41 S.C. 105 | S.C. | 1894
The opinion of the court was delivered by
This case has been in this court before (see 36 S. 0., 285), where the facts will be found stated. In this case the Oircuit Judge summarised them as follows: “On November 12, 1870, all the heirs at law of Neil Alford, who died intestate, filed in the Probate Court of said county
“In September, 1889, the plaintiff instituted this proceeding in the Court of Common Pleas for said county, against the defendants, to enforce the payment of said amount assessed to her, with interest on the same from the date of the said return, which had been confirmed on the day of its date by the said probate judge. A demurrer was interposed, that the complaint did not state facts sufficient to constitute a cause of action, which was sustained by the Circuit Judge, but on appeal to the Supreme Court, the. opinion of the Circuit Judge was reversed; and the case went back with leave to answer; and the case now comes up again on the pleadings and evidence. The defendants insist that, six years having elapsed, the action was barred by the statute of limitations, or paid by presumption of law from lapse of time; and that the Court of Common Pleas has no jurisdiction to enforce the decree of the Probate Court, but if it is enforcible at all, it must be done in that court. In the evidence it appeared that at onetime John D. Alford gave his note to the plaintiff for the amount of the assessment, and it was insisted by the defendants that the note extinguished the assessment.”
The judge overruled all the defences, and gave judgment for the assessment and interest, and if the amount was not paid in sixty days, the land should be sold to pay the debt, interest,
But it may be said, that since that time the acts of 1872 (15 Stat., 23,) and of 1878 (16 Stat., 710,) have been passed, enlarging the powers of the judge of probate as to enforcing his own orders and judgments. But if a power sufficient to cover a case like this were given in those acts, we do not see how they could be made to reach back and apply to cases where judgment had been obtained (1870) before the passage of those acts. See Copeland v. Todd, 30 S. C., 419. If we consider the law as it now stands, it seems to us that the result would be the same. While the case of Herndon v. Moore, 18 S. C., 339, does declare that all proceedings in partition regularly had in the Probate Court prior to 1878, should be held binding on the parties concerned; yet, as we suppose, that does not give the right in such cases to proceed in the Probate Court after 1878; and, therefore, if the plaintiff can not enforce her equitable rights in the Court of Common Pleas, she is entirely without remedy.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.