Dial v. Tappan

| S.C. | Nov 2, 1883

The opinion of the court was delivered by

Me. Chief Justice Simpson.

The defendant, a citizen of Hichland county, in this State, on February 19th, 1873, executed and delivered his bond to Asa Burke, a citizen of Massachusetts, conditioned to pay $2,500, and on the same day executed a mortgage to Burke of certain real estate in the city of Columbia to secure the payment of said bond. Burke afterwards, to wit, in 1879, died testate in Suffolk county, Massachusetts, the place of his residence. In October, 1879, letters of administration with the will annexed were granted to one Philip Sowden, by the Probate Court of Suffolk county; Massachusetts. In May, 1881, the plaintiff, a citizen of Hichland county, obtained letters of administration with the will annexed on said estate from the Probate Court of said county, and in June thereafter instituted the above entitled action to foreclose the mortgage aforesaid.

The defendant demurred to the complaint: First. That plaintiff had no legal capacity to sue, because it does not appear that the estate of the testator in the said bond and mortgage passed to the plaintiff, and because it is not alleged that the said will has been admitted to probate. Second. That the complaint does not state facts sufficient to constitute a cause of action. This demurrer was heard by Judge Cothran, who overruled itr giving leave at the same time to the defendant to answer over. In due time the answer was put in, the defendant, however, filing exceptions to the decree overruling the demurrer. The case was finally heard by Judge Witherspoon, who pronounced judgment in favor of the plaintiff. To that judgment several exceptions were filed, and now the appeal comes up upon these exceptions, and the exceptions to the decree of Judge Cothran,, which decree the appellant seeks to review, with the final judgment of Judge Witherspoon.

The first matter before us, therefore, in order, is the decree of' Judge Cothran. The defendant excepts to this decree upon but-one ground — or rather his exceptions may be condensed into one —as they present substantially but one question, which is, Does the complaint state facts sufficient to constitute a cause of action?' the specifications being, that the complaint failed to aver, that the suit was brought by the plaintiff “as,” or in the capacity of administrator; also, that the deceased died possessed of the chose-in action; also, that the plaintiff as administrator was the owner and holder thereof; also, to whom the money claimed or sued ,for, was due; also, that the will of the testator had been admitted to probate. It is apparent that the complaint was not framed with that precision and minute accuracy which perhaps-the old form of pleadings required, and which it would be best to observe even under the new, so as to prevent delay, prolonged litigation and technical controversies, yet, under the liberal spirit of the code, which looks more to substance than to mere form, we think that the decree overruling the demurrer was free from error.

Taking up the alleged defects to the complaint in the inverse order in wbicb they are presented, the first to be considered is, the objection that there was no averment that the will of the testator had been admitted to probate, j The averment on this subject was, that the pMntiff had been appointed administrator with the will annexed, by the Probate Court of Eichland county. This we think includes an averment of all that was necessary to warrant the Probate judge to make this appointment; and no authority need be cited to the point, that Probate judge could not have granted the letters prior to the probate of the will before him. All that was necessary to entitle the plaintiff to exercise and be clothed with the rights and powers of administrator, was a legal appointment as such by the Probate judge. Of course the officer making the appointment had to be a Probate judge, and the will had to be proved before him, and the appointment could not have been made without these prerequisites. But, as well said by Judge Cothran, the Court of Probate is a constitutional court of record having jurisdiction especially as to the appointment of administrators, and when an appointment is alleged in the complaint, and admitted in the demurrer, the maxim omnia presumuntur rite applies. Upson v. Horn, 3 Strobh. 111; Abrams v. Moseley, 7 S. C. 151. This applies when there is nothing to show that the Probate judge has transcended his jurisdiction.

Next, it is objected that the complaint did not allege that plaintiff was the owner and holder of the bond, or to whom the money was to go when collected. The complaint did allege, however, that the bond and mortgage had been executed and delivered to the testator in his life-time; that said testator was now dead; that plaintiff was his administrator; and he prayed judgment of foreclosure, and that the proceeds of sale be applied to this bond. Upon the principle that where a certain status exists at one time, this is presumed to continue, until the contrary appears, the averments, that the bond and mortgage were executed and delivered to the testator in his life-time; that said testator was now dead; that these papers were executed by a citizen of this State covering real property in this State, and that the plaintiff had been appointed administrator in this State, carried with them prima faoie the legal conclusion, that such administrator was the legal owner and holder thereof. Legal conelusions are not expected to be alleged. In fact it is bad pleading to aver sucb conclusions. All that the complaint need contain is an allegation of the necessary facts leading to the conclusion. It is true, that it was essential to the maintenance of plaintiff’s action, that he should be the legal owner and holder of the papers sued on, and, therefore, he should have alleged facts showing that he was such owner. This we think he has substantially done. Mr. Bliss says : “ That an allegation that a bill or note is payable to or indorsed to the plaintiff, implies that he is the owner and holder, which need not be alleged.” Citing Farmers and Mechanics Banin v. Wadsworth, 24 N. Y. 547. And further, “ If the facts stated imply title, and he is still not the party in interest, it is matter of defense.” Bliss Code Pl., § 176.

