Bacot v. Lowndes

| S.C. | Mar 15, 1886

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The main question in this appeal is whether the action below was brought “for the recovery of real property, or of an estate or interest therein, or for the determination of certain rights and interests therein." If so, it is conceded that the appeal must be sustained, as the action is brought in Charleston County, when the real estate in question is lo.cated in Colleton County, such action not being permitted under the code except in the county where the land is located.

To see clearly the application of this provision of the code to the case, a short statement of the facts, as alleged in the complaint, must be stated. It appears that the late William Henry Lowndes was indebted in his life time to Charles E. Miller in a large amount, evidenced by bond dated in 1844, which was secured by mortgage on certain real estate situate in Colleton County; that Miller assigned this bond and mortgage to the late Daniel Huger, who died in 1858, leaving a will, of which the plaintiff is executor; that William Henry Lowndes, who died in 1865, left a will, in which his wife, the defendant, Mary E. Lowndes, was appointed executrix (this will, however, was not set up and admitted to probate until 1883); that the plaintiff, as executor of Daniel Huger, deceased, in 1876, filed his complaint against Mary E. Lowndes, Harriet Minott and husband, John C. Minott and Mary A. Elliott and husband, Henry D. Elliott, and E. M. Speights, lessee, the former being heirs at law and distributees of the said W. H. Lowndes, for the foreclosure of said mortgage, which was accomplished by sale of the property, no judgment being asked for the deficiency on the bond. In that proceeding, the defendants, heirs at law, prayed that the balance due on said bond, after application of the proceeds of the land, be accurately ascertained, which was done, the amount being $6,002.22, November-, 1876. It was provided in the decree for foreclosure, and adjudged, that the said defendants “should be discharged from any liability for or by reason of the said bond of the said W. H. Lowndes, deceased, set forth in the pleadings.”

The complaint further alleged, that at the time of the said foreclosure action, and at the time of the decree therein, he was informed by the defendants (which information, it is alleged, subsequent events have shown to have been mistaken), that the estate of W. H. Lowndes was insolvent, and that there was no other property belonging to said estate; that on that account no administration was applied for, and also the portion of the decree discharging the defendants was incorporated; that plaintiff', however, since said decree had learned that W. H. Lowndes owned at his death lands located in Colleton and Greenville Counties, when the plaintiff notified the defendant, Mary E. Lowndes, that he would claim the balance due on his bond, and would claim to administer if she did not; that, thereupon, Mrs. Lowndes produced the will of her deceased husband and qualified as executrix; that soon thereafter, to wit, in 1884, the plaintiff brought action on said bond against the executrix; that since said action was commenced, the defendant, Mary E. Lowndes, executrix, had allowed judgment to go against her by default in favor of the defendant, C. C. Pinckney, jr., trustee, in the sum of $6,000; that before said action was begun, to wit, in 1883, the defendants conveyed and aliened, or attempted to do so, four several tracts of land, situate, respectively, in Greenville and Colleton Counties, which, in the will of the said W. H. Lowndes, had been devised to them, of which they had been in the exclusive possession since the death of the said W. H. Lowndes, the conveyance being in trust to pay the said C. O. Pinckney certain debts due to him, and then to hold for the defendants, and afterwai'ds certain mortgages were executed to the said Pinckney of the interests of the defendants, and that under these deeds, C. C. Pinckney, jr., trustee, had been in possession, removing phosphate rock, digging, &c. And upon these alleged facts, the plaintiff demanded judgment, that creditors be called in; that O. O. Pinckney be enjoined from enforcing his judgment; that the conveyances, mortgages, &c., to him be set aside; that all parties be enjoined from digging phosphate rock, &c.; and that the real estate mentioned be sold, the proceeds to be applied to the debts of the deceased, &c.

To this complaint, the defendants demurred “on the ground that the action was for the recovery of real property, or of an estate or interest therein, and for the determination of certain rights and interests in said property, and for injuries to real property ; and it appears upon the face of the complaint, that this court has no jurisdiction of the subject of the action, or any part thereof.”

The demurrer was overruled by his honor, Judge Fraser, and the defendants now renew said demurrer by appeal.

The Circuit Judge, in overruling the demurrer, relied upon the case of Jordan v. Moses (10 S. C., 431). That case, however, differs from this in the fact, that there the title to the real estate sought to be sold was admitted to be in the deceased at his death, and no change had taken place since his death. That case was an ordinary case to marshal assets, and to sell real estate of the deceased to pay his debts. The real estate in question was located, it' is true, in a different county from that in which the action was brought; but the action was not intended to recover this real estate or any interest therein, or to determine any right or interest therein, of any party. It was understood to belong to the deceased, and the purpose was to sell it and apply the proceeds to the debts. The court, therefore, very properly held that the action in no aspect fell within the provisions of the section of the code referred to.

But, here the action, while its purpose, as expressed in the complaint, is to reach real estate alleged to have belonged to the decedent, yet facts are stated in said complaint which show that in order to accomplish this purpose, the lights and interests of other parties must be determined therein, and one of the main prayers is that certain deeds and papers under which C. C. Pinckney, jr., claims an interest, and by which he is in possession, digging and mining phosphate rock, shall be vacated and set aside. Besides, the abtion is nothing more than an action to subject real estate, descended or devised to heirs at law or devisees, to the payment of the debts of the ancestor, and before this can be done, the interests and rights of said heirs at law and devisees, in connection with their transfers to C. C. Pinckney, jr., must be determined and adjudicated. These áre issues raised in the complaint, and they are questions which determine the jurisdiction of the court, and it will not do to hold in advance of the trial that these questions will be decided against the defendants, and, therefore, they have no right to demand that the action shall be brought in Colleton County, for the reason that they have the right, under the imperative terms of the code (“must be tried”), to have those questions tried in the county where the land lies, and no adjudication of them elsewhere is competent without their consent.

We think, therefore, that his honor was in error in overruling the demurrer. Several other questions have been discussed before us, for instance, whether the deeds and other papers to Pinckney should be vacated, and whether, if not, they constitute such an alienation by the heirs as would put the land beyond the reach of the plaintiff, and, also, whether the former decree had .not released the defendants; but these questions did not properly arise under the demurrer, and they are not now ripe for adjudication.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the complaint be dismissed.