40 S.C. 204 | S.C. | 1893
The opinion of the court was delivered by
Such proceedings were had in the action of appellants against the respondents in the Court of Common Pleas, on its equity side, for Fairfield County, that his honor, Judge Norton, filed his final decree therein on the 2d January, 1893, wherein he directed the respondent, P. H. Jennings, as executor of the last will of Nathan C. Robertson, deceased, to distribute the balance of his testator’s estate in his hands, to wit: the sum of $783.84, as follows: 1st. To the costs and expenses of administration, including a reasonable fee to his attorney, if he have one. 2d. To the plaintiffs’ costs and expenses of this suit, not including counsel fee to his attorneys, nor including the proving of his claim before the referee. 3d. To the j udgment now held by Mrs. Julia R. Robertson and her costs and expenses in this suit, including proof of her claim before the referee. 5th. Pro rata to the specialty debts of plaintiffs, of Geo. H. McMaster, and of the estate of Rion, and their respective costs of suit, including proof of their claims. 5th. To the account of W. E. Roche, and his costs of suit and proof of claims.
From this decree the plaintiffs below have appealed as follows: The plaintiffs except, &c.: 1. Because the said decree deprives the claim of the plaintiffs of its proper rank in the administration of the assets of the estate of Nathan 0. Robertson, deceased. 2. Because his honor should have held that the claim of the plaintiffs was superior in rank, and preferred to all other claims proved in this action against the estate of Nathan C. Robertson, deceased, and was entitled to be first paid. 3. Because his honor should have held that, in so far as the funds in the hands of the executor represented an exemption which was liable only for the payment of the plaiutiffs’ claim, that the same should be applied exclusively thereto. 4. Because his honor erred in holding that the demand of Mrs. Julia Robertson was a judgment at the death of the testator, N. 0. Robertson, and superior in rank to the claim of the plaintiffs. 5. Because his honor should have held that the claim of Mrs. Julia Robertson was not at the time of testator’s death a judgment in contemplation of the act of the General Assembly providing for the order of
As it will be seen, the contention here is between creditors of the estate of N. 0. Robertson, deceased, and to correctly apprehend the status of the claims of each one of said creditors, we will reproduce so much of the report of the referee, Mr. Oathcart, as relates to these claims: 1. The claim presented by Mrs. Mary C. Rion, as executrix, &c., of James EL Rion, deceased. This is a sealed note executed to James H. Rion, dated 19th February, 1868, due on the 19th February, 1869, and signed by Martha P. Robertson. On the back ofsaid note appears the following endorsement, to wit: ‘ ‘Paid on the within note one hundred dollars, 24th December, 1888. The above amount was paid by me as heir at law. (Signed) N. C. Robertson.” On this note there was due on the 24th September, 1892, $430.36. 2. W. G. Roche, account against N. C. Robertson for $10.50. 3. G. El. McMaster, as the survivor of the firm of Ketchin & McMaster, sealed note as a claim against N. C. Robertson. Note dated July 5th, 1869, and signed by M. P. Robertson and N. C. Robertson. This note had sundry credits endorsed on it. Amount due on said note up to 24th September, 1892, $106.52. 4. Mrs. Julia R. Robertson’s claim. Judgment against N. C. Robertson, she being now the holder of, and legal owner of, the judgment in the case of Henry L. Elliott, John P. Matthews, jr., and Joseph H. Gum
It seems that the testator, N. C. Bobertson, was twice married. His first wife, Martha P. Bobertson, died after the 13th January, 1872, but the exact date is not furnished by the case. He then married Julia W. Bobertson, who survives him, he having died on 13th April, 1890. By his first wife, Martha P. Bobertson, at her death, as her sole heir, he inherited 800 acres of land, which was sold to pay her debt, under mortgage, and realized a sufficiency for that purpose, leaving over $1,000 to be applied to his debts, besides 100 acres sold by him for $325. These facts are important in connection with the claim of Mrs. Bion, as executrix. It must be borne in mind, however, that there is no evidence here that the amount now in court, is in any manner derived from the estate of the first wife, Mrs. Martha P. Bobertson. Just here, it may be stated, that the evidence does not disclose any application for an exemption under the law, by Mrs. Julia W. Bobertson, out of the personal property of her deceased husband. An examination of the grounds of appeal show to us that the appellants antagonize Mrs. Bion’s right to appear as a claimant here at all, and that they insist that not only is the claim of Mrs. Julia W. Bobertson no judgment, but also that, if that fact were admitted, the proceeds of the sale of personal property in the hands of the executor could not be applied to such judgment, because the appellants alone hold a claim that was .anterior to 1868, when a homestead in lands and an exemption of personal property was provided for the head of a family in this State, and which, under the decisions of our courts, could defeat such exemption.
