40 S.C. 69 | S.C. | 1893
The opinion of the court was delivered by
The parties in this case are very numerous, and the facts somewhat complicated, so that it will promote clearness to make a short preliminary statement.
Many years ago, one James Elkin, of Fairfield County, died, leaving a will, by which, among other things, he devised a certain tract of land, containing 181 acres, to his son, William B. Elkin, on the express condition, that in case he should die without heirs of his body, the said land should be divided between his daughters, Mary Ann Elkin and Judy M. Ruff, and to their issue or children, forever, &c. The life-tenant went into possession, and, some time before 1858, some proceeding was instituted in the old Court of Equity to sell the land and change the investment; and Chancellor Dargan granted a decretal order, that the land should be sold upon a credit (except as to costs) for one, two, three, four, and five years; the purchaser “to give bond and good personal security and a mortgage of the premises to secure the purchase money.” One Henry W. Parr became the purchaser, and complied with the terms
Matters seem to have remained in this condition during the war, and down to 1876, when the mortgagor, Parr, died intestate, possessed of some personalty and several tracts of land, and leaving as his only heir and distributee an infant son, Henry L. Parr, then under seven years of age, who is the party named in this cáse as the defendant. Soon after the death of Parr, the father, William B. Elkin, the life tenant, obtained letters of administration upon the estate of Henry W. Parr, and on May 26, 1877, a suit on the equity side of the court was commenced in the name of Samuel B. Clowney, as clerk of the court (who had succeeded to the rights of Robertson as commissioner in equity), against Henry L. Parr, the infant son of the mortgagor, Henry W'. Parr, deceased, to foreclose the two mortgages above described — both that of the Elkin land to Robertson as commissioner, and that of the Montgomery land to Coleman as surety. The legal proceedings in this case, seeming to be regular on their face, and neither W. B. Elkin, as administrator, nor the guardian ad litem, of the infant Parr, making any objection, proceeded to judgment; but as to their legality, force, and effect, we will have occasion to consider hereafter. (1.) Theorderof sale under this judgment of Judge Mackey, May 9, 1877, included only the original Elkin land under the mortgage to the commissioner, which the sheriff reported that he sold to one Murphy for $726, and the same was confirmed by the court. (2.) On October 29, 1877, Judge Kershaw passed an order, purporting to amend the original
In April, 1890, W. B. Elkin died without issue, and thus the event, upon which the remainders over in the original devise were to take effect, had occurred. At that time the two persons, viz: Mary A. Elkin and Judy W. Ruff, who were named as the first takers in remainder, were dead, but leaving numerous children and grand-children, who together were about to institute proceedings to partition among themselves the Montgomery tract of land, in the view that, by sale under the foreclosure decree in the case of Samuel B. Clowney, as clerk of the court, os. Henry L. Parr and W. B. Elkin, as administrator of Henry W. Parr, deceased, said tract of land had been substituted for that devised in the Elkin will. At the same time Henry L. Parr, having attained his majority, and claiming that the sale in foreclosure, under which that tract purported to have been sold, was irregular, illegal, and absolutely void as to him, was about to institute proceedings for the establishment of his rights thereto. Under these circumstances, and in order to facilitate the effort to ascertain the rights of the different parties, they mutually entered into the following agreement: “Whereas the children of Judith W. Ruff and of Mary A. Elkin claim the said (Montgomery) tract of land, and are now instituting proceedings to partition the same among themselves; and whereas the said Henry L. Parr is in the possession of the said tract of land, claiming to be the owner thereof in fee, and is about to institute proceedings for the establishment of his rights thereto; and whereas it will facilitate matters to have all issues settled in one action', it is agreed: 1. That the said Henry L. Parr shall be joined as a party defendant in the action for partition among the children of Judith W. Ruff and Mary
In pursuance of this agreement, the Circuit Judge submitted to the jury the following issue: “Is Henry L. Parr the owner in fee of the land described in the complaint
Notice of the application for the appointment of a guardian ad litem for the infant defendant, Henry L. Parr, was also served on the said William B. Elkin at the same time and place. The plaintiffs then rested.
