2 S.C. 52 | S.C. | 1870
The opinion of the Court was delivered by
tGn proceedings in the Court of Equity for partition of the estate of Willis Gregory, who died intestate, the proportion allotted to Mary Ann, one of his daughters, who had married Alfred R. Moore, exceeded the share to which she was entitled, by the sum of $507,372', and this amount her husband and the said Mary Ann were adjudged to pay to Joseph Terrell and wife, also distributees, for equality of partition.
The estate of the said intestate included both real and personal .property, a portion of each having been allotted to Mrs. Moore, including two tracts of land, the one consisting of 108¿- acres and the other of 339 acres.
During the coverture, Moore, the husband, paid and satisfied the .amount due Terrell and wife, and, after the death of Mrs. Moore, sold and conveyed, with the usual covenants, the smaller tract so on partition allotted to her, to the plaintiff Amos Cooke, in fee, who, having .purchased also the shares of the adult children in the same, filed his bill for partition of her real estate, claiming, also, that the payment by Moore to Terrell and wife of the sum so due them, for equality of partition, created a lien on the land in favor of Moore, to which he, the plaintiff, as his grantee, should be subrogated, and to which he could resort by reason of the breach of warranty of his deed. The Court below sustained the claim, and it is now sought here to reverse the decree in that regard.
The Act of 1791, 5 Stat., 163, which directs that where, on partition, property is allotted to one of the distributees, and he is required to pay some other of them a certain sum for equality, does .not create a mortgage in the usual sense in which that term is un
Oil the payment directed to be made to Terrell and wife by Moore, the title as to the personal property vested in Moore, and as to the real, in himself and wife, during the coverture, and on its termination, in her.
'Did Moore, by such payment, acquire any right against his wife, and if so, how could he have enforced it? and if he could not, how can the plaintiff aver an equity which would entitle him to be sub-rogated to the rights of Terrell and wife ?
The doctrine which exists in regard to sureties who pay a creditor holding collaterals for the protection of the same debt has no application here, for Moore did not stand in that relation to his wife. The decree of the Court, which Moore, the husband, paid, was a judgment against him, as well as against her, and when he satisfied it, the title to the land vested, and not till then;
It was, in' fact, clearing an incumbrance on the land over which he had dominion during the marriage, and the act enured as well to his own benefit as to that of his wife.
Assume, however, that it was but the debt of his wife, cau his voluntary payment of it, during coverture, create a charge against her ? C mid he, as against her, by reason of it, claim to be subrogated to whatever rights Terrell and wife might have had against the land as a security for the amount due them ? and if he could have acquired no such right against his wife, how can Cooke, his. grantee, through him, acquire any ?
There is, however, another view conclusive against the plaintiff who seeks in this way an idemnity for the breach of warranty on the part of Moore, instead of pursuing his estate exclusively.
Personal property, as well as the two tracts of land, were assigned to Mrs. Moore, and the $507.37J was the excess of her own share, which she and her husband were directed to pay to Terrell and wife. Until the payment of the whole amount the title to no pait of the assigned share vested. On its payment, however, not only the land, but the personal estate, was free from any claim, in the shape of lien or otherwise, and the title to the latter then vested absolutely in him.
How much of the amount was in excess of the share of the real estate, and how much in excess of the personal, does not appear by the brief; and yet it is asked to treat the payment as if in exoneration only of the land, when' the amount was the representative of
The appeal is only on the part of the minor children of Mrs-Moore, and the judgment of this Court will be regarded alone in reference to their rights as adjudicated by it.
In relation to the claim on their behalf of the rents and profits to be paid them out of the share of the said Moore, before its application under the decree to the payment of the plaintiff, there is not sufficient of the facts before the Court to justify a judgment. If an inquiry into that matter is desired on behalf of the appellants, it is ordered that they have leave to apply to the Circuit Court for such direction as may bring up the question for its adjudication.
It is further ordered and adjudged that so much of the decrees of the Chancellor and the Circuit Judge as subject to the payment of •the claim preferred by the bill for the said breach of warranty by the defendant, Alfred R. Moore, the shares of the appellants, the minor children of the said Mrs. Moore, in her estate sought by the bill to be partitioned, be set aside, and that the cause be remanded to the Circuit Court with directions for such orders as may fully carry out the judgment of this Court now pronounced.
