15 S.C. 241 | S.C. | 1881
The opinion of the court was delivered by
These cases were heard together on the Circuit and in this court. The facts will be found in the report of the referee, as modified by a statement of “ facts additional ” thereto, as agreed on by counsel and forming a part of the “ease” before the court, and the testimony of W. W. Humphries, J. N. Brown, B. F. Crayton and Andrew O. Norris also in the “ case.”
It will not be necessary to re-state the facts, except so far' as they explain the judgment of this court.
Andrew O. Norris, now deceased, was commissioner in equity for Anderson District for three successive terms of four years each, and entered into bond, with sureties for each term, for the faithful discharge of his duties.
1. The first bond was dated December 3d, 1853, with sureties James W. Harrison, Elijah Webb, J. E. Norris, Jesse W. Norris and E. S. Norris.
2. The second bond was dated December 3d, 1857, with sureties J. W. Harrison, Jesse W. Norris, J. E. Norris, Benjamin F. Sloan and Charles L. Gaillard.
The third and last term ended about January 3d, 1866, when Andrew O. Norris was succeeded in office by W. W. Humphries.'
Andrew O. Norris, the commissioner, and all the sureties on these bonds died before the commencement of these actions, except J. W. Harrison and James C. Keys, who are insolvent,' and have not been served with process.
The personal representatives, as well as the devisees, legatees, heirs and distributees of Andrew O. Norris and his sureties, who have died, have all been made parties to these proceedings.
These actions have been brought on these bonds in the name of the State of South Carolina, ex relatione Lydia A. Van Wyck $nd others, heirs-at-law of Samuel Maverick, deceased, on behalf of themselves and others, creditors of Andrew O. Norris, deceased) individually, and as commissioner in equity. The actions, in effect, are proceedings to marshal the assets of the estates of Andrew O. Norris and his deceased sureties on his official bonds, and for general relief.
Ida L. Featherstone, who had commenced an action on her own account on these bonds, was enjoined, but was afterwards permitted to proceed with an independent action.
All the issues of law and fact were referred to W. H. Parker, as special referee, and he was directed to call in, by publication, all the creditors of Andrew O. Norris, and to take an account of the administration of his estate, and, also, of the administration of the estates of the deceased sureties. The referee was also directed to take an account 'of the money received by Andrew O. Norris, as commissioner in equity, from sales made by him of the real estates of Samuel Maverick, and also of all moneys received by him as commissioner for others, and not accounted for.
The referee published the notice calling in creditors. Various claims against Andrew O. Norris, as commissioner, were presented, and some claims against him individually. The referee submitted his report, which, with some slight modifications, was confirmed by the Circuit judge.
As to several claims presented there has been no appeal. Only
1. The claim of the representatives of Samuel Maverick, deceased.
2. The claim of the representatives of Noel E. Strickland, deceased.
3. The claim of the representatives of P. S. Johnston, deceased.
There are claims against Andrew O. Norris, as commissioner in equity, for moneys received by him and not paid out, and for other defaults, as will hereafter appear.
The aggregate of the commissioner’s balances for all estates in the office, as appears from his report in 1866, was the sum of.. $90,695 65
Deducting investments. 12,420 63
$78,275 02
Deposited in bank, as appears by bank-book. 63,913 00
Leaving unaccounted for . $14,362 02
The report to June Term, 1866, states that the above sum of $12,420 was invested for several estates named in Confederate bonds, Confederate money and individual notes, and that the above sum of $63,913 was deposited in the branch of the Bank of the State of South Carolina, at Columbia, and was in full of all the balances on all other estates.
It does not appear from the report of the referee what items made up the $14,362.02, the amount unaccounted for.
The total amount of claims against the commissioner is stated in the report of the referee to be $34,980.35. It does not appear exactly how this sum is made up, but it is conceded that the total amount of the claims presented is far less than the amount deposited in bank. The deposit in bank does not profess to cover-items of cash received and not charged against the commissioner in his 'account, or items claimed to have been paid out, and for which no proper receipt has been shown; or money collected after the date of the deposit in bank, or bonds not collected and not turned over to his successor by the commissioner.
