Hendrix v. Holden

36 S.E. 1010 | S.C. | 1900

Lead Opinion

Aug. 24, 1900. The opinion of the Court was delivered by On the 30th day of June, 1891, Mrs. Naomi Holden departed this life intestate, survived by her husband, William Holden, and her children, the plaintiffs, who were all minors at that time; on the 12th day of October, A.D. 1891, the defendant, William Holden, procured letters of administration upon her estate to be granted to him by the probate court of Oconee County, S.C. and her personal estate was very inconsiderable, but her real estate was considerable, lying partly in Oconee County and partly in Pickens County, although at her death she was residing with her said husband and with her said children in the little town of Westminster, in Oconee County. In 1888, the plaintiff, N.A. Holden, intermarried with — Hendrix, and never afterwards lived as one of the family. Mrs. Naomi Holden had given her note to the firm of Peden Anderson, and also executed a mortgage of some of her lands to secure said note. Mrs. Holden had also, in the year 1888, executed her two sealed notes to her husband, William Holden, one for the sum of $5,500, due at one day after date, and dated the first day of November, 1888, with interest at seven per cent. per annum, and another of the same date, and also due at one day after date, at seven per cent., for the sum of $1,500, both aggregating the sum of $8,000.

On the 12th day of October, 1891, upon the application of William Holden, he was appointed the administrator of the personal estate of his wife, Mrs. Naomi Holden, deceased, gave bond as such administrator with sureties thereto, and had letters of administration duly issued to him by Mr. Lewis, the probate judge for Oconee County. William Holden transferred the two sealed notes, given to him by his said wife, Mrs. Naomi Holden, for value, unto John D. Verner. On the 8th day of September, 1892, John D. Verner brought his action in the Court of Common Pleas for Oconee County, S.C. against the said William Holden, as the administrator of the estate of Naomi Holden, deceased, and also in his own right, the service of summons in which was accepted in writing by William Holden, as said administrator and as an individual. William Holden, as administrator and in his own right, neither answered, demurred nor appeared in said action. On the 6th day of October, 1892, in regular term time, judgment was rendered in said action against William Holden, as administrator, c., of Naomi Holden, deceased, for the sum of $8,919.38, and for a like amount against William Holden, as an individual. Executions were issued under said judgments. Levies were made upon certain pieces of real estate belonging to the estate of Mrs. Naomi Holden, deceased, in October, 1892, some in 1894, and some in 1896. Sales were made of certain lands of the intestate, and some of intestate's lands were purchased by John D. Verner, some were purchased by Josiah Holden, some were purchased by William M. Gossett, and some were purchased by Thomas N. Hall and L.G. Gaston. These purchasers entered upon the possession of their respective parcels of land immediately after the sheriff's sale thereof to them, respectively, under his deeds therefor, and the same parties are still in possession of said land so purchased. All the real estate in Pickens and Oconee Counties, not sold by the sheriff, still remains in the possession of William Holden and his children.

