12 S.C. 130 | S.C. | 1879
The opinion of the court was delivered by
The action in this case was brought to fore- • close a statutory lien on a lot of land in the town of Sumter. For a proper understanding of the questions raised by the appeal it will be necessary to make a brief statement of the facts.
In the year 1852 one Samuel Maverick, a resident of Ander
While we purpose to consider all the various questions draise
Another fatal objection to the motion was that it came too late. It does not seem to have been made until the case was called for trial, not only after issue joined, but after a demurrer to portions of one of the answers had been heard and sustained, and after all the expense incident to a preparation for trial had been incurred. As is well said in Miller v. Grice, supra, at page 37, “ such a motion should be made at as early a period as practicable, to prevent surprise and an unnecessary accumulation of costs.”
The next question is as to the right of the plaintiff to bring this action, and the necessity for making the persons interested in the money due upon the bond parties,to the action.
The objection that the plaintiff has not legal capacity to sue, or that there is a defect of parties when appearing upon the face of the complaint, as in this case, should be taken by demurrer. Code, § 167. And if not so taken, is deemed to be waived. Code, § 171. But even were the objection taken in the proper way we do not think.it could be sustained. As was said in Billings v. Williamson, 6 S. C. 122, the plaintiff is the proper person to bring the action, and Section 136 of the code shows that it was not necessary to join the parties interested in the money to be recovered on the bond.
We do not think there was any error in refusing to require that the representatives of F. J. Moses, who had died during the pendency of the action, should be made parties. He was a mere surety on the bond, and not, therefore, a necessary party in the
Nor do we think that there was any error in refusing to suspend the cause as to Henry Ryttenberg, because he had been adjudicated a bankrupt. There can be no doubt that when this action was commenced the court below had jurisdiction of the case against Henry Ryttenberg, along with the other defendants, such adjudication not having been made until May 2d, 1878, after the action was commenced and after issue joined therein. This proceeding being merely for the enforcement of a lien, so far as the bankrupt is concerned, and not for the purpose of obtaining. any personal judgment against him, cannot be affected by the proceedings in bankruptcy. Baum v. Btern, 1 S. C. 415; Bump on Bank. 292-3, (7th ed.)
The next question is, whether the bond, which is the cause of action in this case, has been paid. ' This, of course, is a question of fact, and while it would be quite sufficient for us to say that, in accordance with the established rule of this court, we will accept the conclusion of the Circuit judge where there is any evidence to sustain it, we may be permitted to add that we agree entirely with him in the conclusion which he has reached. It is contended, however, that the deed to M. Moses contains an acknowledgment that the whole amount of the purchase money was paid at the time of the sale. The deed itself is not before us, but the presumption is, as we understood from the statements made in the argument the fact to be, that the deed is in the usual form, and, after stating the amount of the consideration, adds the
The next question raised by the exceptions, which we propose to consider is, whether the lien provided for by the act of 1791,. in case land is sold for partition, attached to the lot now in question. It is contended that in order to give rise to such lien the provisions of that act must be strictly followed, which, it is-argued, was not done. First, because the proceedings for partition were instituted, not in Sumter, where the land lies, but in Anderson, and the case of Brown v. McMullen, 1 N. & McC. 252, is cited as authority to show that such proceedings must be instituted in the district where the land lies. In that case the-proceedings were instituted in Fairfield district, while all of the lands sought to be partitioned were situate in other districts, and a motion to dismiss the proceedings for want of jurisdiction was. granted. The court, in that case, after considering the argument-drawn from the provisions of the statute in relation to proceedings for dower, which was likewise urged in this case, lays down the following terms: “It is the opinion of the court that'the-writs of partition can only issue in those districts where the lands
The view contended for by the appellants would lead necessarily to the result that where a person died intestate, leaving real estate in several different counties, it would be necessary, for the purpose of partitioning his estate, to institute actions in each of such counties. Such a construction of the act, involving, as it would, unnecessary expense and likely to produce confusion, we would not be disposed to adopt, unless required so to do by the •express terms of the statute, but, on the contrary, we prefer what seems to have been the construction adopted by the distinguished Chancellor under whose order the writs of partition were issued.