These deposits in bank were made between October, 1863, and
The deposit was made by Andrew O. Norris in his official capacity as “ A. O. Norris, Commissioner in Equity, Anderson District,” in a genuine “ bank-book of the Branch Bank of the ■state,” and in the handwriting of the proper officer of the bank. This bank-book was turned over by Andrew O. Norris on or about January 3d, 1866, to W. W. Humphries, his successor in office, with an order for the payment of the money.
The fact that there is a large amount, $14,362.02, which has been received by the commissioner and not now accounted for, and the fact that there has been deposited in bank a much larger sum than is claimed by the parties now before the court, amounting to $28,932.02, cannot affect the rights of the parties now before the court. It will be time enough to consider these facts when other parties come forward who can show an interest in these amounts.
The claims now under consideration and above referred to, are:
I.The Maverick estate, consisting of—
1. Money collected and included in bank deposit, $25,760.30.
2. Money received on bonds and not charged in the account, $1683.75.
3. Amounts claimed by the commissioner in his account to have been paid out and the receipt not signed, $2512.50.
4. Balances due on bonds of J. C. Kennedy and Thomas M. Howard, not turned over to successor.
The bond of J. C. Kennedy has not been turned over, but the mortgage remains unsatisfied. The bond of Thomas M. Howard, in some way not explained, appears to have been assigned by the commissioner in equity for Greenville District, to Samuel M. Green and Laura It. H. Green, his wife, in part payment of the share of the latter in the estate of William Turpin, and to have been finally satisfied in April, 1867.
At the June Term, 1853, there was an order to pay oyer this whole fund to Noel F. Strickland, and before payment he died. Administration on his estate was granted by the Ordinary to A. T. Broyles, but as the fund in court was the proceeds of the sale of real estate, an order was made June 26th, 1854, to pay over the whole fund to A. T. Broyles for the payment of debts on his entering into bond to the commissioner, with good security, in double the amount of the fund.
There is no record of such a bond in the commissioner’s office, and if such bond has ever been given it cannot be found, and there is no evidence to show that, in fact, such a bond was given.
On February 16th, 1855, the commissioner paid to A. T. Broyles, out of this fund, which was originally $700, the s.um of $184.25, leaving in his hands the above balance of $515.75,, which has been reported as on hand annually from 1856 to 1866, This sum is reported in 1864 and 1866 as included in the deposit in bank.
This claim is presented by a petition filed by A. T. Broyles who had been appointed administrator of Noel F. Strickland, on behalf of the widow and children. There is no evidence that they or any of them are living, and, if living, they are non-residents. They were parties to the petition to pay over the fund to A. T. Broyles for the payment of debts of Noel F. Strickland. The children were all under twelve years of age March 25th, 1854, when that petition was filed.
III. Estate of P. S. Johnston.
The appeal in this case is on behalf of the representatives of Andrew O. Norris and his sureties.
This claim is as follows: Amount reported as on hand at the June Term, 1864, and at June Term, 1866, as deposited in bank, $7103.47.
Among the property sold by the commissioner and belonging to this estate was a slave, who was bid off by J. W. Harrison for $1320 on March 3d, 1863, and for which amount he gave his bond in three installments, payable December 18th, 1863,
On March 3d, 1863, he credited the bond and charged himself with $538.25.
On December 18th, 1863, he credited the bond and charged himself with $304.05.
On August 6th, 1864, he credited the bond and charged himself with $544.26.
The report of the referee charges the estates of the commissioner and his sureties with the sum of $208.25 as the excess of the credit over what was due December 18th, 1863, with interest, and also with the sum of $544.26, the amount of last installment, credited before it was due, with the interest, and not deposited in bank — the first amount to be scaled at $1.90 to $1, and the second at $8.05 to $1.
