32 S.C. 378 | S.C. | 1890
The opinion of the court was delivered by
On February 18, 1869, the defendant, IT. J. F. W. Coleman, confessed a judgment to his sister-in-law, Tempe Cockerell, for $5,854.07, for money of her’s claimed to be in his hands. In October, 1871, Miss Tempe died, leaving a will, by which she gave her whole estate — including said judgment — to one Christopher O. Coleman and his children, charging it, however, with the life support of the defendant, Coleman, whom she- appointed one of her executors, and he is now her only surviving executor.
On September 11, 1888, the defendant, Coleman, as executor, caused to be issued against himself, individually, a summons in the form required by law, to revive the judgment. On the original summons to revive the judgment, there appears the following endorsement: “I hereby acknowledge service of copy of the within summons to renew the execution and revive the judgment in the case therein stated; and I hereby consent to the renewal of said execution and the revival of said judgment, according to the force and effect of the former recovery, and I also acknowledge and admit that the amount therein stated to be due on said judgment is true and correct. September 11, 1888.
“(Signed) H. J. F. W. COLEMAN.
“Witness: O. A. Douglass.”
On September 21, 1888, Judge Hudson granted the following order: “On hearing the summons herein, and due proof of service thereon on the defendant, and affidavit of no answer, demurrer, or notice of appearance, on motion of McDonald & Douglass,
In the meantime, in February, 1884, the plaintiffs, Wood & Boulware, also recoveied a judgment against the defendant. Coleman, and had the land of Coleman, the defendant in execution, sold by Milling, the sheriff, on salesday of May, 1889. It brought $716, and the plaintiffs, claiming that theirs was the only legal and valid judgment against the said Coleman, and the only subsisting lien upon the land, demanded that the proceeds of sale should be applied to their judgment. The sheriff refused to make that application, upon the ground that there was in his office an older judgment, viz., that of the estate of Tempe Cockerell; and thereupon the plaintiffs brought their action for the money against the sheriff', and Coleman, the defendant in execution, was after-wards made a party defendant. The question was, which judgment, under the facts and the law, had priority.
Judge Pressley held that the judgment of the plaintiffs had priority over that of the estate of Tempe Cockerell, saying: “At the time of the levy of the plaintiffs’ execution, more than twenty years had elapsed since the confession and entry of the judgment in favor of said Tempe Cockerell, deceased, against the defendant, Coleman ; and no note of any payment or acknowledgment of the debt having been endorsed on the record of the said judgment until after the full lapse of twenty years, it was presumed to be paid. The act of 1879 (section 1831, General Statutes) applies to this judgment. As it simply changes the rules of evidence, and does not in any wise divest, vested rights. I hold that it is not unconstitutional. The plaintiffs contest this judgment on other grounds, that it is not necessary to consider,” &c.
From this decree the defendant, Coleman, appeals to this court on the following grounds :
“I. For that his honor erred in holding that the act of 1879 (Gen. Slat., § 1831) was applicable, under the facts of this case,
Several questions have been elaborately argued here, as to which the Circuit Judge made no ruling. He confined himself to the question of priority between the judgments, as, according to his view, it was not necessary to consider any other. We must, of course, do the same.
Upon the subject of priority, the only thing necessary is to have a clear and distinct view' of the facts and their respective dates. On February 18, 1869. the Tempe Cockerell judgment was entered. That was before the adoption of the Code (1870), when there was no limit to the lien of a judgment, except that it would be presumed to be paid after the lapse of twenty years, unless something in the meantime was done by the parties, which would give a new' starting point to the running of the twenty years. On September 11, 1888, the executor instituted the usual proceeding by summons to show cause, to revive the judgment, of
But, passing that, we do not think this is a case for the application of the statutory evidence required by the act of 1879, as in Henry v. Henry (31 S. C., 1), in which the application to revive was not made until after the full twenty years had elapsed. If Judge Hudson’s order of revival had been made the very day on which the summons issued, viz., September 11, 1888, is it not quite clear that the provisions of the act of 1879 would not have touched the case at all ? for, until the twenty years had fully expired, there could be no need for any “payments” or “acknowledgments” to give a new starting point for the time necessary to raise the presumption. We have, at this term of the court, just decided, in the case of Adams v. Richardson [ante, 139), that the institution of the proceeding to revive a judgment, which is served on the defendant, stops the running of time, as to the presumption of payment, in the same way as the commencement of an ordinary action stops the running of time as to the statute of limitations. In so far as the presumption of payment from lapse of time is concerned, we think that we must consider the matter with reference to the time when the proceeding to revive was instituted; and, therefore, that the revival was in time, and that when the land was sold, the Tempe Cockerell judgment then had a subsisting lien, which was the elder of the two, and entitled to have the proceeds of sale applied to it.
Of course, nothing is intended to be decided upon any of the
The judgment of this court is, that the judgment o'f the Circuit Court be reversed, and the cause remanded for such further proceedings as the parties may be advised.