of taxes by J. Matt. Cooley on the note and mortgage executed by A. T. Newell to J. W. Hardin on 5th November, 1897, and the Circuit Judge is in error as to the same. It is the judgment of this Court, that the judgment of the Circuit Court be modified as herein required, and in accordance with the recommendations of the special referee or master, it is ordered and adjudged, that the lands and per *66 sonal property be ordered to be sold, at such time, place and terms as the Circuit Court of Common Pleas for Anderson County may order; provided, that the proceeds of the sale of the lands of A. T. Newell described in the pleadings shall be applied as follows: first, to the costs and expenses of this action; second, to the payment of the judgment in the case of A. T. Newell against W. A. Neal; third, to the payment of the note and mortgage held by J. Matt. Cooley as fixed by the special master or referee in his report; fourth, to1 the plaintiffs as holders of the third, fourth and fifth liens on said lands, as found in the report of the special master or referee; fifth, to the claim of Brock Brothers as the sixth lien on said lands; and sixth and last, to the judgment of the Bank of Anderson. Also, it is adjudged that the personal property when sold, after payment of its costs of sale, be applied to the claims of the plaintiffs, as recommended by the special master or referee in his report. Messrs. Justices Gary and Jones concur in the result.