Opinion of the Court.

permit its machinery, constructed to enforce the payment of public dues to the fisc, to be used to manipulate a fraud, and if the purchaser is a party to the fraud he must share its punishment. It might be very different if he were wholly disconnected and unacquainted with it. The purchase by Moss was nothing more or less than a purchase by Mrs. Austin, the debtor and mortgagor, through her son, the plaintiff. The money paid as the price at the tax sale was only what she, as the owner of the property, owed the State, and what she honestly and in good conscience ought to have paid without, and before, and to prevent a sale. If she could not pay it, the debt being exigeant and of so high a rank, she should have acquainted her creditor and mortgagee with its imminence, instead of observing the suspicious reticence which characterized her conduct. The creditor's rights, as mortgagee and vendor, cannot be imperilled by the mortgagor's collusive combination with others to interpose an apparent but fraudulent obstacle in his way in enforcing those rights."

All that was said in that case is pertinent to the one before us. The mortgagor had obtained liberal indulgence as to time from the mortgagee. He made such representations of his embarrassed financial condition as induced the mortgagee to forbear taking steps to enforce his lien upon the property. He gave positive assurances that he would make a payment of twenty-five hundred dollars on the mortgage debt by the fall of 1882. He knew that there were taxes upon the property which it was his duty to pay, and that their non-payment endangered the security upon which his generous creditor depended for the payment of the notes given for the property. And his brother, with many expressions of friendship for the mortgagee and his family, joined in the appeals for time, assuring the mortgagee that he would himself assist in meeting the mortgagor's engagements to pay, if the mortgagee would wait until January 1, 1883. He voluntarily promised that he would keep the mortgagee "posted about things." But neither the mortgagor nor his brother informed the mortgagee that the land was advertised to be sold for the taxes which the mortgagor was under a duty to pay. The way in

Opinion of the Court.

which Charles F. Hall complied with his promise to keep the plaintiff posted was to withhold information as to the tax sale, buy the land for the amount of the taxes, and take the title in his own name. The evidence leaves no doubt that the nonpayment of taxes by the mortgagor, and the purchase of the property by his brother, was in execution of a scheme upon their part to defeat the mortgagor's lien upon the land.

In respect to the credits allowed by the decree below upon his notes to the mortgagor, no error was committed. The credit of $1340.52, as of January 1, 1879, was a trifling amount in excess of the aggregate interest that had been paid by the mortgagor up to that date. The credit of $544.15 was for the amount of the two judgments rendered against Mendenhall by a justice of the peace in Ohio, of which Clark N. Hall became the owner on the 9th of May, 1879. The plaintiff being a non-resident of Louisiana, it was proper to allow that amount as a set off against the notes. Spinney v. Hyde, 16 La. Ann. 250; Woolfolk v. Ship Graham's Polly, 18 La. Ann. 693. As to the note for $1733.61, dated June 1, 1875, and executed by the Delaware Paper Company, the court below properly disallowed it as a set off. The evidence clearly showed that it was not an enforceable obligation against that company. The attempt to use it against Mendenhall is only additional evidence of the purpose to defraud him. But, for the reasons stated, the court below erred in rejecting the plaintiff's demand for recognition of the mortgage lien upon the property.

To the extent indicated the decree is reversed, with direc tions to enter a decree recognizing and establishing the mortgage of December 24, 1875, as against Clark N. Hall, and the succession of Charles F. Hall, and as giving a lien in behalf of the plaintiff superior and paramount to any right which the succession of Charles F. Hall has in the mortgaged property by virtue of the sale for taxes and the sheriff's deed to him, and ordering a sale of the mortgaged property to satisfy the above balance due the plaintiff upon the notes given by Clark N. Hall.

Citations for Appellant.

LEE v. SIMPSON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.

No. 1418. Submitted March 17, 1890, with leave to appellant to file reply-brief in ten days. Decided April 7, 1890.

A testatrix, residing in South Carolina, who died in July, 1866, left a will made by her in 1863, by a codicil to which, made in January, 1866, she bequeathed to her daughter, then married to C., three-fourths of her interest in a bond and mortgage debt, to be vested in a trustee, who was appointed, and to be enjoyed by the daughter during her life, power being given to the daughter, to dispose of such "bequest" as she pleased, "by a last will and testament duly executed by her." In September, 1875, the daughter died, leaving a will executed in September, 1871, which recited that she was " entitled to legacies" under the will of her mother, and to a distributive share in the estates of a sister and a brother, “and notwithstanding my coverture, have full testamentary power to dispose of the same," and then bequeathed to her husband, C., "the entire property and estate to which I am now in any wise entitled and which I may hereafter acquire, of whatever the same may consist," "absolutely and in fee simple;" Held,

(1) The court is authorized to put itself in the position occupied by the daughter when she made her will, in order to discover from that standpoint, in view of the circumstances then existing, what she intended;

(2) The will of the daughter was intended by her to be, and was, a full execution of the power, because it referred expressly to the subject matter of the power;

(3) The statement in it as to "full testamentary power" referred to the fact that, although she was a married woman, she had power to 'dispose of the same" by a will, such power being given to her by the will of her mother, and did not refer to the provision of the constitution of 1868 of South Carolina, and the legislation consequent thereon, enabling married women to dispose of their own property by will;

(4) Outside of her interest in the bond and mortgage, she had practically no property.

IN EQUITY. Decree dismissing the bill. The plaintiff appealed. The case is stated in the opinion.

Mr. Le Roy F. Youmans, Mr. J. P. Carey, and Mr. Alexander C. King, for appellant, cited: Sewall v. Wilmer, 132

Citations for Appellee.

