Culler v. Crim

52 S.C. 574 | S.C. | 1898

The opinion of the Court was delivered by

Mr. Justice Gary.

In 1881, M. J. Rucker recovered a judgment against David B. Culler, and two other parties, upon a note dated in 1878. Execution was issued upon said judgment, whereupon Culler claimed homestead. Culler remained in possession of the land until his death in 1893. H. A. Spann was appointed administrator of his estate, and under proceedings thereafter instituted in the probate court to sell the real estate in aid of assets to pay debts, a tract containing 133 acres, being a part of the land which had been assigned to David B. Culler as a homestead, was sold in 1896 to Henry Crim, who is now in the possession thereof. The parties served with the summons in the said proceeding are the same as the parties plaintiff and defendant here, except Henry Crim and Delia Hines. This, action is brought to set aside the sale of said land to Henry Crim and to recover possession thereof, together with damages, also for an accounting by the administrator, and for partition of the real estate of David B. Culler. The Circuit Judge decided that the sale to Crim was void by reason of the homestead exemption, and that the heirs of David B. Culler were entitled to recover possession of the land, together with damages.

Henry Crim appealed upon the following exceptions: “1. That his Honor erred in bolding that the homestead proceeding in Rucker v. Rast et al., was not open to inquiry now, when it appears that there is no order of record confirming the return of appraisers, and that defendant, Crim, had no actual notice of such confirming order, and was not a party to that cause. 2. That his Honor erred in holding that the homestead exemption was complete in David B. Culler, without the return of the appraisers having been recorded in the proper book in R. M. C. for Lexington County. 3. That his Honor erred in setting aside the sale in aid of assets by the probate court, in that having held that the homestead exemptions had terminated with the life of David B. Culler, and the time having arrived for partition, he should have held that this proceeding and sale in probate court was for partition, as well as in aid of assets. 4. That his Honor erred in setting aside the sale in aid of assets by the probate court, and ordering the deed to Crim vacated, in that having held that the exemption to David B. Culler had terminated with his life, and the time for partition among his heirs having arrived, he should have held that all the parties, who were served with summons in the proceedings in the probate court, and who neglected to answer, or claim the lands as exempt from the debt of David B. Culler, are now estopped from setting up such claim against the lauds; and he should have held that their only relief now was to have the proceeds of the probate sale of the land paid to them.”

1 2 The first and second exceptions will be considered together. - Henry Crim does not set up as a defense that he was a purchaser without notice, nor does he claim that he was a creditor of David B. Culler. But even conceding his right to object to the irregularity of the homestead proceedings, let us see if they were so irregular as to render them a nullity. By the act of 1880, 17 Stat., 513, entitled “An act to determine and perpetuate the homestead,” which was of force when the homestead was claimed, it is provided that “said appraisers shall make return of their action in the premises, under their hands and seals, to the sheriff or other officer, within thirty days after the said appraisers shall have been appointed as aforesaid, for record in the office of the clerk of said court, giving the metes and bounds as well as the value of the homestead so set off. * * * And if no complaint shall be made by' either creditor or debtor within thirty days after the return of the appraisers has been filed, the proceedings in the case shall be final.” The said act also contains the following: “That when thirty days shall have elapsed after the filing of the return of said appraisers, setting off a homestead to any debtor, according to the provisions of section 1 of this act, and no exceptions have been filed against such return, or if such return be finally heard and approved, such debtor may have such return recorded in the office of the register of mesne conveyance of the county in which the same is located; and upon such return being recorded in forty days after the proceedings have become final, the title to the homestead so set off and' assigned shall be forever discharged from all debts or said debtor then existing or thereafter contracted.” Exceptions were filed to the return of the appraisers, and they were overruled. The return of the appraisers, therefore, by the terms of the statute, became final. The provision as to recording was simply intended to give notice. The appellant does not show that he holds under a claim against which David B. Culler was not entitled to claim the homestead exemption. These exceptions are overruled.

The view which this Court takes of the fourth exception renders unnecessary a consideration of the third exception.

3 The fourth exception will next be considered. The order of the probate court to sell the land in aid of assets, was binding upon all who were made parties to that proceeding. The necessary effect of that order was to destroy the right of the parties to that proceeding to claim the homestead in the land ordered to be sold. Henry Crim purchased the land freed from the claims of all the parties to this action, except Lena Hines, who was not made a party to the proceedings in the probate court. Lena Hines still has an interest in the land.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the case be remanded, for the purpose of adjusting the rights existing between Henry Crim and Lena Hines.