The referee also charges the estates of the commissioner and his sureties with the sum of $628'.46, received May 30th, 1864, ■on the bond of Mrs. Johnston, the widow, and paid out to her on the same day with other money, and her. receipt taken therefor. Interest is also charged on this sum, and it is scaled at the rate of $9.47 to $1. The order under which the sale to J. W. Harrison was made, was dated February 13th, 1863, and the sale was made on March 2d, 1863.
These claims come under one or more of the following classes :
1. Money collected by the commissioner at various times during his three terms of office, and from time to time deposited n bank, and finally included in the deposit in the branch of the Bank of the State of South Carolina, at Columbia, as shown by he bank-book above referred to.
2. Money collected by the commissioner at various times during his three terms of office, and omitted in his account and unaccounted for.
3. Money collected on bonds charged in the commissioner’s accounts as received and paid out, but the receipts for which have not been signed by the parties, and as to which payments there is no other evidence.
5. Bonds collected in confederate money before due and deposited in bank.
6. Bonds collected in Confederate money before due and not deposited in bank.
The defences set up are—
I. The deposit in bank.
II. The statute of limitations.
To the plea of the statute it is replied that, if allowed at all, it cannot be applied to the claims of some of the parties- who are under disability of minority. The facts in reference to the minority of some of the parties will be stated hereafter, in referring to the different estates involved.
I. As to the first defence — the deposit in bank — it is .unnecessary to do more than to say that this court has held that a bankbook of the branch of the Bank of the State of South Carolina, regular in form, in the handwriting of- the proper officer of the bank, containing an account with “A. O. Norris, Commissioner in Equity, Anderson District,” showing a sum of money on deposit more than sufficient to cover the balance against the commissioner, must be assumed to show a due discharge of. official duty until the contrary appears. Featherston v. Norris, 7 S. C. 484; Same case, 14 S. C. 624. The estates under consideration were specially named in the reports of 1864 and 1866, and the latter report claims that all the balances are covered by this deposit. The fact that there is a large balance unaccounted for cannot affect this case, because it must be assumed, for the purposes of this case, that those who have not brought forward their claims have been satisfied, and that there is, in fact, no such outstanding unpaid balance against the commissioner.
The amount deposited is $63,913, and the total of claims presented is $34,980.35, showing a balance “ more than sufficient ” to cover the claims of these estates, and all others brought into this case.
Neither does it impair the value of this deposit if it be admitted, as contended in the argument of these cases, that Confed
It is true that this money was not deposited within one month after the time for the adjournment of the Court of Equity for 1862 and 1863. Under some circumstances it might be important to inquire whether the commissioner was bound to deposit the money until the court had been actually held and had adjourned, so as to have the funds in his hands subject at once to the order of the court. The money was, however, deposited before the June Term, 1864, and was reported as being in bank. The commissioner might have made himself liable for a premature deposit if the bank had failed in the meantime. No good reason, however, appears why a deposit previously made and permitted to remain when the proper time arrived, is not, in all respects, just as good as if then made. All that would have been necessary would have been to make a new entry in the bankbook with a new date. So far as appears to the court the bank was then a safe depository of public and private funds, and only went down in the ruin which subsequently overtook public and private fortunes at the south.
II. As to the plea of the statute of limitations. A preliminary question has been made that the statute is pleaded “hypotheti-callyand cannot, therefore, avail. It is in this form : “ If any cause of action existed, it did not accrue within,” &c.
A hypothetical denial is allowable only when the facts are not presumptively within the knowledge of the defendant, (2 Wait’s Pr. 422), as in this case, where all the original parties are dead. A defence, however, may be thus pleaded “when a plain and direct statement cannot be given, and when this form is used from necessity:and in good faith.” An answer may deny that “ a ditch was dug,” and then say that if dug, it was sufficiently guarded, &c. 2 Wait’s Pr. 309.
But if the mode of pleading is objectionable, the proper remedy is “ a motion to strike out as irrelevant,” &c. Id. There is no
We will then proceed to consider the plea of the statute of limitations as applicable to these claims. “ A statute of limitation,” says Mr. Justice Story, “ instead of being viewed in an unfavorable light as an unjust or discreditable defence, should have received such support from courts of justice as would have made it what it was intended emphatically to be — a statute of repose.” It supplies the defects of human memory, the loss of papers, and of witnesses who have removed beyond the jurisdiction of the court or who have died, and promotes promptness and punctuality in all business transactions.