The Circuit Judge referred this matter to sections 1952-3 of the General Statutes of this State. The appellant lays stress upon section 131 of our Code, as well as the case of Sepaugh v. Smith, 35 S. C., 613. The section of the Oode referred to is as follows: “No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this title [time of commencing civil actions] unless the same be contained in some writing signed by the party to be charged thereby; hut payment of any part of principal or interest is equivalent to a promise in writing. ” No advantage can accrue to this appellant by citing this authority. The law fixed the liability upon Eobertson, if he inherited the lands of Mrs. Martha P. Eobertson, to pay her debts, if the inherited property was sufficient in amount to do so. ' In his
It is thus manifest: 1. That the debt of plaintiffs in that action was ascertained on a day certain, for a certain amount due by N. 0. Eobertson, and that Eobertson acquiesced therein. 2. That at the same time, the mortgages were adjudged to be foreclosed and a sale ordered to be made, with directions for an application of the proceeds of sale to the certain debt of plaintiffs, as fixed in the decree. 3. That this original order for sale was renewed in 1888. 4. That N. C. Eobertson, the defendant in that action, died in 1890. 5. That the mortgaged premises were not sold in his lifetime, but were sold in January, 1891. 6. That a balance of $450.81 was found and reported due, after the death of Eobertson, to the plaintiffs. The appellant now contends that as to this balance of $450.81, it is not entitled to rank as a judgment, and assails the decree of the Circuit Judge as erroneous when he adjudged to the contrary. x*ks the appellant states this proposition: “When a simple decree of foreclosure is rendered against a debtor in his lifetime, but no sale is made thereunder and no deficiency ascertained to exist until after his death, does a claim against his estate for a deficiency reported after his death rank as a judgment, or does it take the rank of the instrument upon which such decree of foreclosure is rendered!” He cites in support of his position Ex parte Farrars, 13 S. C., 254; Hull v. Young, 29 Id., 65; 5 Am. & Eng. Enc. Law, 240; Schoul. Ex’rs & Adm’rs, §426; Wms. Ex’rs (5th Am. edit.), 905; Redf. Wills, 256; Warren v. Raymond, 12 S. C., 9; Freer v. Tapper, 21 Id., 75; Jones Mort., § 1709.
