| S.C. | Aug 8, 1871
The opinion of the Court was delivered by
John J. Kinsler died in January, 1865, leaving a last will and testament, of which his brothers, the plaintiffs, with another brother, William Kinsler, were appointed executors. The plaintiffs alone qualified. The brief does not furnish us with a copy of the will, and the only disposition which it contains that has been brought to our notice, is that which makes the three brothers the residuary devisees, and as such entitled to a certain piece of land known as the brick yard tract, situated on the eastern bank of the Congaree River, “near the old Columbia Ferry.” In December, 1865, they applied to the Legislature for a charter of a ferry across the said river, at a point indicated in their petition, which was granted with such rights and privileges as pertain to franchises of the like character. — 13 Stat., 53. A bill was filed by the plaintiffs to marshal the estate, and by the usual order creditorswere required to present their demands. On the examination of the accounts of the executors, it was claimed they held the ferry for the benefit of the estate, and that the creditors had a right to the rents and profits which accrued from it. The Referee sustained the claim, which being taken by exception to the special Judge (sitting by regular appointment in the place of the Judge of the Fifth Circuit) was overruled, and an appeal from his judgment brings the question to this Court.
It is contended on the part of the creditors that the grantees of the ferry, two of them the qualified executors under the will, and the other named executor, but never qualifying, stood in relation to the estate as trustees, and, occupying that fiduciary position, they must be regarded as holding the ferry and its rents and profits for the benefit of the creditors. The argument proceeds upon the ground that
There was no charge of fraud or improper dealing, on the part of the petitioners, in the mode or manner by which the grant was obtained, and the appellants must rest on the naked principle of equity, which they contend entitles them to the relief they seek.
In December, 1865, the right and title to the land, of which, in their petition, they averred ownership, was in them, not in either of them as executors, but in all of them as devisees. It "was subject to the lien of judgments which existed against the testator at the time, of liis death, but still the fee was in them, subject to their control until divested by a sale under the judgments. They had a right of entry with all the incidents which a legal title conferred.
A distinction is to be borne in mind between the right of an executor and that of a devisee to enter upon the land and enjoy the profits. It is clear that a mere executor, having no title in the land himself, would be bound for the rents and profits to the devisees or creditors if he received them. The executor derives from the will no title to the real estate, as he does to the personal property. When the character of executor and devisee combine in the same person, there, on entry, the presumption is that it is made as de-visee, and not as executor, because the act will not only be referred to the right but the greater intersst, on the general principles which usually govern the motives and influences of human action. Here, however, the executors made public declaration that they held as devisees, for -they aver, in their petition to the Legislature, that they were the owners of the soil.
“ The rents and profits of the real estate of one who has died insolvent belong to the heirs, and not to the executors or administrators, until such real estate be sold for the debts of the insolvent, or by order of a competent Court.” — Bac. Ab., Ex’ors. & Adm’rs., IT., p. 3.
In Gibson et al. vs. Farley et al., 16 Mass., 285, it was held that the heirs of a deceased insolvent are entitled to the rents and profits of the real estate of the deceased, until it is sold for the payment of debts.
An analogy is there drawn to the case of an estate mortgaged. “ So long as the creditor permits the heirs of the mortgagor to re
In Jewell vs. Jewell, 8 Rich. Eq., 296, it was held “ that where an administrator received the rents of the real estate of the intestate, he is liable to account to heirs for the rents thus received.”
Chancellor Harper said in Fripp vs. Talbird, 1 Hill’s Ch., 144, “ In a case, decided by myself as Chancellor, at Columbia, I held, after very full consideration, that an heir-at-law in possession was not accountable for rents and profits.”
In Hull vs. Hull, 8 Rich. Eq., 296, it is said of real estate, “ The title does not vest in the personal representative, nor has he any control of such property, except what may result from the provisions of the will. If it is devised, unless devised to the executors, or power is given him to dispose of it, he has no power to interfere with it, and the devisee takes it without his assent.”
The general principle of the common law, as to the right of the heir, or devisee to enter on, and enjoy the land, is affirmed by the Act of 1789, 5 Stat., Ill, which excludes such right where the party in possession, engaged in making a crop vúth slaves, dies after the first of March : the growing crop is declared assets in the hands of the personal representative for payment of debts, &e., and the emblements of the land, before the last day of December following, are also like assets, but all after that period severed shall pass with the lands.
