24 S.C. 373 | S.C. | 1886
The opinion of the court was delivered by
The facts of this case are fully and clearly stated in the opinion delivered by Mr. Justice McGowan when the case was before this court on a previous occasion, as will be seen by reference to 22 S. 0., 47, and, therefore, it will not be necessary to repeat them here, but only to state what has occurred since. In accordance with the judgment then rendered, the case was remanded to the Circuit Court, w'hen the plaintiff, in accordance with the former order of Judge Fraser, applied for
By this appeal the appellant seeks to review the alleged erroneous rulings of Judge Fraser, on the trial before him, upon the exceptions then taken, as well as the final judgment rendered by Judge Wallace. Without undertaking to set out in detail the various exceptions appearing in the record, we propose to consider the several questions made thereby. The fundamental inquiry is as to the validity of the sale, made by the order of the judge of probate, under which the appellant claims that he acquired title to the land in dispute.
First, as to the proceeding instituted by Clawson as a creditor of Thomas Whitesides, deceased. The object of that proceeding was to sell the real estate of Thomas Whitesides, deceased, in aid of the personalty, for the payment of debts, and to that proceeding the heirs of Thomas Whitesides seem to have been regularly made parties, but no administration having been granted upon his estate, neither his executor nor administrator was, or could have been, made a party. The first inquiry, therefore, is, could the Court of Probate obtain jurisdiction in such a case ? That being a court of limited and not of general jurisdiction, we must look to the law defining its jurisdiction to determine this question. Section 40 of the Code of Procedure confers jurisdiction upon the Court of Probate to ordér a sale of the real estate of a person deceased, for the payment of his debts, when it shall be made to appear that the personal estate is insufficient for that purpose, but this jurisdiction is conferred only upon the Probate Court of the county in which the will of such deceased person was proved, or in which administration of his estate was granted.
Hence, it would seem to follow, that until a will has been proved, or letters of administration have been granted, no Coui’t of Probate can take jurisdiction of a proceeding to sell the real estate of a deceased person. This is not a mere question of defect
Next, as to the partition proceedings; and the fundamental inquiry here is, whether B. T. Dunlap, who was then a minor, was properly made a party to such proceedings. The law prescribes explicitly the mode in which a minor may be made a party to an action, and unless the requirements of the statute are complied with, no court can obtain jurisdiction of the person of the minor, so as to enable it to render any judgment in such action which will be binding on the minor. It has been settled by the decisions of this court (Finley v. Robertson, 17 S. C., 435; Riker v. Vaughn, 23 S. C., 187; and Genobles v. West, Ibid., 154) that an infant is incapable of making himself a party to an action by accepting service of a summons, so as to be bound by a judgment therein; and as it does not appear that there was any other legal evidence that the minor, B. T. Dunlap, had been served with the summons issued in the partition proceedings, he cannot be regarded as a party to such proceedings, and his rights cannot, therefore, be precluded by any order or judgment therein. The record only shows that he accepted service of the summons, which, as we have seen, was not sufficient, and there is no such proof of service, as is required.by section 159 of the Code.
It may be, as contended by appellant, that the minor, B. T. Dunlap, was cognizant of the proceedings for partition, and was aware of what was going on, but, as we have said in the case of Warren, Wallace & Co. v. Simon (16 S. C., 364), even in reference to an adult, that it would be a dangerous precedent to establish, that a party might be liable to have a judgment rendered
According to these views, it is quite clear that, so far as the interest of B. T. Dunlap in the land was concerned, the sale was void for want of jurisdiction, and hence the other points presented in the argument cannot arise, and need not, therefore, be considered.
From this, it follows that the plaintiff, as sole devisee of B. T. Dunlap, was entitled to recover his undivided interest in the land, subject to the equity set up by the appellant to be subrogated to the rights of the creditors of Thomas Whitesides, and this equity, as we understand it, has been properly allowed him in the judgment rendered by Judge Wallace, by deducting from the plaintiff’s share of the rents and profits his proportion of the debts of Thomas Whitesides, which have been paid by the appellant.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
