25 S.C. 275 | S.C. | 1886
The opinion of the court was delivered by
Many years ago (1826) William Stewart, of Edgefield County, died, leaving a will, by which he gave a tract of land in said county, containing 130 acres, more or less, to his brothers and sisters, among whom was his sister Desdemona (Desdemony), who was never married, but having an illegitimate son, William Mastin Stewart. She conveyed her interest in the said land to him, and in 1873 he died intestate, leaving as his sole heir at law one child, Mary Stewart, then under thirteen years of age. The said Mary afterwards intermarried with one Tederall, and finding that the aforesaid tract of land, in which she was informed she had an interest, was in the possession of strangers, viz., the defendants, Joseph H. Bouk-night and John D. Eidson, she instituted these proceedings against them for partition of the land, and to recover her interest, whatever it might be.
The defendants, claiming the land as their own, made vigorous defence, and among other defences alleged as follows : “That in the year 1874 proceedings were filed in the Probate Court for Edge-field County by certain of the heirs (devisees) of William Stewart for the partition of the tract of land described in the complaint, and that the plaintiff herein was a party to said proceedings in the said Probate Court in the case of W. D. McCarty et al. v. Mary Stewart et al.; that under said proceedings an order for the sale of said land was made by the said Probate Court on October (November) 2, 1874; that under said order a sale was made of said land, and that at said sale it was purchased by the defendants, who paid into the Probate Court the full amount of the purchase money, and that they have been since that time the joint owners of said land ; and that plaintiff is concluded and estopped from claiming any interest in the said land by said proceedings,” &c.
The Circuit Judge held that the plaintiff, Mary, being at that time an infant, -was not properly made a party in the probate proceedings for partition, and was not bound by the judgment in that case, or the sale under it, and decreed that she was entitled to recover eleven-fortieths (11-40) of the land, and rents and profits for certain years in the same proportion. From this decree the defendants appeal upon the following grounds: 1. Because his honor erred in deciding that the plaintiff, as the sole heir at law of her father (W. Mastin Stewart), is entitled to 11-40 undivided interest in the tract of land described in the complaint, and the same proportion of the rents and profits for certain years. 2. Because his honor erred in holding that the proceedings in the Probate Court in the casé of McCarty et al. v. Mary Stewart et al. for partition of the land, which is the subject matter of this action, are not binding on the plaintiff, Mary Stewart, now Mary Tede-rall. 3. Because his honor erred in holding that the said proceedings in the Probate Court could be attacked collaterally by the plaintiff.
The Circuit Judge states that no objection below was made to “the quantum” of the plaintiff’s interest as reported by the master, and as the point Avas not pressed in argument here, we suppose that the first exception is abandoned.
There are, however, two matters as to which purchasers are required at their peril to make inquiry, viz., that the court ordering the sale had jurisdiction of the subject matter, and that all proper parties were before the court when the order was made. Trapier v. Waldo, and authorities, 16 S. C., 282. The partition proceedings in the Probate Court, under which the sale was made, were prior to November 27, 1878, when the judgment in the case of Davenport v. Caldwell was filed; and therefore it would seem that under the authority of Herndon v. Moore (18 S. C., 339), we must consider the case precisely as if the act of the legislature, which gave to the Probate Court the power to partition lands, was constitutional and valid. It follows that, so far as the rights of the parties before the court are concerned, it must be assumed that the Probate Court, which ordered the sale, had jurisdiction of the subject matter.
But it is alleged that the plaintiff, then a minor of tender years, was not properly a party before the court in the probate proceeding, and therefore the sale as to her was, and is, utterly void. It is familiar doctrine that a judgment binds only those who are parties and their privies ; but a judgment is in its character final and conclusive, and how can the allegation that a particular person was not made a party be shown? The judgment presumes it until the contrary appears. It is held that a judgment, “regular on its face,” must be taken to be an absolute verity, and is beyond the reach of contradiction or assault in a collateral man
The question, then, is whether the probate proceedings “were regular on their face,” showing that Mary Stewart was properly, made a party. This must be determined by an inspection of the record itself, which was introduced by the defendants, and in such issues is always admissible, whether the proceeding is collateral or direct. At that time Mary Stewart was an infant, as the judge found, under fourteen years of age. In such case the law is very exacting, requiring that a copy of “the summons shall be delivered to the infant personally, and also to his father, mother, guardian, &c., or if there be none within the State, then to any person in whose service he may be employed,” &c. Code, § 155, subd. 2. When an infant has been thus made a party, he can only appear by guardian ad litem,, appointed, if the infant is under fourteen years, upon the application “of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one ; if he has none, then to the infant himself, if over fourteen years, * * * or if under that age, &c., to the person with whom such infant resides,” &c. Code, § 137.
In view of these express requirements of the law. were the probate proceedings in partition “regular on their face,” showing
But upon a careful examination of the whole record, it appears upon its face that the application of Brooks to be appointed guardian ad litem, his appointment as such, his answer and consent to the partition, and the final order of the probate judge (no commission issued) directing sale of the land, were all filed on the same day, viz., November 2, 1874, and the land was actually sold on the succeeding salesday of December. Notwithstanding a strong disposition to suppovt judicial sales, we cannot resist the conclusion that these facts appearing in the record itself fully rebut any presumptions arising from the existence of the judgment, and show affirmatively that the probate partition was a mere consent proceeding on the part of Brooks, the only adult defendant, who undertook to act for his little granddaughter, Mary, and that she had in fact no notice whatever, either of the proceeding, or that he had procured himself to be appointed her guardian ad litem. It may be that it was considered unnecessary to perform what seemed to be an unmeaning ceremony
The cases in our own Reports principally relied on for the defendants were Bulow v. Witte, 3 S. C., 309; Walker v. Veno, 6 Id., 459; and McCrosky v. Parks, 13 Id., 92. It will be observed, however, that all these cases involved the question as to what was necessary to make infants parties under the old practice in chancery and the court of ordinary, which prevailed before the adoption of the code in 1870. But the case of Finley v. Robertson, 17 S. C., 435, and the late case of Riker v. Vaughan, 23 S. C., 187, were decided under the provisions of the code cited above.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.