We may as well just now announce our conclusion in this
Let us examine some of the authorities relied upon, to see wherein they differ from our conclusions, if there be any such difference. First. The case of Ex parte Farrars, supra, 13 S. C., 254. Here, a bill in equity had been filed by Farrar Brothers against Louis Dial and others. A report thereon, made by the commissioner in equity, to which exceptions had been filed by both sides, came on to be heard by Chancellor Carroll, who, in his decree, sustained some of the exceptions and overruled the others, and ordered the commissioner to reform his report. An appeal from the decree of the chancellor was taken to the Supreme Court before the commissioner had acted upon the reformation of his report. This appeal was dismissed. Dial having died, his administratrix was substituted on Circuit in his stead as defendant, aud a money decree taken against such administratrix. Meantime an action had been begun in the Court of Common Pleas, on its equity side, by a certain creditor of the estate of Louis Dial, deceased, against his administratrix, heirs at law, and others, creditors, to marshal his estate, sell land to pay debts, call in creditors, &c., and a final decree had, wherein the claim of Farrar Brothers was adjudged a simple contract debt. A petition in this last case was presented by Farrar Brothers, claiming that their claim as presented was without their authority, and, also, that they were entitled to rank in the distribution of Louis Dial’s estate as judgment creditors. The Circuit Judge sustained the views of Farrar Brothers, but the Supreme Court, in a carefully prepared decision, showed conclusively that the claim of Farrar Brothers, under the decree of Chancellor Carroll made in 1868, was not a final judgment. It is true, in speaking of the character of that claim, the Supreme Court did recognize and enforce the doctrine laid down in Haskell v. Raoul, 1 McCord Ch., 32, that “a decretal order upon which an execution may be taken out is a final decree,” but this test was expressly limited to money decrees, for the language used by the court just before a reference to Has-
Apply these principles to the case at bar, and we can see no matter of difficulty in reconciling the two. In Fx parte Farrars, supra, they were applying for a money decree and nothing else, while in the action wherein a judgment is attempted to be set up by Mrs. Julia W. Robertson, the plaintiffs in that action sought not only a money decree against the defendant therein, but also a foreclosure of a mortgage of land given by him to secure the payment of that very indebtedness for which a money decree was sought. To avoid a multiplicity of suits is the end of the Court of Equity. To hold that there may be a final judgment in the foreclosure of a mortgage, and then that a suit to enforce the payment of the indebtedness left unpaid is necessary, would certainly place the powers of a Court of Equity in a dwarfed condition. But it is suggested that such is not.a legitimate conclusion, because here the Court of Equity by its judgment allowed the plaintiffs after a sale made of the mortgaged property to come in and obtain, in this very case, a final money decree for the balance remaining after the proceeds of sale of the mortgaged land had been applied to the indebtedness. This position involves the strange doctrine that there can be two final judgments in the same cause between the same parties, and it is obliged to be admitted by the parties opposing the views entertained by this court, that the right to the judgment in foreclosure and the right to a money decree for the balance, must arise from the allegations of the pleadings, and be within the scope of the relief to which the plaintiffs were entitled under their pleadings. For otherwise the court would violate the fundamental principles of section 297 of the Code: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” So, therefore, the pleadings to sustain the
We will next examine Hull v. Young, supra, 29 S. C., 65. In the case cited, the defendant, S. O. Young, had made a note for $300 to the assignors of plaintiffs, and secured its payment by a mortgage upon three several parcels of land, the Jay place, the Leard place, and the Findley place. All these parcels of land were, subsequently, sold under judgments junior to the mortgage. One, the Leard place, was purchased by the plaintiffs, one by an attorney for certain creditors, and the Findley place by Mrs. Bachel Young. After such sales, action to foreclose plaintiff’s mortgage on the Findley place alone was brought, and to this action S. O. Young and Mrs. Bachel Young were made parties, defendants. They set up the defence that the Findley place in the hands of Mrs. Young was only liable for its proportion of the mortgage debt. The decree on Circuit sustained this position, and fixed the sum of $80 as the proportion of the debt of $300, and interest thereon, for which the Findley place was liable; but the decree went further, and adjudged that both S. O. Young and Mrs. Bachel Young were liable to pay this sum to plaintiffs, if lands, when sold, failed to do so. The decree also adjudged that plaintiffs have judgment against S. O. Young for the sum of $213.19, with interest and costs. Both S. O. Young and Mrs. Bachel Young appealed. This court held the Circuit decree erroneous as to Mrs. Young, because she was not liable to pay any debt to plaintiffs, although the land in her possession was liable to sale to pay the $80, fixed as its proportionate part of the debt of defendant, S. O. Young, to plaintiffs, and the Circuit decree was so modified. This court held, further, that the Circuit
Without going further, we might say, that there is a marked distinction to be observed in the case we are now reviewing and that presented by Mrs. Julia W. Bobertson. In the former, the party who was entitled to speak, appealed from the Circuit decree, and had it reversed. In the latter, N. C. Bobertson acquiesced in the decree on Circuit, allowing it to become a final decree. We are at a loss to see upon what ground these appellants can now, in effect, appeal from such Circuit decree, final against N. C. Bobertson. It is true, if they could, they might impeach it for fraud, but they are powerless to affect it otherwise.