So on the 15th day of January, 1898, all the children of Mrs. Naomi Holden, deceased, as plaintiffs, began their action against William Holden, John D. Verner, J.P. Carey, W.M. Hagood, the Seneca Bank, W.P. Anderson, William M. Gossett, Josiah Holden, Thomas N. Hall and L.G. Gaston, as defendants, alleging the foregoing facts, but claiming that the sales made by the sheriff of Oconee County under the judgment and execution thereon of J.D. Verner against William Holden, as administrator, c., of Naomi Holden, deceased, are null and void, and that such lands so attempted to be sold, together with all the other lands of the intestate's estate, were seized by them and William Holden in fee simple as the heirs at law of Mrs. Holden, deceased, and they demanded partition. It should have been stated that the defendants, J.P. Carey, W.M. Hagood, Bank of Seneca, are made parties because they hold claims by lien against the defendant, William Holden. The defendants, John D. Verner, W.P. Anderson, William M. Gossett, Josiah Holden, Thomas W. Hall and L.G. Gaston, deny that the lands purchased by them at the sheriff's sale under the judgment of John D. Verner, as plaintiff, against William Holden, as administrator of the personal estate of Naomi Holden, deceased, and against him as an individual, are now the property of the plaintiffs and the defendant, William Holden, as heirs at law of Naomi Holden, deceased, and that such lands remain for partition amongst such alleged heirs at law; but, on the contrary, the defendants allege that such lands are now owned and held by them as their own, respectively, freed from any and all rights or claims thereto by such heirs at law, or any one or more of them. The action of the children of Mrs. Naomi Holden was begun in Pickens County, as some of them resided in that county (Pickens), and some of the lands were there located. But upon motion of the defendants. John D. Verner and the others in like plight with him, an order by consent was passed transferring the record to the county of Oconee, where their lands were located, for trial in the latter county. Soon after the actions were transferred to Oconee, an order was passed by consent that "trial by jury being waived," all the issues of law and fact were referred to J.W. Holleman, Esq., as master, with leave to report any special matter. It was admitted by all the counsel engaged that Naomi Holden, at the time of her death, was the owner in fee of the lands in dispute in the case, and that she is the common source of title from whom all the parties to this action are claiming title. On September 28th, 1899, "It was admitted by all the parties that the administrator of Naomi Holden is a proper party to this suit in his representative capacity, and it is agreed that the summons and complaint be so amended as to make him a party; that his answer be filed as of this date." Such answer of William Holden, as administrator of the personal estate of Naomi Holden, deceased, was accordingly made, wherein he admitted that he was such administrator. Testimony was taken before the master in regard to the judgment, execution and sales in the action of John D. Verner, as plaintiff, against William Holden, as administrator of the estate of Naomi Holden, deceased. "It was admitted and agreed by counsel for appellants and respondents that the levies on the several tracts and lots of land by the sheriff under said execution, the advertisement of the same for sale, and the deeds to defendants, John D. Verner, Josiah Holden, Thomas N. Hall, L.G. Gaston and W. M. Gossett, were regular in all respects, and no question is raised as to the regularity of any of said official acts of the sheriff in making levy, advertisement, sale or conveyance of the several lots and tracts of land to said defendants respectively."

After hearing all the testimony, the admissions and the pleadings, the master, J.W. Holleman, Esq., found amongst other things as follows: "That Naomi Holden died at the time and survived by her husband and her children as stated in the complaint, and that she was seized of the real estate as set out in the complaint. That William Holden, on 12th October, 1891, was duly appointed the administrator of the personal estate which belonged to her estate at her death, and letters of administration were duly issued to him. He thereupon entered the discharge of his duties as such administrator, and is still such administrator." That John D. Verner began his action against William Holden, as such administrator, and against such William Holden, as an individual, to obtain judgment against such William Holden, as said administrator and as an individual, for the $8,500 due by Naomi Holden in her lifetime to her husband, William Holden, which were duly transferred to the said John D. Verner by written assignment, which culminated in a judgment against said William Holden, as administrator as aforesaid and as an individual, for $8,919.38 and costs, on the 14th day of October, 1892. That the real estate as described in the answer of John D. Verner, W.M. Gossett, Thomas N. Hall, L.G. Gaston and Josiah Holden was sold by the sheriff under the execution issued under said judgment, which execution "commanded said sheriff to satisfy said judgment out of the personal property belonging to the estate of Naomi Holden, deceased, and if sufficient personal property cannot be found belonging to said estate, then out of the real property belonging to the estate of Naomi Holden." That the defendants above named purchased the same, took deeds therefor, went into immediate possession and remained in possession until now, said sales of land took place in the years 1894 and 1896. At the time of the death of Naomi Holden, all her children (the plaintiffs) were minors. That no partition was ever had of said lands amongst the said heirs at law, nor any fact tantamount thereto. That William Holden's possession of said lands was as administrator, and he paid debts of his intestate with rents. He finds also that the judgment of Peden Anderson, now owned by Anderson, is in proper condition. As conclusions of law, he finds the judgment of John D. Verner is effective from all collateral attack; that the administrator had a right to waive his privilege of twelve months from suit (of course, in case of fraud, it would be different). That the plaintiffs are bound by the judgment taken by J.D. Verner against their mother's administrator; he finds no irregularities in the judgment nor in the levy and sales thereunder. He holds the titles of the defendants as purchasers valid, and recommends that the complaint as to such defendants be dismissed. The plaintiffs and defendant, William Holden, excepted to the master's report, and it is deemed important that we have the text of these exceptions before our eyes for a future purpose, and, therefore, we reproduce the plaintiff's exceptions and then the defendant's, William Holden, to wit:

"1. The master erred in holding that in this case the burden of proof herein rests upon the plaintiffs to show that they, as heirs at law of Naomi Holden, deceased, were in actual and exclusive possession of the lands in dispute at the time of the alleged judgment against the administrator of Naomi Holden, deceased, was obtained and sale of the lands thereunder had, it being respectively submitted that the said burden rests upon the defendants, who claim title thereunder.

"2. In not holding as a matter of fact that the evidence in this case shows that at the time said judgment was alleged to have been obtained and sale thereunder had, the plaintiffs herein and the defendant, William Holden, were in the actual and exclusive possession of said lands, and in not holding as a matter of law that the plaintiff in execution had, therefore, no right to sell any of the said lands thereunder, and that said sales were, therefore, void and passed no title to the purchaser or purchasers.

"3. In not holding that the judgments under which the purchasers at said sale purchased never acquired any liens on said lands for the reasons aforesaid, and that the heirs at law of Naomi Holden, deceased, were not parties to the said suit, and, therefore, not bound by said judgments.

"4. In not holding that the judgment and execution in this case, and under which defendants claim title, did not run against the administrator de bonis testatoris, and was, therefore, no authority to sell lands of Naomi Holden, deceased.

"5. In not holding the judgment under which certain defendants claim title to the lands in dispute void, in that the record shows upon its face that the suit was brought within the period inhibited by the statute from bringing suits by creditors against administrators. See sec. 2332 of Rev. Stat. of 1893.

"6. In not holding as a matter of fact that there was collusion between the defendant, John D. Verner, and the administrator of Naomi Holden in obtaining said judgment, and in not holding, therefore, as a matter of law, that the defendant, John D. Verner, could acquire no title thereunder.

"7. In not holding that the defendants, nor any of them, cannot hold the lands in dispute, for the reasons that the evidence shows that the lands were worth not exceeding $1,000 at the time of the alleged sales, and were exempt from sale under homestead laws of this State.

"8. In not holding that as to heirs at law of Naomi Holden, deceased, the notes which the defendant, John D. Verner, claims to have obtained his judgment upon — being the judgment under which the lands were sold — were barred by the statute of limitations, and were void because they were not such contracts as Naomi Holden, being at the time a married woman, could lawfully make; and in not holding that said heirs at law could make such a defense in this action, and especially as against the defendant, John D. Verner, who had notice thereof.

"9. In not holding that the judgment of defendant, W.P. Anderson, proven in this case against Naomi Holden, is void as to the plaintiffs in this case, for the reason that it shows upon its face that the plaintiffs were not properly served in the suit against them under which said judgment was obtained.

"10. In not holding that the lands described in the complaint were subject to partition among the heirs of Naomi Holden, as alleged therein, and in not recommending that the lands be sold and the proceeds divided among them, as prescribed by law, subject to such liens as was proven against the interest of William Holden, to wit: The mortgage of J. P. Carey, Seneca Bank and Wm. Hagood.

"11. In not holding that plaintiffs had established all the material allegations of their complaint, and were entitled to the relief prayed for.

"12. Because the master erred in holding that the testimony failed to show that William Holden was in possession for himself as heir at law and the other heirs at law, but does show that he was in possession as administrator, qualified possession, and used the rents for the estate.

"13. Because the master erred in holding that the commencement of the action against the administrator before twelve months had elapsed after the grant of letters of administration, did not render the judgment void on its face, but only voidable, and that the administrator could waive his right to resist the suit on that ground.

"14. Because the master erred in denying the right of homestead to the plaintiffs and the defendant, William Holden.

"15. Because he erred in finding the judgment of W.P. Anderson regular and valid.