The law is too well settled to make any reference to authority necessary, that when a trustee does an act which purports to be a termination of his trust, it gives currency to the statute from the time of such an act. This act may be simply an act done in a public office, in which, by law, he must render an account of his trust. When the act purports to be a complete termination of the trust he henceforth holds adversely, and, at the end of the statutory period, all further account is barred.
Trustees are not the only persons who are entitled to the benefit of the statute, and, therefore, it is not important to determine whether the commissioner in equity was or was not a trustee. He was, however, a public officer, to whom was entrusted, by law, the collection and custody of the money of others, and the care and custody of their bonds and other property.
In Houseal v. Gibbes, Bail. Eq. 484, the court uses this language : “ The office of master of the Court of Equity is, in some respects, perfectly analogous to that of sheriff of the court of law. Both are receiving officers of their respective courts. The commissioner in equity was the receiving officer of the Court of Equity.”
In Wright v. Hamilton, 2 Bail. 51, the doctrine is recognized that the statute will commence to run in favor of a sheriff from the demand • and it is expressly held in Williams & Clinton v. Sims, 1 Rich. Eq. 53, that a claim against the sheriff will be barred after four years from demand. The sheriff was not
The plea of the statute was not allowed to prevail in Houseal v. Gibbes, because the master held the fund under an order of the court requiring him to “ improve on interest,” or “ invest in public securities.” The court says: “ Of course he cannot, in that point of view, plead the statute of limitations until be had previously divested himself of that trust by discharging it, or by denying all liability to discharge it further.”
This is the same rule which is applied in the case of trustees. The general rule is that the statute begins to run from the accrual of the cause of action, and in cases of trustees and receiving officers the right of action commences from the demand and refusal, or from the act, which is a disavowal of the trust and the assumption of an adverse position.
If there should be a demand on the commissioner for the payment of money which he should pay out, and he refuses, the right of action accrues, and the sureties for the term are liable for the breach of the bond.
In Vaughn v. Evans, 1 Hill’s Ch. 430, it is held' that “ an application for an order” to pay out or invest is such a demand. If it is such a demand as to make the sureties liable it is because it is a breach of the bond to neglect or refuse to do the duty, and the right of action accrues. From this time the statute ought to run if, as we hold, the commissioner in equity was such an officer as to be entitled to plead it.
The twenty-sixth section of the act of 1840 (11 Slat. 119), provides for a complete termination of the office of a commissioner in equity on the election and qualification of his successor, and the transfer to him of “ moneys, bonds, notes, certificates of stock, and all other choses in action or property held by ” him “ by virtue of his office.” He is authorized and required to demand from his successor a receipt for the property turned over, and he is declared to be liable for what he fails to turn over. The successor is required to give a receipt for the property turned over, if one is demanded of him, and if not required of him, it is his duty to make an “ inventory ” of such books,
The outgoing and incoming commissioners are, by this section, both made liable for a neglect of the duty prescribed in it— to a rule for a contempt, to an action on the case, and to an action on the official bond. It is difficult to conceive any more sweeping or stringent provisions for the complete transfer to a successor of all property in charge of a commissioner at the termination of his term of office. After this he cannot answer to any one except his successor, and he cannot pass over his successor and pay or turn over to parties in interest. He must turn over to his successor. Under Section 16 “ all moneys deposited in bank * * * or invested by him under any order or decree of the court in bonds, notes, stocks, or any property whatsoever, shall be transmissible to such successor in trust for parties interested.”
This court concludes, from the testimony of W. W. Hum-phries, Norris’ successor, that when Norris turned over his office on January 3d, with the bank-book above described, with an order for the payment of the money, he claimed to have turned over everything for which he was liable, as “Norris made no complaint that any of the papers-were lost or that he was unable to turn them over.”
