The opinion of the court was delivered by
Mr. Justice Pope.The facts uuderlying this controversy are sufficiently stated in the Circuit decree, which, to that extent, must appear in the report of this case. Two of the defendants, Charles C. Law and J. P. Phillips, as survivors of Phillips & Jackson, have appealed from the decree of his honor, Judge Izlar, filed on 6th day of May, 1893, on the following grounds, to wit: 1. Because his honor erred in holding that $1,875 of the trust money, under the marriage contracts set out in the complaint, was invested in the Stoney Point plantation; whereas he should have held that only $1,200 was so invested, or, at most, $1,575. 2. Because he erred in holding that only $3,125, with interest, was due on the mortgage given by Mrs. Law to C. C. Law. 3. Because he erred in not holding that the children of Mary D. Caldwell should account to the estate of Mrs. Law for the value of the seventy-seven acres, being a part of Stoney Point conveyed to her by Mrs. Law in 1879; or if not to account in that way, then that the value should be charged to them as so much upon what may be due them of the trust estate; and if more than is due them, then to account for the balance. 4. Because he erred in directing one-half of $1,875, and interest, to be paid to the children of Mary D. Caldwell; whereas he should have ordered such portion as they may be entitled to, to be held until the land conveyed to their mother by Mrs. Law should be accounted for. 5. Because he erred in not holding that the seventy-seven acres conveyed to Mrs. Caldwell by Mrs. Law, being a part of the Stonev Point plantation, were liable for their pro rata share of the trust funds which were paid upon the purchase of the Stoney Point. 6. Because he erred in crediting to the trust estate $300, which he states is necessary to make up the purchase price of Stoney Point, to wit: $5,000; whereas the $3,500 advanced by Mrs. Law, and the $1,575 of the trust money, would make in all *338$5,375. . 7. Because he erred in allowing interest on the amount of trust funds found by him to be invested in Stoney Point from the death of Mrs. Law; and in not holding that Mrs. Mary D. Caldwell or her children should be liable for interest on the value of the seventy-seven acres aforesaid from the same time. 8. Because he erred in holding that the- mortgage given by Mrs. Law to Phillips & Jackson is not a valid lien upon Stoney Point. 9. Because, after holding that said mortgage was invalid, he erred in not directing that the judgment of Phillips & Jackson v. Mrs. Law, which was included in the mortgage, should be paid out of the proceeds of Stoney Point.
We will first consider the eighth and ninth grounds of appeal, involving, as they do, the entire contention of J. P. Phillips, as survivor of Phillips & Jackson; and if we should find that his exceptions are not well taken, then J. P. Phillips has no further interest in the matters involved in the other grounds of appeal.
1 The complaint alleges that said Phillips is the holder of a judgment, which, on the record, appears to be unsatisfied, and upon which some seventy dollars is apparently due; and, also, that said Phillips holds a mortgage duly recorded upon which about $200 is apparently due, and that both are liens upon the lands sought to be partitioned; but in such complaint it is alleged that neither said judgment nor said mortgage are upon proper obligations or debts of Desdemona S. Law, deceased, but the same were given to secure the debts of her husband, Charles C. Law, and were not contracted for the benefit of, or on account of, any separate estate of the said Desdemona S. Law, deceased, though as now standing, such judgment and mortgage are clouds upon plaintiffs’ title to said lands. In the answers of Phillips and Charles C. Law, these facts are denied.
It- seems that the mortgage was given in 1884, and that Mrs. Law departed this life in December, 1887. The decree of the Circuit Judge disallowed both claims of Phillips as valid claims, and in discussing these claims, the Circuit Judge states: “The next question is that in relation to the Phillips & Jackson mortgage. There is no question as to the execution and deliv*339ery of the note and mortgage by Desdemona S. Law. There is, however, no testimony in regard to the consideration of this note and mortgage. The only witness examined with reference to these papers was J. P. Phillips, the survivor of the late firm of Phillips & Jackson. All he says is: ‘All the credits are on the papers. I had no knowledge at the time I took these papers of any trust affecting the property. The mortgage includes the judgment that is set up in the complaint, and represents all that Mrs. Law owes me. It was given for full value.’ ” We have compared the statement made by the Circuit Judge of the testimony with the “Case,” and find that he was strictly accurate in its reproduction.
We have shown by the pleadings that the plaintiffs tendered, and the defendants accepted, the issue that these debts did not have the necessary basis for their support as debts secured by lien on the property of Desdemona S. Law, deceased, to wit: that she being a married woman, and such debts being contracted subsequent to the year 1882, it was necessary that such debts should have been contracted with respect to her separate estate. Here there is not the slightest testimony in favor of Phillips’ debts coming within this class. In other words, he has absolutely failed to successfully meet the issue he had accepted by his answer. Under such circumstances we are left no other course, under the repeated decisions of this court in regard to such issue, but to overrule these exceptions (8 and 9). Taylor v. Barker, 30 S. C., 242; Chambers v. Bookman, 32 Id., 455; Belzer, Rodgers & Co. v. Durham, 37 Id., 354; Habenicht v. Rawls, 24 Id., 461; Aultman v. Rush, 26 Id., 517; Gwynn v. Gwynn, 27 Id., 525.