"16. Because he erred in holding the title to the several tracts of land — described in the separate answers of John D. Verner, Wm. M. Gossett, L.G. Gaston, Thomas N. Hall and Josiah Holden — to be good.

"17. In finding balance due on judgment of John D. Verner to be $1,639.18, and its priority."

The defendant, William Holden, as administrator, filed the following exceptions:

"1. Because the master erred in holding that the possession of this defendant of the lands in dispute was as administrator of the estate of Naomi Holden; whereas, he should have held that he, together with the other heirs at law of the said Naomi Holden, were in the actual and exclusive possession of the lands in dispute, claiming the same as heirs at law of Naomi Holden, from her death till the sale of same by the sheriff of Oconee County, and that a sale of said lands by the said sheriff was null and void, and carries no title.

"2. Because the master erred in not holding that this defendant was entitled to a homestead, as to his interest in the lands of his deceased wife as to the judgment against him individually, and that said sales were void as to him, his homestead right preventing the judgment under which said sales were made from being a lien on his interest in said lands.

"3. Because the master erred in holding that this defendant was not entitled to a homestead.

"4. Because the master erred in finding any amount due on J.D. Verner's judgment or W.P. Anderson's judgment, or any priority for them."

The cause then came on to be heard before his Honor, Judge Ernest Gary, at the November term of the Court of Common Pleas for Oconee County, on the exceptions to the master's report. When Judge Gary filed his decree on 6th December, 1899, he held that, first, William Holden was not the administrator of the personal estate of Naomi Holden, deceased, and second, that the lands having been in the exclusive possession of William Holden and his children from the moment Mrs. Naomi Holden departed this life until ousted of such exclusive possession by the purchasers under the sheriff's sales of said lands, hence the sales made by the sheriff conferred no title upon the purchasers of said lands. He, therefore, adjudged as follows: "I, therefore, hold that the titles under said judgment (J.D. Verner v. Wm. Holden, as administrator of Naomi Holden, deceased, and as an individual) of John D. Verner are invalid as against the heirs at law of Naomi Holden, and that they are entitled to have the same (lands) partitioned. The judgment is assailed on several other grounds, but having arrived at a satisfactory conclusion, I think it unnecessary to pass on them. It is, therefore, ordered, that the exceptions of the plaintiffs and such of the defendants as have filed exceptions to the master's report be, and the same are hereby, confirmed, in so far as they are consistent with the views announced in this decree, and that the report of the master is hereby reversed, in so far as the findings of fact and conclusions of law are inconsistent with the conclusions announced in this decree. It is further ordered, that the master in equity for Oconee County do sell, on salesday in February next, or on some convenient salesday thereafter, all of the lands in dispute in this cause belonging to the estate of Naomi Holden, situate in the county of Oconee, after due and legal notice of said sale for twenty-one days, according to the rules of this Court, upon the following terms: * * * Leave is hereby granted for any of the parties to this suit to apply at the foot of this decree for any further order that may be necessary to carry out the views herein announced."

From this judgment, the defendants, John D. Verner, William M. Gossett, Josiah Holden, Thomas N. Hall and L. G. Gaston, have appealed. But before referring to the grounds of appeal, it might be well to insert the agreement of all the counsel as to the scope and effect of Judge Ernest Gary's judgment: "It is hereby agreed by and between all of the attorneys in the above stated case that the decree rendered by Judge Gary in said case has only passed upon the rights of the plaintiffs and of the defendants who claim to have bought lands at the sheriff's sale under the judgment of John D. Verner v. William Holden, individually and as administrator of the estate of Naomi Holden, and has not considered or determined the rights of any of the other defendants in the said case; and that the rights of all of the other defendants are to be determined by such future proceedings in this case as may be necessary in the event that the decree of the Circuit Judge is confirmed; and the time for any of the said defendants to appeal from this decree, if they should be advised that the decree of Judge Gary affects the rights and defenses set up by the defendants in this case, except those who have already appealed from said decree, be extended until the final determination of this case. March 16th, 1900." (Signed by all counsel in case.) Whereby it is manifest that the parties contesting have determined to restrict the operation of Judge Gary's judgment within those limits, to wit: the rights of the plaintiffs and of the defendants, who claim to have bought lands at the sheriff's sales under the judgment of John D. Verner against Wm. Holden, individually, and as administrator of the estate of Naomi Holden. We will not reproduce the exceptions in terms; they are intended to assail the judgment of Judge Gary on the two findings and conclusions which we have already set forth herein. In the abundance of caution, however, we will direct the judgment of Judge Gary and the exceptions thereto reproduced in the report of this case.