Mass. 131; Jackson v. Chew, 12 Wheat. 153; Henderson v. Griffin, 5 Pet. 151; Carroll v. Safford, 3 How. 441; Lane v. Vick, 3 How. 464; Denn v. Rocke, 5 B. &. C. 720; S. C. (House of Lords), 4 Bligh, N. S. 1; Williman v. Holmes, 4 Rich. Eq. 475; Scott v. Burt, 9 Rich. Eq. 358; Aaron v. Beck, 9 Rich. Eq. 411; Wilson v. Gaines, 9 Rich. Eq. 420; Pulliam v. Byrd, 2 Strob. Eq. 134; Bradley v. Westcott, 13 Ves. 445; Chittenden v. Brewster, 2 Wall. 191; Bunce v. Gallagher, 5 Blatchford, 481; Plant v. Barclay, 56 Alabama, 561; Blomfield v. Eyre, 8 Beavan, 250; Dormer v. Fortescue, 2 Atk. 282; Bennet v. Whitehead, 2 P. Wms. 643; Morgan v. Morgan, 1 Atk. 489; Roberdeau v. Rous, 1 Atk. 543; Curtis v. Curtis, 2 Bro. Ch. 620; Doe v. Keen, 7 T. R. 386; Mansell v. Mansell, 2 P. Wms. 678; Bilderback v. Boyce, 14 So. Car. 528; Standen v. Standen, 2 Ves. Jr. 589; Ellison v. Ellison, 6 Ves. 656; Andrews v. Emmot, 2 Bro. Ch. 297; Bennett v. Aburrow, 8 Ves. 609; Langham v. Nenny, 3 Ves. Jr. 467; Mory v. Michael, 18 Maryland, 227; Lovell v. Knight, 3 Sim. 275; Weatherhead v. Baskerville, 11 How. 329; Fay v. Fay, 1 Cush. 93; Hatfield v. Sohier, 114 Mass. 48; Doe v. Considine, 6 Wall. 458; In re Clinton's Trust, L. R. 13 Eq. 295; Pratt v. McGhee, 17 So. Car. 428; Jones v. Curry, 1 Swanston, 66; Evans v. Evans, 23 Beavan, 1; Osgood v. Bliss, 141 Mass. 474; Sewall v. Wilmer, 132 Mass. 131, and cases cited; White v. Hicks, 33 N. Y. 383; Funk v. Eggleston, 92 Illinois, 515; Andrews v. Brumfield, 32 Mississippi, 107; Webb v. Honnor, 1 Jac. & Walk. 352; Bingham's Appeal, 64 Penn. St. 345; Wetherill v. Wetherill, 18 Penn. St. 265; Patterson v. Wilson, 64 Maryland, 193; Pease v. Pilot Knob Iron Co., 49 Missouri, 124; Blake v. Hawkins, 98 U. S. 315.

Mr. Joseph H. Earle, Mr. Augustine T. Smythe and Mr. A. M. Lee, for appellee, cited: Watts v. Lindsay's Heirs, 7 Wheat. 158; Fenn v. Holme, 21 How. 481; Fussell v. Gregg, 113 U. S. 550; Blake v. Hawkins, 98 U. S. 315; Postlethwaite's Appeal, 68 Penn. St. 477; Clark v. Clark, 19 So. Car. 345; Scaife v. Thomson, 15 So. Car. 337; Ladd v. Ladd, 8 How. 10; Crane v. Morris, 6 Pet. 598; Kelly v. Jackson, 6

Opinion of the Court.

Pet. 622; Blagge v. Miles, 1 Story, 426; Warner v. Connecticut Mut. Ins. Co., 109 U. S. 357; Carnagy v. Woodcock, 2 Munford, 234; S. C. 5 Am. Dec. 470; Reck's Appeal, 78 Penn. St. 432; Still v. Spear, 45 Penn. St. 168; Finlay v. King, 3 Pet. 346; Maundrell v. Maundrell, 10 Ves. 246; Canedy v. Jones, 19 So. Car. 297; Boyd v. Satterwhite, 10 So. Car. 45; Bilderback v. Boyce, 14 So. Car. 528; Moody v. Tedder, 16 So. Car. 557; Roach v. Haynes, 8 Ves. 584; Curteis v. Kenrick, 9 Sim. 443; Munson v. Berdan, 8 Stewart, (35 N. J. Eq.) 376; White v. Hicks, 33 N. Y. 383.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the District of South Carolina, dismissing the bill of complaint of Isabella Lee, an infant, by her next friend, Gideon Lee, against Richard W. Simpson.

The following are the material facts involved in the case: On May 13, 1854, Mrs. Floride Calhoun was seized and possessed of the tract of land situate in that part of Pickens district which is now Oconee County, in the State of South Carolina, on the east side of the Seneca River, known as the Fort Hill place, containing eleven hundred and ten acres, more or less, and on that day she and her daughter, Cornelia M. Calhoun, sold and conveyed that tract of land, together with certain personal property, to Andrew P. Calhoun, for the sum of $49,000, Cornelia M. Calhoun having no interest in the real estate. Andrew P. Calhoun executed his bond under seal to Mrs. Calhoun and Cornelia, conditioned for the payment of $40,200 to Mrs. Floride Calhoun, and the remaining $8800 to Cornelia, and, to secure the payment of the bond representing the purchase money, and as a part of the same transaction, at the same time executed and delivered to Mrs. Calhoun and Cornelia separate mortgages of the same tract of land and of the personal property, to secure the payment of the sums of money mentioned in the bond.

On the 27th of June, 1863, Mrs. Calhoun made her last will and testament, whereby, among other things, she devised and bequeathed as follows: