24 S.C. 90 | S.C. | 1886
The opinion of the court was delivered by
On April 2,1866, Richard Gregoi-y, sr., as alleged, executed and delivered to his son, Richard Gregoi’y, jr., the following note or obligation, viz.: “One day after date I promise to pay Richard Gregory, jr., or bearer, the sum of two thousand dollars, to support me my life-time, including to let him use my farm and implements my life-time, and it is to come out of my land and other property that I hold at this time. "Witness my hand and seal this 2 April, 1866.
“RICHARD GREGORY, Sr., [l. s.]”
In November, 1866, the said Richard Gregory, sr., died intestate, and his widow, Margaret, continued to live on the land included in the paper delivered to her as aforesaid, until she also died intestate on December 19, 1879. On the estate of Richard Gregory, sr., no administration was granted until after the death of the widow, Margaret, when, on February 12, 1880, letters were granted to Jonathan Gregory, but he died before administering the estate, and letters de bonis non were granted to Richard Gregory, jr., who, as creditor and administrator, on March 8, 1883, instituted these proceedings in the Probate Court in the nature of a bill to marshal assets; but there being no personal estate, it was manifestly for the purpose of setting aside the deed to Margaret, and making the land covered by it still the property of his father, Richard Gregory, sr., and as such liable for his debt. The other heirs of Richard Gregory, sr., and of his widow, Margaret, were made parties, and they denied that the plaintiff was a creditor of his father, Richard; but if so, that the said Richard did not die seized and possessed of the lands, which he had previously given to his widow, Margaret, and that they, the said lands, belong not to the heirs of Richard, the father, but to those of Margaret, the mother. And further, they insisted that the judge of probate had not jurisdiction to decide that point, as it involved a question of title to land.
The creditors of Richard Gregory, sr., were called in, and the probate judge, after taking much testimony, Held that two debts of the intestate were established, viz., that of the plaintiff for $2,000, and interest, upon the obligation before referred to, and one of J. G. Steadman, on a balance of two notes, one for $221.77,
The first exception is, “That his honor erred in not holding that the paper from Richard Gregory, sr., to Margaret Gregory, bearing date July 7,1866, was testamentary in its character, and hence void, as against the claims of the plaintiff and other creditors, because it had but two witnesses,” &c. It does not appear that this point was made in the Probate Court, or in the grounds of appeal from that court. But it may possibly be considered as embraced in the question of jurisdiction, because the title to land was involved. Considering it as involved in that objection and before the court, we concur with the Circuit Judge that the Probate Court should have decided the question. It may be conceded that, if the proceeding had been instituted simply for the purpose of setting aside the deed, in order to make the lands in the possession of the heir or donee liable for a debt of the ancestor, it would have been purely equitable in character and hot within the constitutional jurisdiction of the Probate Court.
But the proceeding is in form, at least, for the purpose of marshalling the assets of the estate of Richard Gregory, sr., under section 40 of the Code, which gives to the Probate Court jurisdiction for that purpose. “And whenever it shall appear to the
The second exception is, “That his honor erred in holding ‘that the plaintiff’s complaint should be dismissed upon the ground of laches on the part of the plaintiff in prosecuting his claim,’ in that it is submitted that the plaintiff was guilty of no laches, for the testimony shows that he acted within the statutory period, and within the time required by good faith and conscience,” &c. In respect to a question of laches, we do not understand that a proceeding to make land liable for the obligation of a deceased debtor, is identical with an action on the obligation itself against the personal representative of the deceased debtor. In the latter case there is privity of contract, and the action must be at law, while in the former there is no privity, and the proceeding is in equity. Where a legacy has been delivered to a legatee, and he has had separate and exclusive enjoyment thereof for more than four years, the Court of Equity will not allow it to be recovered back for the purpose of paying a debt of the deceased, although the debt is in the form of a bond, and not subject to the statute of limitations.
This being the principle as to lands devolving upon the heirs, it would seem to apply with increased force to one who is in exclusive possession of land claiming as donee of the deceased debt- or, and, therefore, this proceeding must be regarded as having a double aspect, first, to marshal the assets of Richard Gregory, sr., and then, as incidental thereto, to set aside his deed to the widow, Margaret. In this view, the case is not analogous to that of Suber v. Chandler, 18 S. C., 528, cited by the appellant. The proceeding in that case was simply to remove an obstacle in the ■way of enforcing a judgment, and was substantially inter vivos. It is true that the defendant in execution was dead at the time the bill was filed, but he was living at the time the debt was sued and until a short time before judgment was recovered; while the proceeding in this case was primarily to marshal assets, and only for that reason was maintainable in the Probate Court. To enable him to institute such a proceeding, it was not necessary that the creditor should have a judgment at all. He might file a creditor’s bill upon a simple note of the deceased. The appellant had the same right to institute this proceeding at the death of his intestate, Richard Gregory, sr., that he has now. If his right of action could not accrue until he had judgment and a return of nulla bona, it has not yet accrued, for there was no such proof in the case. If administration was indispensably necessary, he might have taken out letters at any time after the death of the intestate, as he has lately done. Without stopping to consider the peculiar character of the deed to Margaret, or whether the Circuit Judge was right in holding that it was good between the parties until
The Judge held as matter of fact, “That no proceedings were had until the commencement of this action in 1883, a period of nearly seventeen years after the plaintiff had notice of the deed. During all these years there has been possession under the deed, and the plaintiff stood by in silent acquiescence. True, there was no administrator of the estate of Richard Gregory until recently, but that need not have prevented a proceeding in equity against Margaret Gregory in her life-time or against her heirs after her death, to subject the land in question to the plaintiff’s claim. Vernon & Co. v. Valk, 2 Hill Ch., 257.” As a rule, ten years adverse possession of land gives title as against all who are capable of suing and do not. If such possession is held under a defective deed, it cures the defect and gives good title; Lyles v. Kirkpatrick (9 S. C., 265), in which the court say: “In itself, the deed is deficient in point of proof for want of two subscribing witnesses; but inasmuch as a possession of upwards of ten years had been held under it of an adverse character, without the assertion of title in opposition to it, the validity of the deed cannot be disputed at this time.”
It is true this proceeding to make the land liable is equitable in its character, to which the statute of limitations, as such, has no proper application. But if the creditor has been guilty of laches in asserting his equity, the court may refuse him its aid, and bar the equitable remedy at a period short of that, which would raise a presumption of payment. Lott v. DeGraffenried, 10 Rich. Eq., 346; Mobley v. Cureton, 2 S. C., 148; Blackwell v. Ryan, 21 S. C., 112; Smith v. Smith, McM. Eq., 134. In this last ease Chancellor Dunkin said: “In regard to equitable titles, courts of equity are to be considered as affected only by analogy to the statute of limitations. If a party be guilty of such laches in prosecuting his equitable title as would bar him if his title was solely at law, he shall be barred in equity.”
The third exception charges that there was another debt proved, against which no objection was made, and therefore, in any view, the land should be sold for the payment of that debt. It is true
The judgment of this court is, that the judgment of the Circuit Court be affirmed.