The exceptions complain that the learned Circuit Judge overlooked the fact that the master in his report distinctly found that William Holden was duly made the administrator by the probate judge of the county wherein the intestate resided; that he qualified as such on the 12th October, 1892, and has so remained until to-day. The very object of exceptions is to point out the exact errors of law and fact made in the report of a master or a decree of a Circuit Judge. All the issues of law and fact were committed to the decisions of J.W. Holleman, Esq., as master. When his report was made, it was binding on all the parties unless excepted to, and such exceptions are required to set out in what particulars there was error committed by the master. Unless exceptions are taken, the Circuit Judge must make the findings of fact and the conclusions of law of the master the basis of his judgment or decree. It is not in the power of the Circuit Judge to disregard the machinery provided by law for the conduct of business in our Courts. When parties litigant confide the trial of all issues of law and fact to the master, they are entitled to have the report of such master on all such issues confirmed by the judgment of the Circuit Court, unless excepted to; and in the event of exceptions, the Circuit Judge is limited to those exceptions, and he cannot of his own motion go outside of these exceptions. This is not to be viewed as a hardship to the Circuit Judge no more than the requirements of our Constitution that the Supreme Court of the State shall not pass upon facts in a law case. Inasmuch as the master passed directly upon the validity of the administratorship of William Holden and held that he was such administrator, and there were no exceptions to such findings of fact and conclusion of law by the master, it is not an open question, so far as the parties to this action are concerned, whether such finding of the master is conclusive. And it is just as imperative upon the Circuit Judge.

But apart from this point, which we hold to be conclusive, it is not so certain that the action of the probate judge in the matter of the appointment of Wm. Holden as administrator is not conclusive. Reliance is sought to be placed upon the case of Hartley v. Glover, 56 S.C. 69, as authority for the Circuit Judge in declaring the administration of Holden void. But a reference to that case will show wherein the difference exists; for in the case cited, it was where Mr. Assman, as clerk of Circuit Court, had applied for letters of administration upon a derelict estate, under the statute of 1873 (sec. 2034, Civil Statute Law of South Carolina, Rev. Stat., vol. 1). In such statute it was made imperative upon the probate judge to publish a notice for forty days in some newspaper * * * and after such notice to grant such letters, but it appeared upon the face ofthe record itself that only about thirty days had expired, and this Court held that it was necessary in order for the probate court to have jurisdiction in the case of administration to be granted in derelict estates, that such forty days previous notice has been given. In the case at bar, under section 2023 of vol. 1 of the Revised Statutes of this State, it is made the duty of the probate judge to grant administration to the husband of his deceased wife, if he applies therefor, and in section 2027 it is provided: "The judge of probate shall grant administration in the following manner: After requiring the person or persons applying therefor to file a petition in writing, he shall issue a citation to the kindred or creditors of the intestate or person deceased, to show cause, if any they have, why administration shall not be granted to the person or persons applying therefor, and he shall cause the same to be published on the court house door of the county in which his office is, for two successive weeks, and also by having it printed once a week for two successive weeks, after it has been issued, in some public gazette, if any be published, in the county." It is suggested that in the record produced by the probate court, it does not appear affirmatively that the probate judge published notice of the application by Holden for letters of administration. It must occur to any one that there is quite a difference between a record which shows upon its face that only thirty days notice of application was had, when forty days notice was required, and one in which there is no paper produced showing that notice for fourteen days had been given. One shows a positive or affirmative violation of the statute, and in the other there is no showing as to publication at all. One is positive and affirmative, and the other is negative. In the latter it may be shown that such notice was given, in the former the record could not be contradicted. In the former it is physically impossible to make thirty days become forty days. In the case at bar, the bond is there, the appointment is there, the letters of administration are produced. Why may we not assume that this probate court being a court of record, invested by the Constitution of 1868 with jurisdiction in all matters testamentary and ofadministration (see sec. 20, art. IV., Con. 1868,) and also a court of which it has been said: "The court of probate in its jurisdiction is not an inferior court, but is so important that the same rules of construction are to be made in favor of its jurisdiction and the effect of its record as is applied to courts of general jurisdiction. Herm. Estop., p. 148, section 140."Thomas v. Poole, 19 S.C. 336. See, also, in Turner v.Malone, 24 S.C. 398, it is declared that "the court of probate, though of limited jurisdiction, is a court of record with very large powers, and as to proceedings clearly within its jurisdiction, is not to be regarded as an inferior court in respect to the dignity of its records." We would have no hesitation in agreeing with the Circuit Judge in his view of the invalidity of the record of probate court in showing the appointment by that court of William Holden as administrator of Naomi Holden, deceased, if there was anything in the records of that court showing affirmatively that notice of fourteen days was not given by publication. In such an event, the case ofTurner v. Malone, supra, when it did show affirmatively that service had not been made; or the case of Finley v. Robertson,17 S.C. 438, when it was shown by the record affirmatively that service of summons was accepted for the infant defendants; or in the case of Hartley v. Glover, 56 S.C. 69, where it appeared affirmatively upon the record that notice had not been published for forty days, but only thirty days, would apply. Here there is no testimony that such notice was not published; only an absence of such statement fromthe record. If in the case at bar the plaintiffs had pleaded that the appointment of their father as the administrator was procured from the probate court without any publication of the fourteen days notice to heirs or creditors, and the proofs had been that the office or court of probate had been searched and no such notice had there appeared, or that no such notice had been published in the newspaper at the time required by the statute, then the Circuit Judge would have been right, but no such allegation appeared in plaintiff's complaint, nor was there any such proofs, as we have just described, offered.Turner v. Malone, supra, treats of what is void and what is voidable in judicial records. So that even from this second consideration (which is not necessary to our holding the Circuit Judge in error), we think there was error in the Court below.

Second. As to the "exclusive holding" of the heirs at law of Mrs. Naomi Holden, deceased, upon her death until the purchasers at the sale of her lands under the judgment in the action of John D. Verner v. Wm. Holden, as administrator and as an individual, rendering the claims of the heirs at law valid; consider these dates: Mrs. Naomi Holden died 30th June, 1891; Wm. Holden appointed administrator of her estate 12th October, 1891. Mrs. Holden, the intestate, thus appears to have died between the dates fixed by law, when all her crops were assets in the hands of her administrator. Then her lands could not be in the hands of her heirs at law during the year 1891, but were in law in the hands or under the control for that year of her administrator, Wm. Holden. On 14th October, 1892, executions were issued under the judgment against William Holden, as administrator of Mrs. Naomi Holden, deceased, and also against the said William Holden, as an individual, and under the law executions are liens on lands as soon as judgment is entered up, if such executions are then issued; so, therefore, these judgments were liens upon all the real estate of Mrs. Naomi Holden on the 14th October, 1892. As Mrs. Naomi Holden died intestate, the law threw title to William Holden, her husband, for one-third of said lands, and this execution issued under the judgment, and the judgment itself against him individually, were liens upon his own third part of said lands on the 14th October, 1892. When did William Holden ever render up his possession of his wife's lands, which he took by virtue of his administration on 12th October, 1891, but which the law refers back to the death of his wife, the 30th June, 1891? This Court is well aware that under certain circumstances it is permitted to heirs at law to assert their rights to exclusive ownership of the lands which belonged to their ancestor (whose title is devolved upon them by operation of law); Jones v. Wightman, 2 Hill, 579; Bird v. Houze, Speer Eq., 250; but it is well aware that these decisions recognized D'Uprey v. Nelson, 1 Brev., 289, and Martin v. Latta, 4 McC., 128. We greatly fear that there is gradually creeping into the legal mind of this State an idea that very slight causes will operate to defeat the right of creditors of an intestate to have the lands of such intestate sold under a judgment against an administrator, which is recovered soon after the twelve months have expired, during which, under our statute, an administrator is protected from suit. In the case at bar, the creditor sued a little more than a month before the twelve months had expired, reckoning from the date of administration, 12th October, 1891, during which the administrator was protected from suit. On the 14th October, 1892 (just two days after twelve months had expired), judgment was entered up, and on the 17th October, 1892, an execution was levied upon lands of the intestate. Now it is patent that most of the cases which seem to sustain an heir at law when he occupies intestates lands — such as Bird v. Houze, supra; Jones v.Wightman, supra; Valk v. Vernon, 2 Hill Ch., 257; Huggins v. Oliver, 21 S.C. 147 — all seem to point to something akin to laches on the part of the creditor, whereby personal assets have been done away with by administrator or executor. There is in none of these cases a denial of the fact that for nearly one hundred years it has been the law in this State that, under a judgment obtained by a creditor against an administrator, lands of an intestate in the hands of intestate's heirs may be sold to satisfy such judgment. Huggins v.Oliver, supra, where Chief Justice McIver sought to make clear the law on both these points, and, also, so does Rogers v. Huggins, 6 S.C. 356. There can be no case found where the possession of an administrator, who is also heir at law, and seven infant heirs at law, for about three years from the death of an intestate (one of which years was when suit could not be brought), was held to ripen into a right to oust purchasers of such lands at sheriff's sales under a creditor's judgment against the administrator of an intestate whose lands were sold. We must overrule this proposition of the Circuit Judge.

But, apart from all these things, the judgment of the Circuit Court cannot stand, because, certainly, the defendants, here being considered, had the right to have allowed them the one-third part of the lands to which William Holden was entitled as an heir at law of his deceased wife.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the action remanded to the Circuit Court for a new trial.

---

Concurrence Opinion

I concur in the conclusions reached in the opinion of Mr. Justice Pope. While it is true, in a case of this kind, the Court cannot review the findings of fact by the Circuit Court, yet if such findings are based upon or influenced by some error of law, the judgment based upon such finding is reversible for error of law. The conclusion of the Circuit Court that the heirs at law of Naomi Holden were in actual and exclusive possession of the land at the time of the rendition of the judgment against William Holden, as administrator, was not based wholly upon the evidence, but was necessarily influenced by his view (1) that William Holden was not the administrator of Naomi Holden, and (2) that the burden of proof rested on the defendants to show that the heirs at law were not in the actual and exclusive possession of said land. I concur in the view of Mr. Justice Pope, that it was error of law for the Circuit Court to reverse the finding of the master, that William Holden was duly appointed as administrator of Naomi Holden. Entertaining the view that William Holden was not the administrator, it was natural for the Circuit Court to conclude that the master was in error in holding that William Holden was in possession as administrator. In my opinion, also, the Circuit Court erred as matter of law in holding that the burden of proof was upon the defendants to show that the heirs at law of Naomi Holden were not in the actual and exclusive possession at the rendition of the judgment. It is true, that when plaintiffs showed a common source of title in Naomi Holden, and that they were her heirs at law, this cast the burden upon the defendants; but when it appeared that defendants were in possession as purchasers at a sale under a judgment against the administrator of Naomi Holden, this was a valid defense, unless plaintiffs should show that at the rendition of such judgment, they were in exclusive and actual possession as heirs at law, and so were not bound by the judgment. Ordinarily, a sale of land of an intestate under judgment against the administrator carries the title of the heirs at law. An exception to this rule is where the heirs at law are in the actual and exclusive possession at the rendition of the judgment and the sale. But to avail themselves of this exception, plaintiffs must show the facts upon which the exception is based as against purchasers in possession.

---

Dissenting Opinion

The issue as to "exclusive possession" was properly triable by a jury on the law side of the Court. The waiver of that mode of trial does not give this Court the right to review the findings of fact by the Circuit Judge. I, therefore, dissent from the opinion of Mr. Justice Pope.