Then Henry L. Parr (over objections) offered testimony im
The attorney of Parr made eleven requests to charge, which are long, and all being printed in the Brief, need not be restated here. Among other things, the judge charged: “Now, you have in this case the return of the deputy sheriff, in which he states that he served the summons and complaint in this action on the defendant by delivering to them personally, and leaving with them, copies of the same at Alston on March 29,1877, and that he knows the persons so served to be the ones mentioned and described in the summons and complaint as Henry L. Parr and William B. Elkin. That is, a paper, a written instrument. It is my duty to construe that paper. There is nothing hidden about that paper. It is a plain outspoken affidavit, that he served Henry L. Parr personally, and upon its face it is regular. That being the law, and it being my duty to instruct you, I charge you, that that service was according to law, and that Henry L. Parr was personally served. But it would be manifestly unjust if a sheriff or deputy sheriff could, by making a false return, bind a party (in this case Henry L. Parr), when, as a matter of fact, he never served him personally. Therefore, the law is, that while that affidavit on the record, coming as it does from an officer of the court, nothing else appearing, is presumed to be correct, yet, when it is attacked, it may be shown to be incorrect or false. In this case they have undertaken to attack that affidavit of Martin. Now, I can’t charge you as to what the facts were. You have heard the testimony of Mr. Parr, in which he states as to the failure to serve the summons and complaint on him ; you have heard the testimony of Mr. Martin in regard to what he did — what he now says
Under this charge, the jury found affirmatively that Henry L. Parr was the owner in fee simple of the Montgomery tract of land. Thereupon the other parties moved for a new trial on the minutes of the court, w'hich was refused; and they then moved that his honor would “proceed to adjust the equities of the parties;” and this, also, being refused, the judge delivered his decree, affirming the verdict of the jury, and dismissing the complaint as against Henry L. Parr, with leave to plaintiffs to apply to the court for such action as they may deem proper, and the law will permit, to revive the action against W. B. Elkin, as administrator.
From this final judgment the appeal comes to this court upon the following exceptions:
(1.) That his honor erred in allowing B. F. Martin, deputy sheriff, to testify in contradiction to his affidavit of service of summons and complaint in Clowney, clerk, vs. Henry L. Parr and W. B. Elkin.
(2.) That his honor erred in allowing Martin, deputy sheriff, to testify as to his recollections and impressions as to the service of the summons and complaint in Clowney, clerk, vs. Parr and Elkin, in contradiction of his affidavit endorsed on said summons.
(3.) That his honor erred in charging that there must have been a manual delivery of the summons in the case of Clowney, clerk, vs. Parr and Elkin.
(5.) That his honor erred in charging the jury upon the question of chilling the biddings at the sale under the judgment aforesaid, when there was no evidence in the case to warrant the charge.
(6.) That his honor erred in charging the jury as to fraud on the part of the Ruffs and Elkins being parties to this action, in procuring the judgment in the aforesaid case of Clowney, clerk, vs. Parr and Elkins, administrator, when there was no testimony showing that they were parties to said action.
(7.) That his honor erred in charging the jury upon the general question of fraud in, and payment of, the judgment of Clowney, as clerk, vs. Parr and Elkin, as there was no evidence to warrant such a charge.
(8.) That his honor erred in holding that it was necessary to have a legal representative of the estate of Henry W. Parr before the court before he could adjudicate the equities between the parties, when it appeared from the undisputed testimony that a legal and valid judgment had already been obtained and entered against the estate of Henry' W. Parr, deceased, in the case of Clowney, clerk, vs. Henry L. Parr and William B. Elkin, as administrator.
(9.) That his honor erred in holding that the order of Judge Kershaw, amending the aforesaid judgment of Clowney', clerk, &c., was without force and effect.
(10.) That his honor erred in holding on the equity side of the court, that the complaint should be dismissed, &c.
The Montgomery tract of land was the property of Henry' W. Parr, the father, and never passed under the will of James Elkin; and, therefore, the devisees under that will have no interest therein, unless it was transferred to them by the force and effect of the sale made under the proceedings in the case of Clowney, clerk, vs. Henry L. Parr and William B. Elkin, administrator. It is, therefore, manifest that the main question in the case is, whether that judgment and the sale under it were binding upon Henry L. Parr, or illegal and void as to him. It is insisted that the said proceedings were and are ab
The judgment of this court is, that the judgment of the Circuit Court be affirmed.