It may not be out of the way, however, to observe that we are not disposed to question the judgment of Hull v. Young, except in this respect, that a provision should have been added, that when a party plaintiff chooses to unite a legal and equitable cause of action in one suit, the court is not at liberty to disregard such a union, but must in its decree provide for both, so that harmony may be preserved, and that such a decree is, under our Code, if a final determation of the rights of the parties to the action, a judgment.
Freer v. Tapper, supra, 21 S. C., 75, is the next case cited. This action was a contest wherein the validity of Freer’s title to a small parcel of land was raised. It seems that Freer obtained a judgment against one Schultz on note and mortgage. After the mortgage was foreclosed and sale made thereof, and
Mr. Justice McGowan, who delivered the opinion of the court, said, amongst other things: “The complaint in the case of Freer vs. Schultz is not in the case, and, therefore, we do not know its precise scope and purpose ; but in the absence of proof to the contrary, we must assume that the action was not for what is called a ‘strict foreclosure’' — for the sale of the land and no more; but that it was in the usual form, and prayed not only for the sale of the land, but also judgment for the deficiency of the debt, if there should be any. Taking this view and reading the decree of foreclosure carefully, it will be found that it adjudged three things: 1. That the sum of $994.75, besides the costs, were due by Schultz to Freer on the mortgage debt. 2. That the sheriff should sell the mortgaged premises at a future day, and pay the plaintiff the amount so reported due, viz: $994.75, or so much thereof as the purchase money of the mortgaged premises will pay of the same. 3. That if the proceeds of such sale be insufficient to pay the amount, &c., the sheriff specify the amount of such deficiency in his report of sale, and that the defendant, Frederick C. Schultz, be required by execution to pay the same. It seems to us that, taking the whole decree together, it did authorize an execution to issue for whatever might be the deficiency, if any. It is true, that the precise amount for which it should issue was not named in the decree, for the reason that at the time it was rendered it could not be foreseen what the land would realize, but it directed the sheriff to make the sale and apply the proceeds, and that the execution should issue for the deficiency, * * * but there was a decree for the whole mortgage debt (subject to be reduced
Let us examine 5 Am. & Eng. Enc. Law, 240. The language used is: “A decree that does not authorize the issuing of an execution for its enforcement, is not entitled to rank as a final judgment in the administration of the estate.” This language or view is perfectly consistent with the ideas we have advanced hitherto. Of course, a decree to be pronounced a money decree must include within it the right to enforce it by an execution, and so the very,decree we have been considering does include the power. It is true, the execution is only to be issued for such balance as maybe due when the money decree shall have credited upon it the land covered by the mortgage. In opposition to this view, it has been suggested that a second application to a court for its judgment is necessary, in order to know what balance may still remain after the mortgaged premises may be sold. We are unable to perceive any substantial difficulty here. A motion addressed to a court in furtherance of the enforcement of its judgment is often resorted to, and because the adjudication of such motion by a court becomes necessary, we do not call such determination a final judgment. No more so, this application to a court for the right to issue an execution for the balance. We must always remember that the main object of a Code of Procedure is to abolish the distinctions which had been allowed to impede the administration of our .courts, and to produce an uniformity and simplicity in the application of remedies in courts of j ustice.
In this work we are now considering, reference is made, as its authority for the doctrine we have just quoted from it, to the case of Ex parte Farrars, supra, 13 S. C., 254, and also to Williams on Executors (5th Am. edit.), 905. The quotation from this latter work relied upon is: “If a decree in equity be not conclusive of the matters in question, as if it be merely to account, and do not ascertain the sum to be paid (italics ours), it is
But it is made my duty, as the organ of this court, to state that the majority of the court decline to assent to my views herein expressed on the fourth and fifth grounds of appeal herein ; they adhere to the views recently expressed by them in the case of Parr v. Lindler, ante, 193, recently filed, to which case I could not agree. The exceptions four and five are sustained, but I dissent from this conclusion.
This is plaintiff’s claim.