45 S.C. 61 | S.C. | 1895
The opinion of the Court was delivered by
On the 2d day of October, 1883, Moses M. Jones died intestate, being seized and possessed of the real estate which is the subject of this action, leaving as his heirs at law his widow and children. On the 11th of November, 1884, the widow, Margaret Jones, commenced an action against the other heirs for partition of said land, under which it seems that the creditors of Moses M. Jones were called in to establish their demands, and the two plaintiffs mentioned in the title of this case as creditors, some time in the year 1885, established their claims. While this action for partition was pending, the widow, Margaret Jones, filed her application for homestead, under which the said land was assigned to her as homestead, and duly confirmed by an order of the Court, dated 26th September, 1885, and the action for partition was discontinued. The widow, Margaret Jones, on the 17th of June, 1887, executed a mortgage on the said land to the Peoples’ Bank, and under proceedings to foreclose said mortgage, the land was sold and bought by Prank Hammond, who, on the 29th of September, 1889, sold and conveyed the same to W. W. Blalock.. Some time after the year 1891, the said W. W. Blalock died intestate, leaving as his heirs at law his widow, the defendant, Corrie M. Blalock, his father, the defendant, Robert W. Blalock, and his brother, the defendant, T. F. Blalock. After the death of the said W. W. Blalock, his widow, the defendant, Corrie M. Blalock, had the said land assigned and set off to her as a homestead, and she has ever since been in the possession thereof. In the meantime, to wit: on the 14th of July, 1889, the widow, Margaret Jones, departed this life intestate; and on the 8th of January, 1894, the present action was commenced by the heirs of Moses M. Jones and, also, of Margaret Jones, for the recovery of said land, and for partition of the same according to their respective interests; to
The case was referred to a referee, who made his report, ascertaining the facts, and the same came before his Honor, Judge Watts, who rendered a decree, holding that the widow, Margaret Jones, took an undivided one-third interest in the land in fee, which passed to those claiming under the sale for foreclosure, and that the other two-thirds were subject to partition amongst the children of Moses M. Jones, discharged from his debts. He, therefore, rendered judgment, that the land be sold, and that the proceeds of such sale, after paying the costs and expenses of this case, and any lien for taxes, be applied as follows: First, to the amount ascertained by the report of the referee to have been paid by the defendant, Corrie M. Blalock, for taxes on the land. Second, one-third of the balance to the said Corrie M. Blalock. Third, the remaining two-thirds to the children and grand-children of said Moses M. Jones, according to their respective interests.
From this judgment both the heirs at law and the creditors appeal upon the several grounds set out in the record. By these grounds, the heirs at law impute error in the Circuit Judge in holding that the widow, Margaret Jones, took an undivided third interest in fee, and, on the contrary, contend that she took only a life estate, and that upon her death the land was subject to partition amongst the heirs at law of Moses M. Jones, according to their respective interests, while the creditors contend that they were entitled to have their debt paid before any partition could be made.
It may not be amiss to add that while the claims of these appellants are spoken of in the “Case” as “judgments,” yet we think they are improperly so designated, for it does not appear that any report on claims was ever made; and until such report was made and confirmed, we do not see how they could acquire any of the attributes of judgment.
The judgment of this Court is, that the judgment of the ■Circuit Court be affirmed.