dissenting. This was an action to foreclose a mortgage executed by the testator, John W. Lewis, to secure the payment of two bonds held by the plaintiffs respectively. The mortgage covered an undivided fourth part of the commercial wharves, a property situate in the city of Charleston.
The issues of law and fact were referred to a referee whose report contains such a full and clear statement of the facts as to render a repetition of them here wholly unnecessary.
To this report various exceptions were filed by the plaintiffs, all of which were overruled by the-Circuit judge, and from his judgment this appeal is taken upon the same grounds as are set forth in the exceptions to the referee’s report.
It is very manifest that if the conclusions of fact reached by the referee and confirmed by the Circuit judge can be sustained, there is no ground for this appeal.
The rule that the findings of fact by a referee, concurred in by the Circuit judge, will not be set aside unless they are without any evidence to sustain them, or are manifestly against the weight of evidence, is so well settled and has been so frequently announced by this court that it is not necessary to cite the cases establishing it. Without entering upon a detailed examination of the testimony in this case, with a view to justify the conclusions of the referee, which is as unusual as it would be unnecessary in this case, it is enough to say that, in my judgment, after a careful examination of the testimony, there is no sufficient ground for disturbing the findings of fact by the referee, concurred in, as they are, by the Circuit judge.
It certainly cannot be said that the conclusions of fact reached by the referee are without any evidence to maintain them, and I do not think that they are manifestly against the weight of the evidence. On the contrary, it appears to me that there is very strong support for the main finding of fact that Mr. De Saussure, in making the sale, acted with the knowledge and assent of the mortgagees, in the undisputed fact that they were disappointed in the results of the sale.
This shows two things: First, that they knew of the terms of the sale, as otherwise there would be no reason in their expressing dissatisfaction; and, second, that they then understood that *525the. entire fee was sold and not merely the equity of redemption. For, if it was merely the equity of redemption which was sold, then there was no conceivable reason why they should express disappointment at the sale, as their rights could not possibly be prejudiced thereby, but they would, on the contrary, be actually benefited. The testimony leaves no doubt, not only of the fact that the property was sold for its full fee simple value, but that by selling the whole property together, rather than the one undivided fourth separately, upon which alone the plaintiffs had a lien, that fourth brought more than it would have done if sold as an undivided share. It is impossible, therefore, to believe that a mortgagee would express dissatisfaction at a sale of the equity of redemption in the property covered by his mortgage for a price equal to its full fee simple value, as by that means his chances for realizing the whole of his debt would be legally increased, especially in a case like the present, where the property mortgaged constituted the sole security, (the mortgagdr being insolvent,) and was encumbered by a large arrearage of taxes which would have to be first paid out of the proceeds of a sale ordered to foreclose the mortgage. Act of March 19th, 1874, § 126, 15 Stat. 774. In addition to this it may be remarked that the testimony tends to show that the disappointment of the mortgagees arose, not from the fact that the sale was an absolute sale of the entire interest nor from the price obtained, but from the apprehension that the proceeds of the sale of the share upon which their lien rested would be wholly, or to a large extent, consumed in the payment of taxes and other charges, leaving but little, if anything, to be applied to the mortgage.
Another circumstance which tends to strengthen the conclusion of the referee is that neither of the plaintiffs has ever yet denied the authority of the executor to make the sale, or their full knowledge of an acquiescence in his proceedings up to the time of the sale, neither of them having been examined as witnesses in the case. Numerous references were held, continuing from day to day, and although it was manifest from the course of the testimony that the defendants relied upon the fact that the executor in making the sale acted with the knowledge and assent of the mortgagees, as evidenced by the testimony in regard *526to conversations between Blake and Lewis, who were alleged to be the agents of the plaintiffs, and the executor, and the message sent to them by the executor before concluding the contract of sale, yet neither' of the plaintiffs were put upon the witness stand to disavow the authority of the executor to sell, or to deny any knowledge of, or assent to, his proceedings.
Another circumstance in support of the view taken by the referee is to be found in the condition of things existing at the time, which rendered it highly probable that the mortgagees would have done just what the referee has found they did do for the protection of their own interests. Here were mortgagees holding a mortgage as the sole security for their debt which was rapidly increasing in amount, no payment having been made in about ten years upon property on which large arrearages of taxes had accumulated, which the mortgagor had no means of paying, and which the mortgagees do not appear to have taken any steps to provide for, though the property covered by the mortgage had been forfeited for non-payment of taxes, and the time allowed for redemption was rapidly drawing to a close, in which event the security would be wholly lost. Under these circumstances the most ordinary prudence would seem to prompt the mortgagees not only to assent to, but gladly adopt any scheme by which the property could be sold to the best advantage and at the least cost possible, whereby a portion at least of their debt might be saved. This is exactly what was done. The testimony places it beyond dispute that the mortgaged property was sold to the best possible advantage, without cost to the mortgagees, and after relieving the tax encumbrance, a balance is left to be applied to the mortgage debt. Thus, the result has proved the wisdom of the course adopted by the executor, with the knowledge and assent of the mortgagees, as the referee finds, and as I must believe from all the circumstances of the case.
The apparent inconsistency of Mr. De Saussure’s acting both as executor of the mortgagor and as attorney or agent for the mortgagees is more apparent than real. He states in his answer what all the circumstances of the case confirm, that he qualified as executor only for the purpose of enabling him to benefit the mortgagees. The estate of the mortgagor was confessedly in*527solvent, and the only source from which the debt of the plaintiff could be paid was the mortgaged property, which, under the power of sale contained in the will, could be sold by the executor without delay and expense incident to an action for foreclosure. He was, at the time he qualified, the attorney of the mortgagees, entrusted with the bonds and mortgage for the very purpose of effecting a sale of the mortgaged premises, “ all parties consenting,” which possession continued until after the sale was made without any change in his instructions; and as the course which he adopted, in the condition of things then existing, was, as we have seen, undoubtedly the best for the interest of the mortgagees, as well as for the estate of the mortgagor, I am unable to perceive any real inconsistency in his conduct.
Nor do I think any weight should be attached to the remark attributed to Mr. De Saussure — that if the mortgagees refused to recognize his action they could be forced to do so by reason of the fact that the property had been forfeited for taxes — because, it will be remembered, that this remark was not made until after the sale, and after he had discovered that the mortgagees were disposed to repudiate his action in making the sale. It cannot, therefore, be fairly argued that this plan of perfecting the title in the purchaser was present to or influenced his mind at the time he made the sale.
A more reasonable inference would be that it was the offspring of a natural irritation at finding that the mortgagees were disposed to repudiate his action,- taken, as he supposed, and as he had good reason to suppose, with their assent and for their benefit.
The point raised by the appeal on the part of the executor of John W. Lewis does not appear to have been taken before the referee or in the court below, and is not properly before us for consideration.
I am satisfied, therefore, that the judgment of the Circuit Court should be affirmed.
Decree reversed.