The opinion of the Court was delivered by
Mr. Justice Jones.
This is a “controversy without action” based upon an agreed statement of facts, and involved merely the construction of a written agreement between the Bank of Charleston, N. B. A., and the respondents, heirs at law of Paul S. Felder, deceased, with reference to the sale of certain lands mortgaged by Paul S. Felder to the Bank of Charleston, N. B. A., and -the disposition of the proceeds of the sale and the balance of the mortgage debt. In a suit by the bank to foreclose the mortgage, the heirs of FeldeT made contest that the mortgaged premises did not belong -to the estate of Paul S. Felder, but to them as remaindermen after the falling in of the life estate of their mother, Ann M. Felder. This controversy was compromised by the agreement in question, which is as follows:
“Proposition of Bank of Charleston, National Banking Association.
“The Bank of Charleston, National Banking Association, makes the following proposition to the heirs at law of Ann M. Felder for the settlement of the above entitled case:
“ist. Let bank withdraw its appeal and take judgment in foreclosure at this term of Court and order of sale for sales-day in November.
“2d. That heirs at law consent for judgment of foreclosure in favor of the Bank of Charleston, National Banking Association, and the order of sale.
“3d. That after the sale of the Martin or Salley place at foreclosure sale, then the difference between $8,000 and the mortgage debt is to be turned into the general fund and the pro rata part of the balance of the judgment in foreclosure is to be turned over to the said heirs at la*w of Ann M. Felder; that -the heirs at law are to get the pro rata portion which the Bank of Charleston, National Banking Association, would have received on the balance of the judgment in foreclosure in excess of the valuation fixed therein ($8,000) ; that if -the Martin or Salley place sells for more or less than the sum of $8,000, the intent of this proposition is that the heirs at law of Mrs. Ann. M. Felder are to have the benefit of the pro rata dividend which the estate of Col. Paul S. Felder pays on the dollar to the unsecured creditors on the difference between $8,000 and the full -mortgage debt due this bank just as if said place sold for $8,000.
“4th. That the heirs at law shall have the rent and profits of the Martin or Salley place up to and including the year of 1899.
“5th. That no part of the judgment of the Bank of Charleston, National Banking Association, obtained in this and other oases on notes other than that secured by the mortgage of the Martin or Salley place, is to be turned over to the -heirs at law of Ann M. Felder.”
This proposition was accepted and the agreement signed by the parties. The land was sold in November, 1899, and the bank became the purchaser for $9,000, which was paid over to the bank or its attorney on its mortgage debt, leaving a balance -on said debt at the time of the distribution among the creditors of said estate, amounting to $2,618.54. Thereafter, on the 21st December, 1899, the Felder, heirs received from the bank, “on account under the agreement,” $344.33, being 13 1-15 per cent, on $2,618.54, the pro rata of dividends- paid to the unsecured creditors of Paul S. Felder. The contest is in reference to the $1,000 received by the bank out of the proceeds of sale in excess of $8,000. This $1,000 is claimed by the Felder heirs under the agreement, which is resisted by the bank. The Circuit Court decreed for the Felder heirs for the whole sum claimed, with interest from the day of sale, holding that the agreement operated as a transfer or assignment of all the interest of the bank in the judgment after credit with $8,000. The question before us is substantially covered and presented by the first exception as follows: “1st. Because his Honor erred in finding as a fact -that It was the intention of both parties that the heirs at law of Ann M. Felder should take all ofthe judgment debt -over $8,000, instead of finding that they were to take and did receive their pro rata dividends on -the judgment in excess of $8,000 in the general distribution of the assets among the unsecured creditors.”
