43 S.C. 246 | S.C. | 1895
The opinion of the court was delivered by
Joseph J. Rowland departed this life in July, 1862 or 1863, leaving of force his last will and testament, wherein he devised a tract of land to his widow, Elizabeth L. Rowland, for and during her life, and at her death to his three children, Robert E., Ludy T., and Sarah E. Rowland, in equal portions. The testator nominated his son, Robert E. Rowland, the executor of said will, and further nominated his widow, Elizabeth L. Rowland, to be the executrix of this will during the minority of the said Robert E. Rowland. Elizabeth L. Rowland, early in the year 1863, qualified as such executrix durante minore aetate of the said Robert E. Rowland. The said Robert E. Rowland, having attained full age in the year 1871, formally renounced the executorship, whereupon the said Elizabeth L. Rowland was duly appointed administratrix with the will annexed of the estate of the said Joseph J. Rowland, deceased, in that year, 1871.
The estate of Joseph J. Rowland was in debt, and in 1875 a judgment was obtained on a debt he had contracted in his lifetime, in the suit of J. S. Craig and Joseph Goodwin, as executors, as plaintiffs, against Elizabeth L. Rowland, as administratrix of the estate of Joseph J. Rowland, deceased, in the Court of Common Pleas for Laurens County, in this State, for $1,040, debt and interest, and $140, costs. This judgment was duly assigned, in 1876, to one R. N. S. Young, and a payment of $154.53 was duly made thereon on the 22d December, 1876, The only land belonging to the estate of the said Joseph J.
On the 25th July, 1892, Elizabeth L. Rowland, the life tenant, and Robert E. Rowland and Ludy T. Rowland, two of the remaindermen under J. J. Rowland’s will, conveyed by deed their respective estates in the tract of land of 330 acres to Sarah F. Rowland. It should have been stated earlier that Sarah F. Rowland, the other remainderman under J. J. Rowland’s will, departed this life in 1883 or 1884, leaving as her heirs at law, her husband, William L. Shockley, and four children, Mary Etta, who has intermarried with one Watts, William G. Shockley, Arthur Shockley, and Lillian Shockley. The said Sarah F. Rowland conveyed by deed the one-half of her interest in the tract of land to W. H. Martin on 7th January, 1893.
On the 10th day of January, 1893, Sarah F. Rowland began her action for partition of this tract of land, and made defendants to her action, William L. Shockley, Mary Etta Watts, William G. Shockley, Arthur Shockley, Lillian Shockley, and
The action came on for trial before his honor, Judge Wither-spoon, a jury having been waived. He heard testimouy, and thereafter, on 30th December, 1893, filed his decree. This entire decree must be reported. Its effect was against the plaintiff, but on one point he was not satisfied to pass, namely, as to the character of the possession of the land by Elizabeth L. Rowland or any of the other devisees under the will of Joseph J. Rowland, at the time that the judgments were originally obtained against Elizabeth L. Rowland as administratrix, under which the land was sold by the sheriff, and he accordingly referred it to J. H. Wharton, Esq., as clerk, to take testimony and report as to who was in possession of said land on 2d October, 1875, when the judgment was originally obtained, as well as at the date of the sale in November, 1891; also as to the character of said possession, whether held by Mrs. Rowland as executrix, administratrix, or as devisee, and whether such possession was actual and exclusive. Testimony was taken upon these questions. A hearing thereof was had before Judge Fraser. He decided that Elizabeth L. Rowland being the administratrix with will annexed of the testator when the judg
Having passed upon the exceptions to the decree of Judge Fraser, and having ascertained there were no errors therein, it remains to consider the objections to the decree of Judge Witherspoon. The fourth exception, which complains that Judge Witherspoon “erred in holding that any entry after the alleged revival of said judgment was ever made in the abstract of judgments in the office of the clerk of the Court of Common Pleas for Laurens County,” upon an examination of the decree itself, will be found to be untenable, for the reason that Judge Witherspoon did not so hold. Hence this exception is untenable. And the fifth exception is likewise founded in error as to what Judge Witherspoon held touching the jurisdiction or power of Judge Kershaw in granting the judgment of revival. This exception, therefore, is overruled.
When Joseph J. Rowland died, in 1862, his property, real and personal, was liable to the payment of his debts, and this was true, notwithstanding he left a will and attempted to devise his lands. His wife, Elizabeth L. Rowland, by her own act, became his personal representative, and so continues until to-day — first, as executrix durante minore aetate of Robert E. Rowland up to 1871; second, from 1871 up to the present time as administratrix cum testamento annexo. By law, it was made her duty to pay testator’s debts, if his estate was sufficient therefor. In 1875, not having paid the debts of J. J. Rowland, two creditors sued her, as administratrix, to judgment. These judgments were duly enrolled, and executions were issued thereupon. She paid $154.53 on these judgments, 22d December, 1876. By law, these judgments became liens upon Joseph J. Rowland’s real property for ten years from 1875, with leave at any time during the three years immediately ensuing the year 1885, to wit: until 1888, to renew such judgments for like period of ten years, with their liens upon the property of J. J. Rowland. See section 310 of Code of 1882.
Now the plaintiffs, in such judgments, having waited until after 1888, to wit: until 1891, before they applied to the court to renew such judgments, the children, or their grantees, of. Joseph J. Rowland, say that it was not in the power of the Circuit Court to revive such judgments after the year 1888. It is well to notice that the powers by which judgments are renewed, as provided for under section S10 of our Code of Civil Procedure [of 1882], was by the service of a summons on the debtor, as provided by law, requiring him to show cause, if any he can, at the next term of the court for his county, why such judgment should not be revived.” Then it is manifest that if the plaintiffs in execution had, at any time between 1885 and 1888, applied to the court, in accordance with section
Theservice of this summons and complaint was duly accepted by Mrs. Rowland on 1st July, 1891. Not having answered on demand to such action, nor caused any notice of appearance to be served within twenty days after such acceptance of service of the summons and complaint, Judge Kershaw made an order on the 23d July, 1891, reviving said former judgment. From this order of revival no appeal was taken. Under such order of revival execution was issued and levied upon the lands in question, and sold by the sheriff to the defendant, John H. Young. Can it be said that the Court of Common Pleas for Laurens County, in this State, was without power to render this judgment? It had the jurisdiction of the subject-matter, for the original judgment was not twenty years old, and had been rendered in an action in the county where testator died, and where his personal representatives lived, and the basis of this action was a contract of a person dying testate there. It had jurisdiction of the person of the defendant; she was the personal representative of one who died testate, in Laurens County,
It is the judgment of this court, that the judgments of the Circuit Court, appealed from, be affirmed.