hension of injury, not the fact of danger, is made the test. McKay v. Donald, 8 Rich. 331. This Court, upon review of many conflicting decisions and dicta, has settled upon a construction of this statute in the case of Hall v. Hall, 45 S. C. at page 178, 22 S. E. at page 822, as follows: "First. When the surety on a guardian's bond files a petition to be discharged from liability, and the Court grants an order for such discharge, and a new bond is executed, but no new letters of guardianship are issued, the surety is liable for all the property of the ward in the hands of the guardian at the time of the discharge. 2d. Such surety *** is not liable for the property of the ward that may come into the hands of the guardian after the surety has been discharged." This construction adds another feature of exceptional privilege to these classes of sureties; it relieves the surety from a substantial portion of the obligation which he assumed when he signed the bond, which was intended to secure the continuing obligation of the principal until his final and legal release. And however much the writer of this opinion may approve of the reasoning and conclusion of Chancellor Harper in the case of Field v. Pelot, McMul. Eq. 369, that there can be no discharge from future liabilities of the principa! except by revocation of his authority, and that both sets of sureties are liable for all defalcations of the principal, both before and after discharge, the substituted sureties being primarily liable, the authority of Hall v. Hall, should not now be questioned; it certainly should nct, however, be extended to sureties of other classes to whom this exceptional privilege has not been accorded by statute. We apprehend that the Court of Equity with its ample powers could not grant to a surety the relief which this statute accords to him; certainly a Court of limited power could not independently of the statute. He, therefore. who claims the benefit of a statute of exceptional privi lege must bring himself within the terms of that statute. We have been pointed to no statute, and have found none which accords to the sureties upon any other class of bonds than administration and guardianship bonds and the privilege of section 3613. It may be difficult to explain why this exceptional privillege should be accorded to certain classes of sureties. 7 and not to others, practically of the same fiduciary character; there appears no reason for the distinction. That is a matter, however, that may appeal to the legislative sense of justice; it is not a judicial question. We lay little stress upon the suggestion that the petition was filed, not by the surety, but by the children of the lunat.c. If the surety had had the right to file the petition, and it was filed by others, though the application was made upon a different ground from that prescribed in the statute, we apprehend that the surety would not be deprived of the status established by a proceeding which it has evidently ratified and the benefit of which it claims in this proceeding. It may be remarked that the order purports to discharge the surety from all liability, past as well as future. The utmost that could be claimed under this special statute would be a release from the future defalcations of the principal. For the reasons stated we conclude that the order of the Probate Court, purporting to discharge the surety, was a nullity. The relative rights and liabilities of the defendant and the signers of the substituted bond have not been considered. "The appellant has raised several questions in the printed argument which have not been considered for the rea8 son that they are not properly before us, not having been passed upon by the Circuit Judge or covered by exceptions. Syllabus. [115 S. C. The respondent has pressed with great force the objection that the exceptions do not conform to the rules of this Court, in that they fail to point out specific errors. We have not sustained the objection from an anxiety to decide these very interesting questions upon their merits. The judgment of this Court is that the judgment of the Circuit Court be affirmed. 1. 2. MR. JUSTICE WATTS concurs in the result. 10587 SMITH v. BANKHEAD. PARTITION-PURCHASER ACQUIRES UNSEVERED CROPS, THOUGH DUE AS RENT BEFORE SALE. Where land was sold in a partition suit without any reservation, and the deed conveyed "all and singular the rights, * * * rents, issues, and profits," crops still attached to the freehold when the sale was made and when the purchasers complied with their bid passed to the purchasers, though the land was rented, and the rent was payable in cotton and corn, and was due before the sale. PARTITION-FAILURE OF PURCHASERS TO EXHIBIT DEED HELD NOT TO AFFECT RIGHT TO CROPS.-Where a tenant of land sold at partition sale had attorned to the purchasers, at the request of the agent of the former owners, and the purchasers were in possession when such agent attempted to gather crops due as rent, the failure of the purchasers to exhibit their deed did not defeat their action to recover possession of the crops. Before SEASE J., York, March, 1920. Reversed. Action by J. D. and J. H. Smith against J. H. Bankhead, agent in claim and delivery. From judgment for defendant the plaintiff appeals. Messrs. J. A. Marion and W. W. Lewis, for appellants, cite: Rent payable in crops, and no time specified, is due at end of the rent period, or within a reasonable time after crops are harvested: 24 Cyc. 1170; 16 R. C. L. 928-9. All interest of owners of the land passed to purchasers under the clerk's deed, including the growing crops: 24 Cyc. 64; 16 R. C. L. 132; 88 S. E. 108; 100 S. C. 324; 8 S. C. 283; 71 S. C. 9. Rent will be apportioned where it is payable at end of year, and sale is made before it is due: 28 S. C. L. 273 (I Speer L;) 28 S. C. L. 32 (I Speer L.) Share of crops due as rent had not been severed from the freehold and passed with the land: 12 Cyc. 977; 8 R. C. L. 358-9-60, 369. Messrs. Jno. R. Hart and J. S. Brice for respondent. Mr. Hart cites: Purchaser at judicial sale is not entitled to rents which have accrued prior to date of sale: A & E. Ann. Cases 1912 B. 398. Otherwise where rent is not due: 100 S. C. 324; 28 S. C. L. 273 (I Speer L.;) 8 S. C. 282: Rent in the absence of a definite time fixed, is payable when the crop matures or is ready for market: 103 S. C. 204. March 16, 1921. The opinion of the Court was delivered by MR. JUSTICE FRASER. The defendant, J. H. Bankhead, was entitled to an undivided interest in the land described in the complaint and other lands. The defendant acted as agent for his cotenants and rented this tract to Ed. Good, a negro. An action for partition was brought, to which the defendant was a party, and this tract was sold under an order of the Court, and was bought by the plaintiffs herein at that sale. At the request of Mr. Bankhead, the plaintiffs rerented the land for the following year to Ed. Good, on the day following the sale. The sale was made on the 4th of November. The plaintiffs paid the money on the 9th of November, took their deed, and filed it for record on that day. The report of sale was confirmed on the 25th day of November. On the 19th of November, 10 days after the deed was delivered, Mr. Bankhead undertook to gather the crop, and the plaintiffs brought this action for the possession of the crops so gathered. The case was referred 31-S. C. 115 to a special referee, who found that the rent was due before the sale, and the defendant was entitled to the crop. The Circuit Court affirmed this finding. The rent was payable in cotton and corn. The record does not show that there was any reservation of anything in the order of sale, in the deed, or by notice at the sale. Much has been said in argument about the time at which the rent was due and the failure of the plaintiffs to exhibit the deed to the land, and they were treated as crucial points in the case. I. It makes no difference when the rent was due. 1 The The crops in dispute were still attached to the freehold when the sale was made and when the plaintiffs complied with their bid. The sale of the land carried with it all that was attached to the land, houses, fences, trees, cotton stalks, with their unpicked cotton, and corn stalks and unsevered corn. So far as the parties to that action were concerned, all were included in the sale. deed that has been confirmed contains the following: "Together with all and singular the rights, members, hereditaments, and appurtenances whatsoever to the said premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title and interest, dower, possession, property, benefit, claim, and demand whatsoever, both at law and in equity, of the said plaintiffs and defendants, and all of the parties to the said suit, and of all other persons rightfully claiming or to claim the same or any part thereof, by, from, or under them, or either of them." It thus appears that the rents were expressly conveyed. The defendant was a party to the case under which the sale was made. |