27 S.C. 368 | S.C. | 1887
The opinion of the court was delivered by
Some time in the year 1882, June Woodward, the elder, departed this life intestate, leaving as his heirs at law, his widow, Silla, and the six children named as such in the complaint, being seized and possessed, at the time of his death, of a certain tract of land situate in Georgetown County, containing about 400 acres, which is the subject matter of controversy in the present case. In July, 1884, an action was commenced by two of these children, viz., Amelia and Susan, against said Silla Woodward, the widow, though she was not named as such in the summons or complaint, or in any of the subsequent proceedings, but, on the contrary, from the phraseology of the complaint, seems to have been regarded at that time as one of the children of June Woodward, sr., as well as against the children of said June and the present defendant, Elliott,
No further proceedings being had under this order, Judge Eraser-, on May 8, 1885, granted another order, wherein, after reciting that the writ of partition previously authorized had been suspended, “pending a negotiation between the parties looking to a family settlement, which has not been effected,” and that the number of commissioners mentioned in said order “are three, instead of five, the number now required,” the former order was rescinded, and it was ordered that a new writ, directed to five commissioners, do issue, directing said commissioners to partition said land amongst the said parties according to their respective
On August 18, 1885, these commissioners, all of whom appear to have acted, made their return, certifying that the land could not be fairly divided, and therefore recommended a sale of the entire tract, appraising its value at $670. After this return was made, to wit, on August 22, 1885, Mr. Hucks, the attorney who commenced the action for partition, and who seems to have been regarded as counsel for all the parties, signed a paper consenting that the heirs of June Woodward., notwithstanding this return recommending a sale had been made, might make a settlement among themselves, provided the expenses already incurred should be provided for, and that the first of September be the period allowed for the same. These provisions not having been complied -with, and so far as we can perceive from the evidence, no effort made to do so, on November 14, 1885, Mr. Hucks took an order for the sale of the land, which order was granted by Judge Aldrich at chambers while still in Georgetown, which is in the third Circuit, to which Judge Aldrich had been duly assigned. In pursuance of this order the land, after due advertisement, was offered for sale at public outcry, and bid off by one Ehrich at $330, who transferred his bid to the defendant Elliott, who has received titles for the same; but there has been no order confirming the sale.
All these grounds were overruled by the Circuit Judge, who rendered judgment that the plaintiffs were not entitled to the relief which they demanded; but that inasmuch as it now appeared that June Woodward, jr., had never been made a party to the previous action, inasmuch as the proof in this case showed that he had died three days before the copy-summons had been left at his late residence, his heirs at law were now entitled to have partition of the land, so as to set apart to them the share of their deceased father and husband, which was accordingly ordered, and to this part of the decree there was no exception. The plaintiffs, however, appeal upon the. several grounds hereinbefore indicated.
The fact that Silla Woodward was not named in the previous action as the widow of the intestate, and her share of his estate specifically stated, does not seem to us material. There is not the slightest evidence that either she, or any of the parties, or the commissioners in partition, were in any way misled by such omis
The second ground taken — -that the order of sale was taken and the sale made without the knowledge or consent of the parties — is not in our judgment supported by the testimony. It may be, and no doubt is, quite true that in this case, as in many others, the parties interested would have preferred an actual partition rather than a sale, if the same was practicable. But when it was found, after diligent effort (the commissioners in partition having spent three days in ineffectual attempts to carry out the wishes of the parties), that this was impracticable, we think the weight of the testimony rather tends to show that the parties quietly acquiesced in what seemed to be inevitable; certainly it does not show that they made any active opposition to the course recommended by the commissioners unanimously, one of whom was specially chosen by the plaintiff Silla, and induced to act solely by a willingness to gratify her. So we think the testimony show's that the parties were fully informed that the commissioners had determined to recommend a sale, and they either knew or ought to have known that such recommendation would
The only remaining inquiry is, whether Judge Aldrich had jurisdiction to grant the order of sale at chambers. This question must be determined by reference to the statute law. Section 2115 of the General Statutes reads as follows: “The judges of the Courts of Common Pleas shall have power at chambers to grant writs of prohibition and mandamus, and to hear and determine motions to set aside or stay executions, in the same manner, in every respect, as if the court was actually sitting; and with the consent of all adult parties in a cause, and of the guardians ad litem of infants therein, to hear and determine any matter not properly triable before a jury; and the parties respectively shall have the same right of appeal as if the decision was made in open court.
“They may hear and determine actions for partition, and may grant all writs and processes in such actions at chambers, in the like manner and with the same effect as are now granted in term time."
In addition to this we find in the section of the general statutes the words which we have italicized above, by which the power here under consideration was conferred, are placed in a separate paragraph from the previous part of the section where one of the powers conferred is subject to the qualification that the consent of parties shall be obtained; and the only word in the paragraph which we have italicized which refers, or in any way relates to what has gone before is the word “they,” which, of course, only relates to the officers previously spoken of — the judges of the Court of Common Pleas — and not to the powers conferred upon such officers. Now if, in the preceding paragraph, all the powers conferred had been conferred with the qualification contended for, there might be better reason for saying that such qualification must be annexed to the power
But what is much more important, as was well argued by counsel for respondent, if the view contended for by appellant should prevail, then the second paragraph of the section as originally adopted, was wholly unnecessary. For the third power-conferred in the first paragraph — “to hear and determine any matter not properly triable before a jury” — would, by its terms, embrace the power to hear and determine an action for partition, as that unquestionably is a matter “not properly triable before a jury,” and hence there would have been no necessity to add another paragraph conferring the same power in express terms, and the only reason for doing so must have been to. confer that specific power without the qualification — consent of parties— which had been annexed to the general class of powers, under which the one here brought in question would fall. For there can be no doubt that under the third power conferred in the first paragraph of the section, a judge at chambers would have jurisdiction to hear and determine an action for partition, with the consent of the parties, as it would unquestionably be a matter “not properly triable before a jury,” and if so, where would be the necessity for conferring such a power, in an additional paragraph, without any such qualification annexed, unless it be for the purpose of declaring that the power so specifically conferred might be exercised without the consent of the parties?
It is argued that the view which we have adopted would lead to the conclusion, that a judge at chambers in the County of Sumter might hear a case for the partition of -land in Georgetown, inasmuch as section 2115 contains no limitation upon his powers. But such limitation may be found in section 144 of the Code,
It seems to us, therefore, that Judge Aldrich had jurisdiction to grant the order of sale here brought in question. This order having been granted prior to the passage of the act of December, 1885 (19 Stat., 314), we have not undertaken to consider what effect, if any, that act may have had upon the section of the general statutes herein construed.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
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