The opinion of the court was delivered by
McGowaN, A. J.This was an action for the possession of a plantation in Georgetown county, known as “ Richmond Hill.” A trial by jury was waived, and the case was heard and decided by Judge Fraser. The facts are somewhat complicated, but are so clearly stated in the Circuit judgment that it is unnecessary to repeat them here, except so far as to make this opinion intelligible. The plantation originally belonged to John D. Magill, Senior, under whom both parties claimed. He died in the latter part of 1863, leaving a will, in which John D. Magill, Junior, and William J. Magill were appointed executors, and by which the said plantation was devised to John D. Magill, Junior, and, *145we suppose, went into his possession, soon after bis father’s death. Two judgments upon debts of the testator were afterwards recovered against the executors. 1
On April 3d, 1868, the Bank of Charleston recovered judgment for $7009.50.
On June 29th, 1869, Charles Betts recovered judgment for $1120.
The plaintiff claimed Bichmond Hill under a sale by the sheriff January 6th, 1879, by virtue of a renewed execution in the case of Charles Betts, insisting that Charles Betts, as a creditor of John D. Magill, Senior, by judgment obtained against his executors after his death, had the right to sell the land devised by the debtor, the father, to his son, wherever the officer might find it, in the possession of the son, or of any other person.
The defendant claimed under a sale made in bankruptcy in the manner following: In 1869 John D. Magill, devisee in possession of Richmond Hill, went into bankruptcy, and included the plantation in his schedule. The assignee in bankruptcy sold it. The sale was confirmed, and the proceeds paid to the judgment of the Bank of Charleston, which had been proved as the oldest lien against John H. Magill, Senior, in the bankrupt proceedings in the matter of John D. Magill, Junior. In the schedule of debts of John D. Magill are included the two specialty debts of the testator above referred to. In reference to the debt due the Bank of Charleston, it is stated in the schedule that the same is in judgment against the executors. At the assignee’s sale, Robert Chisholm purchased Richmond Hill and conveyed it to W. J. Magill, and he to James E. Grant, the defendant, February 13th, 1872, who is still in possession. The defendant insisted that a creditor having recovered judgment against the executors of John E. Magill, Senior, after Richmond Hill had gone into the absolute and exclusive control of John E>. Magill, Junior, the devisee, could not buy and sell it without an action against him as devisee • but that if he could, the assignment and sale in bankruptcy amounted to a bona fide alienation by the devisee before action brought against him, and Charles Betts could not follow the land thus alienated by the devisee. He also insisted that the renewed execution upon the judgment *146of Charles. Betts, under which the plaintiff purchased, was fatally defective, and for that reason the sheriff’s deed conveyed no title.
Judge Fraser held that the plaintiff could not recover, the execution under which he purchased being fatally defective, and ordered the complaint dismissed; but he went on and held the other questions for the plaintiff, who, conceiving that the merits had been decided in his favor, filed no regular exceptions. He seeks now to correct the judgment as to the alleged irregularities in the form of the execution and to obtain from this court an order to enter judgment for him, the plaintiff, upon the following “ questions made by plaintiff’s appeal
“ 1. When a case, strictly a jury case, is submitted by consent-to be heard by a judge as by a jury, can the judge, in the absence' of a motion to that effect at the close of the plaintiff’s testimony (and after the defendant has submitted his testimony), dismiss plaintiff’s action or order nonsuit ?
“ 2. Was the renewal execution in this case so materially defective as to render the sale and deed under the sale to the plaintiff void as being made without authority ?
“ 3. Having found the material points of law and fact in favor of plaintiff, acting as a jury as well as judge, should he not have-rendered a verdict for plaintiff?
“ 4. If the Supreme Court holds that the defects in the renewed execution are not fatal to plaintiff’s title, can it not reverse the judgment of the Circuit Court wherein it dismisses the action only on account of said defects, and order judgment to be entered for plaintiff?”
In addition, however, to these interrogatories, there is an agreement in the case that all the questions made below may be heard in this court. We shall, therefore, consider the interrogatories as regular exceptions.
1. We do not know that there is in the trial of a case any particular time at which a nonsuit must be moved for. In a trial before a jury it is usually done when the plaintiff closes his testimony. This case was heard by the court. When the plaintiff closed his evidence the defendant made no' motion for a non-suit. The judge took the papers, and afterwards delivered his judgment, in which he ordered the complaint dismissed. If *147the judge’s decision must be regarded as strictly the verdict of a jury, it was, in effect, a verdict for the defendant; and the form in which it was made does not alter the case.
2. All the authorities agree that a purchaser at sheriff’s sale is not required to look closely for mere irregularities in the forms of process under which property is sold, and the court is always reluctant to decide a case involving valuable rights upon such grounds. But, from the view taken of other questions, it will not be necessary to consider the alleged defect in the renewed execution.
3. An execution in proper form to authorize sale by the sheriff was necessary, especially in a case like this, where land in the possession of one man was to be sold to pay the debt of another. If the judge conceived that the sheriff held no such process, he could not have rendered a verdict or judgment for the plaintiff.