It is next objected that plaintiff did not sue as, or in the capacity of administrator. In the case of Bird v. Cotton, 57 Mo. 568, the learned judge who delivered the opinion said: “The capacity in which the plaintiff sued was not as clearly stated as should have been. But the petition styled the plaintiff as executor, stated that the note was made payable to their testator, averred his death, and then brought their letters into court and made proferí of them. All these facts taken together showed unmistakably the capacity in which "the plaintiff sued, and their right to sue, and enables any person to know what was intended.” So we say here. “No form of words is absolutely essential to show the plaintiff’s authority. The pleading is not demurrable if the facts appear substantially, or even obscurely, provided it appear. But the true way is to allege directly the death of the decedent, that letters of administration upon the estate, or testamentary, as the case may be, were issued to the plaintiff upon a day named and by a court named, and that he is still acting as such administrator or executor.” Bliss, § 265.

No doubt it is necessary that the character in which the plaintiff sues should appear in the complaint, but it seems that so this appears substantially in the body of the complaint, or in the complaint taken as a whole, this will be sufficient. True, the defendant should not be taken by surprise. He has the right too to know, whether he is called upon by the proper party, but it would be trifling with justice to permit a party to evade the payment of a just debt on the alleged ground, that his creditor has not stated in terms that he is the owner and holder of the note sued on, when all the allegations in the complaint show that he is such owner and holder;,especially as the court no doubt will entertain a motion to make the complaint more precise where the defendant is doubtful on the subject.

The exceptions to Judge Witherspoon’s decree raise two questions. ' 1. Has the plaintiff Dial in his representative character any title to, or interest in the bond in question? And, 2. Whether the Circuit judge erred in directing the master to tax the costs and disbursements, and in adjudging a sale of the property, unless on or before January 1st, 1883, the defendant paid the debt as well as the costs' and disbursements to be taxed by the master. We have no hesitation in affirming the ruling of the Circuit judge as to the first question. The testator died at his home in Massachusetts. At the time of his death he held this bond and mortgage on the defendant, at that time and since a resident of this State. The plaintiff has administered in this State with the will annexed. ■ We hold that whosoever may be the real parties in interest as to said bond and mortgage, yet that this administrator may sue thereon. In fact the debt could not be collected in the courts of this State without administration. Ordinarily, it is true, that the real parties in interest must sue. But this does not apply to executors, administrators or trustees of an express trust. In every administration there are parties behind the administrator, who are more interested than he— creditors, distributees and legatees in case of will — and to require all these to be made parties in every suit by the administrator, besides destroying the symmetry and logic of the law in such cases, would also occasion interminable difficulties and delays in the settlement of estates.

As to the matter of taxing thefcosts and disbursements by the master under the order of the court, this presents some difficulty but we think the exception should be overruled. The act of assembly creating the office of master for Richland county, 16 Stat. 609, invests the master with all the powers, &e., which formerly belonged to masters and commissioners in equity under the act of 1840, not inconsistent with the code. Now the sixth section of the act of 1840, provided, that masters in equity shall attend the sittings of the Court of Equity, &c., “and they shall also, without order, tax the costs of any suit in said court upon application of any party thereto, after due notice to the adverse party.” The act creating the master for Richland was approved March 22d, 1878. At that time there was nothing in the code inconsistent with the above provision of the act of 1840.

It is true the code then provided by section 337 (old), that the clerk should insert in the judgment the costs and disbursements ; and this section is still retained since the fee bill has been amended, or rather substituted, by a new one by the act of 1880, (17 Stat. 303,) but it is nowhere stated that the costs and disbursements shall be taxed by the clerk exclusively. The clerk is to insert in the entry of judgment, on application of the prevailing party, upon five days’ notice, &c., the sum of the allowances for costs as provided in the code, the necessary disbursements, &c., and the clerk alone can insert in the judgment these costs; but there is nothing inconsistent with this duty of the clerk that the Circuit judge in an equity cause should, preparatory to an insertion into the judgment of the costs in such a cause, order the officer of the court created to aid the court in such cases, to estimate the costs and disbursements. In chancery cases the court has control of the question of costs. Code, § 323. Before judgment is entered for the costs the clerk would still have to insert them under the law prescribing his duty in that respect. All that can be said of the taxing by the master is, that it might be regarded as unnecessary work'.

The point which is impliedly raised in the eighth ground of appeal cannot be sustained under the circumstances of this case. It is quite true that in actions for foreclosure, the proper course is to ascertain the amount due on the mortgage debt, either by a reference to the master, or other recognized “proper mode,” before an order of sale is made, so that the defendant may have an opportunity of contesting the amount so ascertained. But in this case no issue was made'in the pleading as to the amount due on the bond secured by the mortgage. The defendant did not deny his liability to some one for said amount; the Circuit judge might, therefore, without a reference to the master, have ascertained the amount; but regarding it doubtless as a mere matter of arithmetical calculation, he simply directed the master to make such calculation instead of making it himself, as he might have done. It is not like the case of Childs v. Frazee, MS. Dec. No. 843, filed March 24th, 1880, where there was a failure to decide one of the issues made in the proceeding. We do not think, therefore, that this would furnish a sufficient ground for sending the case back, especially as it is not even now suggested that any error has been committed in making the calculation of the amount due on the mortgage debt.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.