If an order of the court can operate as a demand, certainly the provisions of Sections 16 and 26 must have that effect; and if the statute commences to run from the demand, it should commence to run from this statutory termination of the office and its duties. Parties under no disabilities had four years to investigate their rights, and there is no more reason for indulging them in long delay than others who have business relations with individuals or receiving officers of the courts.
Under the view taken by this court of these defences, we hold—
As to the Maverick estate:
The sum of $25,760.17 is sufficiently accounted for by the deposit in bank, and the sum of $2512.50, for which the receipt has not been signed, and the $1683.75, omitted items, and the bonds of
Samuel Thompson and Josephine Bryan having had guardians-in-chief, their claims are also barred by the statute. Long v. Cason, 4 Rich. Eq. 60; Massey v. Massey, 2 Hill’s Ch. 496. And they attained majority more than four years before the commencement of these actions. The rule is that when an act is done during minority, which would give currency to the statute in case of an adult, the statute commences to run as soon as the minor comes of age.
S. A. Maverick and Joseph B. Weyman were two heirs-at-law of Samuel Maverick The former died in 1866 or 1867, and the latter some time before. Each left a will. The former appointed his wife, Mary, executrix, and his son, S. A. Maverick, executor, of his will. Joseph B. Weyman bequeathed his estate to his wife, Emala.
The interests of S. A. - Maverick and Joseph B. Weyman passed under their wills to their personal representatives. There is no express authority in this state, so far as we can ascertain, that holds that the proceeds of land sold for partition is converted into personalty. It is certainly no longer subject to all the rules which govern real estate. The right of dower does not attach to it. There was no necessity that a married woman should convey it by a renunciation of her inheritance, as in case of land, before an officer. In Hood v. Archer, 2 N & McC. 149, the court uses these words in reference to such money : “By legal operation converted into money.” Where a will directs executors to sell the real estate and distribute the proceeds the land will be treated as personal property. The same rule applies to agreements for a sale for the purpose of division, and to a legislative direction for a sale. Adams’ Eq. * 136, note, and the authorities there cited.
The court holds that as to the shares of S. A. Maverick and Joseph B. Weyman, in the estate of Samuel Maverick, those Avho claim through them or under their wills are barred, by the operation of the statute, against their personal representatives.
As to the estate of Noel T. Strickland :
The whole fund was deposited in bank, and is sufficiently
As to the estate of P. S. Johnston, in which.the app'eal to this court is on behalf of the commissioner and his sureties:
The sum of $208.25, which the referee finds to have been received in excess of the first installment of the bond of J. W. Harrison, [we take the referee’s statement, though it seems too small, as it has not been appealed from by the representatives of the Johnston estate], was received before it was due, and seems not to have been necessary, as an amount equal to the debts reported to be due, had already been paid in. It was, therefore, received without authority of law. The same is true as to the $544.26, the third installment received before it was due, and not deposited in bank. The amount of $628.46, received on the bond of Mrs. Johnston, May 30th, 1864, was in a transaction in which a receipt was given by her for $1230. If the large sum in bank was, as we hold, properly there, no fault could have been found with this transaction if there had been an order to pay out the money. But there was no such order to pay out, and it was a breach of duty in the commissioner to pay the money to her, even by way of discount. As to all three of these sums we find no fault with the scale adopted by the referee and applied to them. The claims of Mrs. Johnston and of Calhoun Johnston, who came of age in 1870, are barred by the statute of limitations.
The only default which is established by the judgment in these cases is as to a small portion of the estate of P. S. Johnston-
This estate was sold by the commissioner under orders of November 11th, 1860, July 8th, 1861, November 26th, 1862. The first sale was made December, 1862, and one sale was made in 1863.
John E. Norris was not a surety on the bond of 1861, and his estate is in no way liable fo,r any default as to this estate. Benjamin F. Sloan and J. W. Norris were sureties on bond of 1861. Benjamin F. Sloan died February, 18.67, and administration on his estate was granted in 1867, in March.
The judgment of the Circuit Court is, therefore, affirmed, and the appeal dismissed.