Green v. Niver

43 S.C. 359 | S.C. | 1895

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Gaby.

This is an action commenced May 2, 1892, by the plaintiffs, who are the heirs at law of Adam Green, sr., who died intestate in the year 1881, to remove an alleged cloud upon their title to a piece of land described in the complaint, and situate in Beaufort County. The action was tried by his honor, J. F. Izlar, presiding judge, at the September, 1893, term of the Court of Common Pleas for Beaufort County.

It is stated in the “Case,” that the only facts, other than those found in the decree of the Circuit Judge, necessary to have before the court on the hearing of this appeal are: That on March the 29th, 1872, in pursuance of the act of Congress, entitled “Au act, to continue in force and to amend an ‘act to establish a bureau for the relief of freedmen and refugees,’ and for other purposes,” approved July 16th, 1866, and the acts amendatory thereto, the land described in the complaint, which was the property of the United States, purchased by them under the direct tax acts of Congress, was sold and conveyed to Adam Green, sr., the head of a family of the African race, for the sum of fifty dollars, and a certificate ©f sale was delivered to said Adam Green, sr. This certificate is dated 29th of March, 1872, and the habendum clause is recited in the decree. On the 30th of March, 1872, said Adam Green, sr., executed his deed in due and regular form, purporting to convey, for valuable consideration, the said land to the defendants, C. W. Niver and W. H. Niver, which deed was recorded in R. M. O. office for said county in April, 1872, and under which the defendants claim, and which the plaintiffs are seeking to set aside in this action. The other facts are stated in the decree of the presiding judge, which, together with the exceptions, will accompany the report of the case.

1 Section 143 of the Code provides that the court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. It appears in the proceedings herein that the United States is an indispensable party in order to have a complete determination of two questions arising out of this controversy. 1st. Whether or not the manner in which the certificate of sale was obtained did not render it null and void? 2d. Whether the conveyance of the property by Adam Green, sr., did not work a forfeiture of the rights which inured to the benefit of his grantor, the United States?

This objection may be raised at any time, and is jurisdictional in its nature. In the case of Lowry v. Thompson, 25 S. C., 416, such objection was interposed by the Supreme Court during the argument of the case in that court, and was sustained. The case of The Columbia Water Power Co. v. The Columbia Electric Street Railway, Light and Power Co., 42 S. C., 488, which has just been decided by this court, discusses this question at length, and is authority for the conclusions at which we have arrived in this case.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the complaint be dismissed for want of jurisdiction, without prejudice as to the merits of the action.

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Concurrence Opinion

Mr. Chief Justice McIyer.

I concur in what I understand to be the practical result of this judgment, to wit: the dismissal of the complaint. I prefer, however, to rest my conclusion upon the grounds taken in the Circuit decree, rather than upon the question of jurisdiction, inasmuch as I have some doubts on that point, and the question of jurisdiction was not argued at the hearing; for although that question may be raised at any time even in this court, I think it would be better that the parties should be first heard upon that question before it is made the basis of the decision. In addition to the views presented by the Circuit Judge, it seems to me that the position taken by counsel for respondents, that the plaintiffs, as heirs at law of Adam Green, sr., are now es-topped from questioning his right to convey, is well taken. For even conceding, what I am not tobe understood as admitting, that the restraint upon his right to convey for a limited time, contained in his certificate of purchase, did have the effect of preventing him from exercising such right at the time he made the deed to the defendants, yet, upon the expiration of the time so limited, his right to convey could not be disputed, and both he and his heirs would be estopped from now disputing the validity of the conveyance previously made, upon the principle that one who conveys land to which he has no title at the time, aud no right to convey, but subsequently acquires a good title, is estopped from disputing his previous conveyance. This position is sustained by the cases cited by counsel for respondent—Van Rensselaer v. Kearney, 11 How., 297, aud Jenkins v. Collard, 145 U. S., 546; to which may be added the cases of French v. Spencer, 21 How., 228; Irvine v. Irvine, 9 Wall., 617; Myers v. Croft, 13 Wall., 291; United States v. California & Oregon Land Co., 148 U. S., 31; as well as our own cases of Reeder ads. Craig, 3 McCord, 411; Harvin v. Hodge, Dudley, 25, recognized in Starke v. Harrison, 5 Rich., 7 (though in the case last cited the doctrine was not applied, because there was no warranty in the sheriff’s deed); Lamar v. Simpson, 1 Rich. Eq., 71; and Wingo v. Parker, 19 S. C., 16.

Mr. Justice Pope concurred in the result.