The residuary devise, under the will of J. J. Kiusler, was not absolutely void. It vested the title to the real estate upon which it operated in the devisees named. Until they were deprived of it by a sale under some proper proceeding for the payment of the debts of the testator, there was no paramount title in any other person, nor was it affected by any trust as to the rents aud profits. In Fripp vs. Talbird, 1 Hill Ch., 143, it is said, “ that even where a deed is void as against creditors, until seizure of the property, the party in possession is not bound to account for the rents and profits.”
The Legislature, however, had the power to grant a charter for a ferry at the place designated without any regard to the ownership of the landings. "VVe are bound to presume that all the formalities of the law were complied with, which are required on applications for franchises of this character. The right to establish a ferry is an incident of sovereignty, and an individual-can be lawfully deprived
The case of Huson vs. Huson, 1 Rich. Eq., 1, presented an entirely different question from the ease now before the Court. There the intestate had contracted for the purchase of land with the unexpired term of a ferry. It was presumed, as it was the duty of the administratrix to complete the purchase and take a conveyance, that she had so done. Still continuing administratrix, she obtained a re-charter of the ferry in her own name. Chancellor Plarper, in his Circuit decree, held her responsible for the rents and profits. The decision was rested on the analogy to the doctrine of renewals of leases by trustees or tenants, the general principle which governs it being, “that if trustees, mortgagees aud persons interested obtain renewal, the new lease is always subject to the trusts and limitations of the old.” There is another circumstance in that case which distinguishes it from the one before us. There the possession of the administratrix was as a tenant in common with her children, and she was, therefore, a trustee to preserve the estate for the rest.
In relation to the claim of William Kinsler under the McFie judgment, there is much confusion as to the parties against whom it is supposed to have been obtained. From the report of the Referee it would seem that the plaintiffs in it were the administrators of McFie, aud the defendants, Daniel Kinsler, J. J. Kinsler and William Kinsler, the two latter sureties.
William Kinsler, in his testimony, says that the debt was a bond for §5,000; that it was put in suit, and before judgment he paid §2,500 and the accrued interest in cash; that the judgment was against him and J. J. Kinsler; that he also paid the last §2,500 on his bond with Frost and Shuler, which he had given when he made the cash payment. The argument of the counsel, in support of the equity of William Kinsler to be subrogated to the rights of the plaintiffs in the McFie judgment, treats it as one against William and J. J, Kinsler. We have, therefore, to consider the claim as under a judgment against them.
If we felt at liberty to look behind the certificate of the Clerk of the Court of Common Pleas, which contains an abstract of a judgment of administrators of McFie vs. William and J. J. Kinsler, Fall Term, 1848, $2,500, interest from 1st of January, 1849, date
In the first place, the copy of the return of Mr. Bryce, the administrator of McFie, made to the Ordinary in 1849, introduced by William Kinsler, shows not only the full payment of the bond, on July 1, 1848, on which the judgment is averred to have been 'founded, but contains the items of the settlement. William Kins-ler paid the first §2,500 in cash, and yet the return, which, in fact, is equivalent to a receipt and discharge to the obligees, shews that the cash paid was only $1,608, the balance óf the principal and interest having been paid and settled in Hamburg Bank stock, the bond of William Kinsler, Frost and Shuler, and the note of J. J. Kinsler, endorsed by Frost. If the debt was then admitted by the plaintiffs to have been paid, how, or why, did the defendants allow the suit to proceed to judgment? There was no evidence of any stipulation, at the request of William Kinsler, that, notwithstanding the full settlement of it, Bryce should still pursue it to judgment, not only against J. J. Kinsler, but against himself. If the purpose of the latter was, through the plaintiffs in the action, to get the benefit of a lien on the property of J. J. Kinsler, the object could have been accomplished through a judgment against him alone. The bond to McFie must have been joint, or joint and several. How, then, could one judgment have been obtained on it only against two of the three obligees ? The amount of the judgment, as claimed, seems to be inexplicable, when tested by the course of the Common Picas, either in regard to verdicts or assessments. If the debt was $2,500, and the judgment obtained at October Term, 1848, why was it that it carried interest only from the following January 7
Giving, however, full effect to the abstract certified to by the Clerk, as shewing the existence of such a judgment, we cannot, in the face of the circumstances in .proof, hold it as still unsa'isfied against the said J. J. Kinsler. Full twenty years had elapsed from its rendition before the said William Kinsler took any step for its collection, and, although the stay law may bave been regarded as operative for five years of that period, yet, conceding this supposed' suspension, together with the fact of war, and the general distress which followed as a consequence, we think the lapse of fifteen years, with the attendant circumstances, raise a presumption of the fact of payment too strong to be resisted.