4. The appeal court in a law case has only authority to consider alleged errors of law, and has no right to order an original judgment for plaintiff. If the Circuit judge committed error in reference to the execution or otherwise, this court would perform the whole measure of its duty by declaring the error and remanding the case for correction below.
5. Judge Fraser decided that a devisee holds his devise as a trustee with power of sale for the creditors of the testator, and can make no bona fide alienation of the devise without new consideration, which must enure to the benefit of the testator’s creditors; and that, therefore, the assignment and sale in bankruptcy of Richmond Hill for the benefit of the creditors of the devisee, including those of the testator, for which he had become liable, was not a bona fide alienation so as to place it beyond the reach of a judgment recoveredjfagainst the executors of the.testator. Was this error ?
We do not think that, as a rule, the devisee holds his devise as a trustee for the creditors of the testator. He is the legal owner of the land, which is not charged with the testator’s debts, and has the same right to sell as had the testator himself, subject only to the rights given to the creditors,' by the statutes 3 and 4 W. (& M., c. 14; Gen. Stat. 463; and that of 5 Geo. fil., *148o. 7; 2 Stat. 570. By the common law land was not liable at all for debts. Fieri facias only reaches goods and chattels. Levari facias reaches the profits of lands. A debt of itself gave the creditor no right to take land; but if the debtor made a specialty^ and stipulated to bind “ his heirs,” &c., the heir was bound as by his own obligation. He was not answerable at all under an execution against the executor, but as of his own obligation he was bound to the extent of lands he inherited; the plea of Hens per descent, if true, excused him. If he took land and aliened bona fide before action brought he was released, and stood as if he had received nothing by descent. This rule of making the heir liable for the obligation of his ancestor to the extent of lands received by descent did not include the case of a devisee. After the statute of wills it was competent for any one seized in fee to devise land, but the devisee was not bound to pay the debt of testator, even to the extent of lands received, for the double reason that he was not named in the bond of the debtor, and because the devise was in the nature of a direct conveyance; 3 Bl. Com. 418; Shep. Touch. 369; Hurls, on Bonds 103; 2 Jarm. on Wills 509; Drayton v. Marshall, Rice’s Eq. 387.
The law stood in this way for two hundred years, when a desire to enlarge the rights of creditors induced the statute of W. & M., putting a devisee on the same ground with an heir. This statute makes a devisee liable “in the same manner as the heir-at-law, notwithstanding the lands, tenements and hereditaments to him or them devised shall be aliened before action brought.” By the fifth section the heir, as in regard of lands descending, which he has sold before any process was issued against him, such heir shall be accountable for such debt to the value of said lands so aliened, “ saving that the lands bona fide aliened before action brought shall not he liable to such execution.”
There was no other law upon the subject from W. & M., A. D. 1682, to 5 Geo. II., 1732, when parliament passed a law for the colonies, styled “ An act for the more easy recovery of debts in the colonies,” by which lands were made assets for the payment of debts. This statute provides that land shall be liable *149to, and chargeable with, all just debts, and shall be assets for the satisfaction thereof, in like manner as real estate in England is liable for bonds, &c. It gives as to land “ the like remedy and process ” as before existed in reference to chattels.
Under these statutes necessarily construed together important questions soon arose. It was difficult to reconcile the statute 5 Geo. II, with the doctrine tlmt land descended to the heir or went direct to the devisee and was not assets in the hands of the executor for the payment of debts. The courts for a time hesitated, as will be seen by reference to the old rule of court as to what was necessary in a plea of plene administravit. 22d Rule of Court; Miller 414, 422; Ashe v. Drennis, 2 Bay 329. The most important of these questions were the following: As to when an execution against executors could levy and sell land devised or descended; and as to what was and what was not a bona fide alienation before the action brought, so as to place the lands beyond the reach of a judgment against the executors of ancestor.
It was early held that under the statute of 5 Geo. II, executors, whose duty it is to provide for debts, must have some qualified right to control lands, so far as creditors are concerned, and in that view it was decided “ that under a fi. fa. against the executor lands in his possession to be administered might be sold, provided the fi. fa. directed levy of the lands, goods and chattels of the testator in the hands of the executor to be administered.” D'Urphey v. Nelson, 1 Brev. 289 ; Martin v. Latta, 4 McC. 128; Gregory v. Forrester, McC.’s Ch. 318; Jones v. Wightman, 2 Hill 579; Rogers v. Huggins, 6 S. C. 359. It will not be necessary to consider this question here, for the reason that Nichmond Hill had been transferred by the devisee, John D. Magill, Junior, before Charles Betts recovered his judgment; and possibly, for the additional reason that he was one of the executors of the testator’s will. It has been held by this court that a devise to one who is also executrix, is leviable while it remains in her possession. Simons v. Bryce, 10 S. C. 354.
The important question in the case is, whether the proceedings in bankruptcy — the assignment and sale thereunder and the *150application of the proceeds to the judgment of the Bank of Charleston — amounted to a bona fide alienation before action brought, under the statute of W. & if.,' so as to place Richmond Hill beyond the reach of the Betts judgment. In 1863, John D. Magill, Junior, got possession of his devise, when, probably, the personal property was sufficient to pay all the debts. The end of the war, with its disastrous results, came on. In March, 1866, he mortgaged Richmond Hill to the Misses Shields to secure a debt of his own. In April, 1868, after he had been in exclusive possession for some five years, upon his own application he was adjudged a bankrupt. In his schedule he included Richmond Hill, as “inherited'from his father;” and among the debts were included that of Charles Betts and the judgment of the Bank of Charleston against the executors of his father.