Next, it is insisted that the act of 1791 only purports to give a lien where land is sold under proceedings for the partition of an intestate’s estate; so that where a sale is ordered for partition of lands held by tenants in common, under a deed or otherwise than as heirs of an intestate, the provision for the lien does not apply; and as the proceedings under which the sale in question was made were not for partition of lands of an intestate alone, but also for the partition of those lands embraced in the deed above referred to, the statutory lien did not attach. It might be a sufficient answer to this to say that the decree under which the sale was made treated all the lands as if they were lands of the intestate, and no exception thereto was taken by any of the parties, and they, as well as the appellants, who claim under them, are excluded from now raising the question. But a still more conclusive answer is, that however it may be as to the lands covered by said deeds, no such position could be maintained, so far as the lands in Sumter are concerned, as they are not embraced in either of the deeds, and were undoubtedly a portion of
Again, it is argued that the requirement in the order of sale that the purchaser should give bond, with sufficient sureties, rebuts the presumption that any statutory lien was contemplated in this case, and shows that it was not the intention of the decree to rely upon any such security. When if is remembered that at the time this sale was made and up to the commencement of the recent war, it was the very general, if not universal practice, to require purchasers at judicial sales of real estate to give good and sufficient personal security, as well as a mortgage of the premises, it will be seen that such a presumption would have but little to support it. But what is more important, this argument proceeds upon the erroneous idea that a statutory lien is the creature of the court, whereas, in fact, it owes its origin solely to-the provisions of the statute, and the courts could not, if they would, dispense with such a statutory provision any more than they could with the most solemn act of the legislature. Messervey v. Barelli, 2 Hill Ch. 575.
The next question raised by the exception is as to the effect of the repeal of that feature of the act of 1791, which provides for a statutory lien upon sale for partition. Gen. Stat. 801. The position taken by the appellants upon this question, that this provision of the act of 1791 having been repealed prior to the commencement of this action, the plaintiff is prevented from setting up the lien in this case, besides being in conflict with the general principles which govern in the construction of statutes, as laid down in Potter Dwar’s. on Stat. 155-57, Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 450, is likewise in conflict with the express provisions of Section 4, Chapter CXLTVT., (Gen. StaL 766), where, in speaking of the effect of the repeal of the several acts mentioned therein, this language is used: “It shall not affect any act done or right accruing, accrued or established * * * before the repeal takes effect.”
Now, certainly the statutory lien claimed in this case was a right which had accrued long before the repeal took effect, and, therefore, by the express terms of the general statutes, to say
The next position taken by appellants is, that after the expiration of ten years frctea the day of sale, or at least from the maturity of the bond, the action could not be maintained. If by this is meant that payment is to be presumed after the lapse of such a time, it certainly cannot be maintained; but if the meaning is, as we presume from the argument of the appellant’s counsel it is, that Moses having had possession for more than ten years before the lot in question was sold by the sheriff and bought by Ryttenberg, his title could be referred to such possession rather than to his deed from the commissioner in equity, the position is still without any foundation.
It must be remembered that in order to constitute title by possession it must be shown to be an adverse possession, and so far as we can discover, there is no evidence whatever upon that point. But, in addition to this, Moses, as we have seen, undoubtedly went into possession as a mortgagor, for, in this respect, a statutory lien does not differ from an ordinary mortgage, and no length of possession, as such, without proof of something more, will be a bar to an action to foreclose such lien. Norton v. Lewis, 3 8. 0. 25, recognizing and affirming Wright v. Eaves, 10 Rich. Eq. 582.
The next exception is based upon the proposition, which we do not think well founded, that Ryttenberg had no notice of the statutory lien, and, therefore, when he purchased he took his title free from such encumbrance, and those who hold under him hold with like exemption. If a party has such notice as will be sufficient to put him on inquiry, that is enough. 1 Story Eq. Jur. 399, 400, and notes. That Ryttenberg had such notice, there can be no doubt. The recitals in the deed from the commissioner in equity to Moses, which, though not before us, must be presumed to be in the usual form, were sufficient to indicate to him that Moses derived bis title from a judicial sale made for partition, and the law then informed him that at such a sale the land stood pledged for the payment of the purchase money. The most ordinary prudence, therefore, should have dictated to him the propriety of examining the record of the case under which such
The next exception is in these words: “ Because his Honor held that without notice the land of defendant, Ryttenberg, was liable to the demand of the plaintiff.” If this exception was designed to represent the Circuit judge as holding that express notice was not pecessary, then, as we have seen, there was no error; but if the purpose of it is to assail the decision on the ground that it was held therein that Ryttenberg’s land would be liable, even though, at the time of his purchase, he had no notice of the lien of any kind, either express or such as would be implied, from the recitals in the deed to Moses and the records of the office in which the proceedings for partition were instituted, then the exception has been taken in entire misapprehension of the Circuit decree, as no such doctrine is announced therein.
The last ground taken by the appellants is that the penalty of the bond was larger than it should have been, and that the Circuit judge erred in decreeing for the amount of the penalty, as stated in the bond. This exception is based upon the idea that
The judgment of the Circuit Court is affirmed.
Judgment affirmed.