It is averred, however, by Wm. Kinsler, to have been executed to protect him against a liability as surety on the McFie debt, and yet it is in the penal sum of 88,000 to secure $4,000. If the mortgage was for the alleged purpose, why was it given only for $4,000, when the whole liability was for $5,000; and if only given as indemnity against his co-surety, then why was it taken for $4,000 instead of $2,500, one-half of the whole debt ? If the judgment was unsatisfied at the death of the testator, being the oldest against him, and binding the whole of his real and personal estate, why did he not seek the collection of his debt through the source by which the full amount of his debt could have been realized, instead of resorting to the mortgage, which only had a specific lien? J. J. Kinsler owned, at his death, besides personal property, real estate of large value, which ,brougbt, at public sale, under this cause, (excluding the mortgaged tract,) $54,111.16. The mortgaged piece was bid off for $2,403.35. Can a conceivable reason be suggested why the creditor, having a general and a specific lien for the same debt, refrained from availing himself of that process through which full payment was the most likely to be obtained ?
It is not usual for a mortgagee of real estate to enter into possession, and yet here he not only entered, but retained possession for nineteen years. At the death of the testator, his real estate must have largely exceeded in value the price at which it was sold in 1868 and ’69, for it' is in proof that, besides his land in Lexington County, it consisted of at least twenty parcels in the city of Columbia, on the most, if not all, of which, the buildings were destroyed on the invasion of the Federal army in February, 1865. How long he had owned the various city lots does-not appear, but it certainly is not improbable that a man of such large possessions could, at any time, for years before his death; have met the comparatively small
We have no reason to doubt that William Kinsler testified according to the best of his belief. Human memory, however, is fallible, and it is not strange that the account which he gives of the several transactions, some of them dating back to twenty years, does - not produce conviction, when it is opposed by facts and circumstances so strong that they must lead to a different conclusion.
We have not had the benefit of the views which the special Judge took of the claim under the judgment, but as he overruled so much of the report of the Referee as related to it, we are to presume that he differed from him in his conclusion of the presumption of payment on the proof made.
We concur with the Referee in the conviction that at the death of the testator, no such judgment existed against him open and unsatisfied.
The claim remaining to be considered 'is that of James B. Gibson, who was employed by the executors on the 13th of July, 1866, to act as watchman over the real estate, to prevent the cutting of wood by trespassers, and the taking and carrying away of the bricks of the buildings which had been destroyed. It will be remembered that this was no demand against the testator at his death, and the fund to be administered by .the Court consists of the proceeds of his real estate, against all of which liens then existed.
In Rutledge vs. Hazlehurst, 1 McC. Eq., 467, it was held that legal assets must be distributed under the Act of 1789, (5 Stat., Ill,) after satisfying all liens existing at the death of the debtor. (See also Keckley vs. Keckley, 2 Hill Ch., 256.) Although, under the said Act, debts due to the public are to bo paid next in order to funeral expenses, yet it was held in Commissioners of Public Accounts vs. Greenwood et al., 1 Dess., 450, that the State had no prerogative to be paid out of the effects of the debtor in preference to any of the citizens who have judgments, mortgages, or other liens.
The opinion of the Court of Appeals in Haynsworth vs. Frierson, 11 Rich., 478, recognizes the principles involved in the prior decisions, which limit the order for the payment of debts as directed by the Act to such assets as remain after satisfaction of liens existing at the death of the testator or intestate. Here the debt was contracted by the executor, and the fund which is derived from property bound by judgments and a mortgage cannot be dimin
It is ordered and adjudged that so much of the Circuit decree as relates to the claim of the said Gibson, and to the • ferry and its rights and incidents, be affirmed, and so much thereof as relates to the judgment of the administrators of McFie, claimed by William Kinder, be reversed. It is also ordered that the case be remanded to the Circuit Court,-that the proper orders may be taken to carry out the directions of this Court as expressed in its opinion.