On February 6th, 1869, the assignment was made to R. E. Fraser, assignee; and on April 18th an order for sale was made in the Bankrupt Court. All this occurred before the judgment of Betts was rendered against the executors of John D. Magill, Senior; but the actual sale was not made until November, after Betts had recovered judgment.
Was this an alienation within the meaning of the statute ? An alienation is the conveyance of an estate. The legal definition of the term is “ the act by which the title to an estate is voluntarily resigned by one person and accepted by another, in the forms prescribed by law.” 2 Bom., § 1992; Simons v. Bryce, supra. John I). Magill, Junior, voluntarily went into, bankruptcy and Richmond Hill was assigned for the payment of his debts, and -those of his testator for which Richmond Hill was liable. As to the effect of that act, the bankrupt law declares “ that as soon as said assignee is appointed and qualified, the judge, or when there is no opposing interest, the register shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, * * * and such assignment shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, * * * and all his rights of action for property or estate, real and personal, and all his rights of redeeming such *151property or estate shall, in virtue of the adjudication in bankruptcy and the appointment of an assignee, be at once vested in such assignee.” Bump (6th ed.) 352. This wás a transfer of all the title to the land which was in John D. Magill, Junior. If not so considered, the immediate result would be a conflict of jurisdiction. Southern v. Fisher, 6 S. C. 346.
Was this transfer bona fide in the sense of the statute? No action had been brought against John D. Magill, Junior, as •devisee; and we think the mere fact that the alienation was made through the forms of the Bankrupt Court, cannot change its character. He transferred property which was his own, not impressed with the character of any trust, but subject only to the rights of creditors given by statute. The defence of the purchaser from a devisee under the statute of W. & M., differs in several important particulars from the equitable defence of a purchaser for valuable consideration without notice. To sustain ■the latter plea according to principles of equity, the purchaser must be without notice, and the consideration must be valuable -■and actually paid. But under the statute of W. & M., which •created the liability of the devisee, and must, therefore, be looked to as measuring its extent, the only conditions are that the alienation must be bona fide and before action brought.
“ If the devisee shall alien or make over ” the land without fraud, it may be with notice and upon a good consideration, such as marriage. Sprackman v. Timbrill, 8 Sim. 253; (11 E. Ch. 424); Richardson v. Horton, 7 Beav. 124; (29 E. Ch.) In both these cases the settlement was made in consideration of marriage, and in both there was actual notice of the debts; but the provision made for their payment proved inadequate. Held, not sufficient to make the settlement fraudulent. In the latter case, Lord Langdale, master of the rolls, said: “ I am of opinion that these circumstances thus barely appearing, do not afford nny proof of fraud, or a want of bona fides in the execution of the settlement, The point decided is thus stated: ‘ A devised land to his son. The son, upon his marriage, settled the land upon his wife and children. Held, that the' statute of 3 and 4 W. & M. does not charge the real estate descended or devised *152with the creditor’s debts, but makes the heir or devisee personally liable to the value of the land.’ ”
No new consideration was necessary to support the alienation other than the payment of the debts for which the devisee, John D. Magill, Junior, was liable.
In our own late case of Warren v. Raymond, 12 S. C. 9, it was held that a mortgage to secure a debt of the devisee was a conveyance competent to work an alienation under the statute of W. & M., when the mortgagor was out of possession. In discussing this case, Willard, C. J., took occasion to explain the cases of Haynsworth v. Bischoff, 6 S. C. 159, and Richardson v. Chappell, Id. 146. In regard to the case last named, he says: “This court held that bona fide alienation by the devisee defeated the claims of creditors of the testator against the land devised ; but the .referee is inaccurate in stating that case as deciding that the alienee must show that the alienation was for valuable consideration and without notice, in order to come within the statute of 3 and 4 W. & M.”
We may add another feature of that case analogous to this. One of the devisees who aliened was a qualified executor of the will of the testator, yet it was held that he conveyed as devisee, and that it was a bona fide alienation.
We conclude that the assignment of Richmond Hill in bankruptcy, by John D. Magill, Junior, as a devise to him by his father before judgment was rendered on the debt of Charles Betts and before action was brought against Magill as devisee, was an alienation in íhe sense of the statute; and that it was bona fide, notwithstanding he had notice of the debt of Betts, and there was no other consideration than the payment of his debts, including those of his testator, for which Richmond Hill was liable. This view is confirmed by the fact that the purchase money of the sale made by order of the Bankrupt Court, was applied to the judgment of the Bank of Charleston, which was the oldest lien upon the estate of John D. Magill, Senior, the deceased debtor, and had been recovered before alienation by the devisee.
The judgment below is affirmed and the appeal dismissed.
SimpsoN, C. J., and McIver, A. J., concurred.