The difficulty lies in the proper construction of the third paragraph of -the agreement. It is the Court’s province not to make a new contract for the parties, but to declare the meaning of the contract which the parties have made. In doing so, the Court should endeavor if possible to harmonize all parts of the agreement and give effect to the whole, rather than to utterly ignore some parts of the agreement. The contract was drawn by, or under the supervision of, the attorneys of the parties. If they found difficulty in clearly and briefly stating their meaning, it was no doubt because the scheme -of settlement was unusual and involved some complexity of plan. It will scarcely admit -of doubt that if the parties merely intended to -provide for an assignment of the judgment to the Felder -heirs after -crediting it with $8,000 of the proceeds of sale, they would have said so in so many words, in which event the right of the Felder heirs to the surplus of the sale over $8,000 and the right to receive a t>ro rata from the Felder estate would all follow as legal incidents, which the parties by their attorneys knew as well as anybody. The parties seem careful to avoid expressing so simple a thing as an assignment of the judgment, after applying thereto $8,000 of the proceeds of sale. It is manifest from the language used that all that was intended to be “turned over” to the Felder heirs was a pro rata part of some general fund. The first clause of the third paragraph is : “That after the sale of the Martin or Salley place at foreclosure sale, then the difference between $8,000 and the mortgage debt is to be turned into the general fund, and the pro rata of the balance of the judgment in foreclosure is to be turned over to the said heirs at law of Ann M. Felder.” In this clause the parties clearly intended that after the sale something should be turned into, or, as between the parties treated, as turned into the general fund of the estate of Paul S.-Felder. What was to be turned into such fund? The difference between $8,000 and the mortgage debt. What does that mean? Does it mean that $3,618.54, the difference between $8,000 and the mortgage debt of $11,618.54, or does it mean the sum realized on the mortgage debt from the sale in excess of $8,000, which as appears was $1,000? We construe it as meaning that the excess over $8,000, realized at the sale, should be treated by -the panties as a part of the general fund as to which the Felder heirs were to have the right to pro rate, since it ist manifest that the parties intended that the bank should receive $8,000 from the proceeds of sale, if that much was realized, upon the mortgage debt as a lien. It could not mean that the balance of the judgment debt remaining after the sale should be turned into the general fund, since the parties must have contemplated the turning of an asset into the general fund and not a mere claim against such fund. Nor is It reasonable to construe the language as merely meaning that the claim for the balance due after the sale should have the right to receive pro rata distribution from the general fund, as that would be a wholly useless provision, such right being inevitable under the law and well known to the parties. We think, therefore, that the excess over $8,000 received from the sale was not to go to the bank under its mortgage lien, as that by the agreement was limited to $8,600; nor was it to go1 to the Felder heirs as a whole, for in every clause of the third paragraph of the agreement, the Felder heirs were only to receive a pro rata of the general fund; but we think the excess was intended to be treated as if a part of such general fund for pro rating. It will be noted here that we are considering only the rights of the bank and the Felder heirs, and are not dealing with the rights of other creditors, who are not concerned in this controversy.
It appears that the bank, outside of the mortgage debt, was an unsecured creditor of the Felder estate to the amount of $23,745. This will serve to explain why the parties fell upon their scheme of pro rating, why the bank was so particular in the fifth paragraph of the agreement to reserve all its rights as general creditors to participate in the general fund, and why the bank should prefer to take charge of the $1,000 in question, leaving it to the Felder heirs to assert their legal rights under the agreement. If the after conduct of the parties is to aid in showing what they meant by the contract, the receipt of the $1,000 by the bank is more consistent with an agreement to pro rate it with the Felder heirs than the permission by the Felder heirs for the bank to receive it is consistent with the view that it belonged to the Felder heirs by assignment. If the Felder heirs were assignees of the $1,000, why did not they — or their vigilant attorney — take steps to receive it from the disbursing officer ?
Having thus determined what was to be pro rated, the amount that should go to the Felder heirs of the $1,000 is easily ascertained from the agreement, which provides, in the second clause of the third paragraph, “that the heirs at law are to get the pro rata portion which the Bank of Charleston, N. B. A., would have received on the balance of the judgment in foreclosure in excess of the valuation fixed herein, $8,000, whether the property sold for $8,000, or whether it sold for more than $8,000, and the excess is turned into or treated as a part of the general fund, or whether it sold for less than $8,000, in which last case the bank would be pro rated as to the difference between the price less and the $8,000.” This is made clear by the third clause, which provides, “that if the Martin or Salley place sells for more or less than the sum of $8,000, -the intent of this proposition is that the heirs at law of Mrs. Ann M. Felder are to have the benefit of the pro rata dividends which the estate of Col. Paul S. Felder pays on the dollar to the unsecured creditors on the difference between $8,000 and the full mortgage debt due this bank just as if said place sold for $8,000.” It appears that the pro rata of dividends which the estate paid to unsecured creditors was 13 1-15 per cent. As the Felder heirs were entitled to receive from the bank an amount equal to 13 1-15 per cent, of $3,816.54, and have only received that per cent, on $2,816.54, they are still entitled to receive that per cent, of the $1,000 in the hands of the bank, which for this purpose should be treated as funds subject to be pro rated under the agreement. Thus ■the amount due the Felder heirs, respondents, is $130.66, with interest from, say, the 21st day of December, 1899, when the other dividends were paid.
This conclusion renders it unnecessary to consider the remaining exceptions.
The judgment of the Circuit Court is modified, so that the judgment shall stand for only the sum of $130.66, with interest from December 21, 1899.