2 It remains now to investigate the grounds of appeal presented in behalf of Charles C. Law. The first ground of appeal alleges that the Circuit Judge should have found as a fact that only $1,200, or at most $1,575, of the trust estate of Desdemona S. Law went into the purchase of the Stoney Point plantation of land, whereas he found as a fact that $1,875 of this trust estate was so invested. The appellant well knowing the great respect shown by this' court to the findings of fact by the Circuit Judge, earnestly requests the court to scrutinize the *340testimony closely for itself. We have done so, and with reluctance state that we see no ground upon which to base a conclusion at variance with that reached by the Circuit Judge. On all hands it is admitted that $1,200 of trust funds was so invested. The appellant admits that he paid $375 additional of trust funds, but claims that this $375, although paid by him of the trust funds, was really his own money, as the trust estate owed him that money. We, with the Circuit Judge, are not satisfied with his explanation. When it is considered that Mrs. Law received $2,500 of this trust estate, and, according to the testimony, paid $1,200 at one time on this purchase — paid himself $857.34 — there was still left the sum of $442.66 in his hands. From this sum of $442.66, no doubt, this $375 was paid. This accounts for $1,575 of the purchase money of $5,000 paid for the land. The Circuit Judge found from the testimony that $300 additional was paid from the trust estate. He says in this connection: “He [C. C. Law] only claims that he advanced $3,500. This would leave [he means by subtracting $3,500+$l,200 from $5,000] a deficit of three hundred dollars of the purchase price of the plantation unaccounted for; and he does not undertake to show where this sum came from. As he had in his hands at the time moneys belonging to the trust estate, the presumption is conclusive that that sum was paid out of the trust funds in his hands.” This exception is overruled.
The next exception, the second, alleges error in the Circuit Judge in finding that Charles C. Law only advanced $3,125 of the purchase money, and that his mortgage only secured that amount and interest, iustead of $3,500 and interest from the death of Mrs. Law, which occurred 29th December, 1887. Charles C. Law claimed to have advanced $3,500 of the $5,000 paid for the land, and his wife gave him a mortgage on the land to secure this sum. But in considering the first exception, we have just held that $375 of the $3,500, claimed by him as paid of his own funds, was really of the trust estate. It necessarily follows that $3,125, and not $3,500, was the sum paid by him. This exception is overruled.
*3413 *340We will next consider the third, fourth, and fifth exceptions by Mr. Law. It must be borne in mind, in considering these *341exceptions, that Mr. Law now has no interest in the trust estate of his wife, Desdemona S. Law, at her death; by his marriage settlement he shut himself off from any interest therein after her death. He and the offspring of himself and wife, Desdemona S., who are plaintiffs here, are at arm’s length from each other. In other words, this is a family fight (always to be deplored), in which the children are on one side and the father on the other side. One of Mrs. Law’s children, Mrs. Caldwell, received a deed from Mrs. Law in 1879 for seventy-seven acres of the Stoney Point plantation, in consideration of love and affection, upon the condition and limitation, amongst others, that she or her issue shall account for the gift of said land at a fair valuation as a part of her distributive share of her (Mrs. Law’s) estate. Mrs. Law died intestate. This land having been conveyed to her as her absolute estate, was held by Mrs. Law freed from the control of any one, subject to the repayment of the trust funds invested in its purchase, and the payment to her husband, Charles C. Law, of the money he had loaned her, which was secured by her mortgage. The decree of Judge Izlar fixed these facts, and from them there is no appeal. It is very evident that there will remain nothing for partition of the proceeds of sale of this land. It cost $5,000. The trust estate is due therefrom $1,875, and interest from 29th December, 1887,' and Charles C. Law is to receive nearly $4,200, with interest from 6th May, 1893. The place only realizes a rent of 1,000 pounds of lint cotton. So, therefore, from any standpoint as an heir at law of the estate of Mrs. Law, her husband, Charles C. Law, can hope for nothing from the proceeds of the sale after the payment of these debts. What interest can he have in the estate of his deceased wife as an heir at law, so far as the portion of the land, seventy-seven acres, conveyed by his wife to Mrs. Caldwell, is concerned? The very instrument he sets up, the mortgage from his wife to himself, by its very terms denies him any rights in the seventy-seven acres tract for the payment of his mortgage. “Exclusive of the amount of land given by me to my daughter, M. D. Caldwell,” is its language. Mr. Law is not the guardian ad litem, of any infant plaintiffs; he certainly does not represent any of the adult plaintiffs. He is *342a volunteer, therefore, except as to his mortgage debt, in the questions suggested by these exceptions. These exceptions being alone presented by Mr. Law, and in no wise affecting his interests, as we have already seen, must be overruled.
2 We need only say as to the sixth exception, that our disposition of the first exception relieves us of the necessity of doing more than declaring it overruled.
3 The seventh exception complains that interest was allowed on the $1,875 of the trust estate invested in the lands from the death of Mrs. Law, 29th December, 1887, and that no interest was allowed on the value of the seventy-seven acres conveyed to Mrs. Caldwell from the same time. The Circuit Judge could not have held that the $1,875 bore interest during the lifetime of Mrs. Law, for by her deed in marriage settlement, the usufruct of the trust estate was reserved for her own use. By the same instrument, the usufruct was transferred, after her death, to her children. Such being the case, of course, this $1,875 bore interest from the date of her death. Now, as to whether the Circuit Judge should have required the heirs at law of Mrs. Caldwell to pay interest on the value of the seventy-seven acres of land in their possession from the death of Mrs. Law, we do not care to volunteer any opinion, as no such question is raised here by any one save a volunteer. Let this exception be overruled.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.