12 S.C. 144 | S.C. | 1879
The opinion of the court was delivered by
To sustain the Circuit decree in this case, it is necessary that this court should be satisfied that a partition of •the real estate of the late Mrs. Mary E. Brown has been made, •under the order of a court of competent jurisdiction, pursuant to the provisions of the act of 1791. Until this is established the statutory lien set up by the plaintiff cannot arise. Such a lien is .a creature of the statute, and unless it is made to appear that partition has been made under that statute, such lien can have >no existence. For, while it may be very true that th’e parties themselves may make. a valid partition, by the terms of which ■one of them may be required to pay to another a sum of money for equality of partition, yet, certainly, such an agreement can-mot give rise to the statutory lien sought to be set up in this case, •■but the amount thus agreed to be paid would be like any other ■debt arising from a promise to pay, which may or may not be secured by a lien, according as the parties may agree.
As we do not agree with the Circuit judge in the conclusion which he has reached, inasmuch as we do not think there was ■any legal evidence that a partition was, ever made by the Court of Equity, this is the only matter necessary to be considered, for, ■until a partition by the order of a court has been established, the other questions discussed cannot properly arise. It is not pretended that there was any direct evidence whatever of any judgment or final order for the partition of the land in question, either by record or by parol. No such record was produced, and no witness testified that any such record had ever existed. The •court below, however, inferred the existence of such a judgment from fragments of a record which were introduced, supplemented by parol testimony. The record, evidence introduced is thus •stated by the Circuit judge: “ The original bill filed by M. W. Brown and B. N. Brown against A. J. Bugg and wife and others, in which are described the lands of Mary E. Brown, with a prayer for a partition of the same among her heirs-at-law, is before the court. The original bill was filed on the 29th of August, 1860. The original sub. ad res., with the return of the sheriff and a copy of the will of S. S. Anderson, is on exhibit and produced with the will. A written consent of three of the
Now, while the cases of Smith v. Smith, Rice 232, and McQueen v. Fletcher, 4 Rich. Eq. 152, upon which the Circuit judge bases his conclusion, may be sufficient to establish the proposition that where the record of the judgment in partition or final order confirming the return of the commissioners is introduced, that it shall be sufficient to warrant the conclusion that all the previous proceedings were regular, and that the missing portions of the record may be supplied by parol evidence, yet those cases do not support the conclusion reached by the court below, for, in both of those cases, the filial order confirming the return of the commissioners was introduced, showing that the court had rendered judgment, while in this case no such evidence has been introduced. But when we are asked to infer the existence of a judgment or final order, of which there is no evidence, either by record or by parol, because of the fact that certain portions of a record, looking to such judgment or final order, are introduced, even though supplemented by the parol evidence offered in this case, the proposition assumes a,very different shape and cannot command our assent. It may admit of grave doubt whether such an inference would be warranted, even if the portions of the record which were introduced, supplemented by the parol evidence introduced in this case, showed that all the previous proceedings were entirely regular up to the time when the commissioner in equity granted the order for the writ of partition, the last piece of record evidence which was introduced, and that all persons interested in the subject matter of the suit were properly made parties. But in this case the portions of the record which were introduced do not show that the previous proceedings were regular; or that the necessary parties were properly brought before the court. The sheriff’s return shows that only one of the defendants was properly served with process, although it does appear that another, who, however, was only a party in right of his wife, did acknowledge service. The acceptance of service, signed by A. J. Rugg, “ for self and wife,” was, certainly, not sufficient to make her a party, especially if she was, as we are bound to presume she was, a minor at the time, for she is named
From the view which we have taken of this case the question raised in appellant’s argument as to whether a statutory lien can arise where land is assigned to one or more of the parties who are required to pay something to the others to equalize the partition, or whether such lien can only be created where the land is' ordered to be sold for the purpose of making partition, does not properly arise, and has not, therefore, been considered. The plaintiff, in his complaint, demands judgment in the alternative, first, for a foreclosure of the' statutory lien, but “ if the court is not satisfied that a legal partition was made of the lands of Mary E. Brown, then that the interest1 of the plaintiff in said lands, of which Coney is in possession, both as heir-at-law of his mother and as assignee of his father, be' set apart to him in severalty,” &c.; but as that part of the complaint could not well be considered or adjudicated by the court below, under the view taken by that court, and, as it may be worthy of consideration whether all the parties necessary to such adjudication are now before the
It is therefore ordered that the judgment of the Circuit Court be set aside, and that the case be remanded to that court for further proceedings, with leave to the plaintiff to apply to the Circuit Court for such amendments as may be deemed necessary to enable him properly to litigate any rights which he may claim to have to a partition and account for rents and profits.
Judgment reversed.