Rowell v. Hyatt

¶1 The opinion of the Court was delivered by

¶2 1 The devise 'to John was a life estate, with remainder to his children. Testator defined the word “heirs,” as he used it, to mean “children.” That obviates the necessity for construction, which would only confuse what he made plain, to^ wit, his intention that John should have only a life estate, with remainder to his children.

¶3 2 Appellant contends, however, that the record of the will in the “will book” was different from the original, in that testator’s definition of the word “heirs” was omitted, and that, as purchasers for value without notice, he and those under whom he claims had the right to rely upon the record copy of the will. It is sufficient answer to that contention to say that appellant neither alleged nor proved the facts necessary to establish that defense. Lupo v. True, 16 S. C. 579; Merck v. Merck, 95 S. C. 328, 78 S. E. 1027; Carr v. Mouzon, 93 S. C. 161, 76 S. E. 201, Ann. Cas. 1914c, 731.

¶4*305 3-6 *304 As Jeremiah was administrator .with the will annexed, acceptance by him of the deed from John was inconsistent *305 with the idea that he still had possession of the land for purposes of administration. Therefore it estopped him, and, as it was matter of record affecting his title of which purchasers under him were bound to take notice, it estopped them, to- deny that he assented to the devise to John.- A devisee’s possession of the. devise, with bona fide assent of the executor, ousts the right of creditors to sell the devise under a judgment' obtained against the executor alone, after such assent and possession. Harley v. Bates, 4 S. C. L. (2 Brev.) 419; Thompson v. Schmidt, 21 S. C. L. (3 Hill) 156, 165; Alexander v. Williams, 20 S. C. L. (2 Hill) 522; Green v. Iredell, 31 S. C. 588, 10 S. E. 545, 18 Cyc. 599. And these authorities show that assent to the devisee of a life estate inures to the benefit of the remaindermen.

¶5 Nevertheless, as we shall see later, as Jeremiah took nothing by the deed from John, except John’s life estate, which he and his grantees enjoyed, it is of little or no consequence whether he assented to the devise or not. But defendant had the right to rely upon the sheriff’s deed as a distinct and independent source of title. It becomes necessary, therefore, to determine what interest that deed conveyed.

¶6 7 One who .claims title to land under an execution sale must prove a judgment and execution which authorize the sale of the interest which he claims. Sheriff v. Welborn, 14 S. C. 480; Bonham v. Bishop, 23 S. C. 96; Parr v. Lindler, 40 S. C. 193, 18 S. E. 636.

¶7 8, 9 The form of judgment and execution against an administrator or executor which is necessary to authorize sale of the property of decedent’s estate, when the heirs or devisees have not been made parties, has been determined and pointed out in many cases. Hubbell v. Fogartie, 19 S. C. L. (1 Hill) 167, 26 Am. Dec. 163; Trimmier v. Thomson, 19 S. C. 247; Huggins v. Oliver, 21 S. C. 147; Gowan v. Gentry, 32 S. C. 369, 11 S. E. 82, 18 Cyc. 1075, 1077. The judgment must be recovered upon a debt or lia *306 bility of decedent, and it must be against his personal representative de bonis testatoris, etc. And the execution must conform to the judgment. A substantial variance from the correct form in such cases is not treated as a mere irregularity, but as matter of substance, which vitiates the sale; for as said in Small v. Small, 16 S. C. 64: “Forms must be exact when the right is claimed to sell land without making the owner a party.”

¶8 10, 11 There is no evidence that the judgment under which the sale was made was recovered upon a debt of William Rowell, the testator. There is no evidence that there was any judgment or execution, except the recitals in the sheriff’s deed. But, assuming, without deciding, that, when the judgment and execution have been lost, the recitals of the sheriff’s deed may be relied upon to prove them (but Sheriff v. Welborn, supra, seems to hold otherwise), and giving these recitals the utmost effect, they utterly fail to’ prove a judgment and execution which authorized the sale of the property of Wiliam Rowell’s estate. They are sufficient' to prove only a judgment and execution against “Jeremiah Rowell, administrator,” etc., of that estate. It is needless tO' cite authority that an administrator or executor has no power to contract debts which will bind the estate, except by special authority, which will not be presumed.

¶9 In his deed, the sheriff recites an execution “commanding me of the goods, chattels, houses, lands, and other hereditaments, and real estate of Jeremiah Rowell, administrator, with will annexed of William Rowell to levy,” etc., the sum recovered “against the said Jeremiah Rowell, administrator,” and that he levied upon a certain tract of land, or the interestt of the said Jeremiah Rowell, administrator, in a certain tract” described." Fie then recites the sale to E. T. Stackhouse, the transfer of his bid to Jeremiah Rowell, and the conveyance to the latter of “all that certain tract or parcel of land on which the said Lucy Rowell lives *307 with interest of Jeremiah Rowell thereinf’ situate, etc., “together with all and singular the members and appurtenances thereunto' belonging, and all the estate, title, and interest which the said Jeremiah Rowell, administrator of the estate of William Rowell, deceased, of right had in and to the same.” The italicized parts of the deed fail to show that the judgment was recovered upon a debt of William Rowell, or that it was adjudged that the recovery should be out of his estate. The judgment and execution recited were against Jeremiah Rowell, individually, the words “administrator,” etc., added tO' his name, being merely descriptio personae. Tobin v. Addison, 33 S. C. L. (2 Strob.) 3; Beazley v. Dunn, 42 S. C. L. (8 Rich.) 345; Small v. Small, 16 S. C. 64; Huggins v. Oliver, 21 S. C. 147; Gowan v. Gentry, 32 S. C. 369, 11 S. E. 82, 18 Cyc. 880, 881, 1075-1077. It follows that the purchaser at the sheriff’s sale acquired only the individual interest of Jeremiah Rowell in the land described, which, so far as the tract devised to John was concerned, was only the life estate that John had conveyed to him.

¶10 12 This conclusion makes it unnecessary to decide whether the evidence showed so conclusively that John had such actual and exclusive possession of the tract devised to him before the judgment was obtained as would oust the right of the judgment creditor to sell the land under that judgment that the Court might direct the verdict on that issue. Nevertheless, it may be said David Rowell testified that, after testator’s death, a survey was made and the lines of the several devisees were located, and John took possession of the tract devised to him, and lived on it two or three years. That testimony is not only uncontradicted, but it is strongly corroborated, by the undisputed facts and circumstances and the inferences to be drawn from the indisputable records, so that a finding to the contrary would have been without any evidence to support it. *308 Therefore, even if that were an issue in the case, the verdict was properly directed.

¶11 13 The appellant contends that even if John was in such actual and exclusive possession before the judgment was obtained as would have prevented a sale of the land under it, nevertheless, when he conveyed his interest to Jeremiah, the latter was then in possession both as administrator and as devisee, and, under the ruling in Smith v. Byers, 102 S. C. 215, 86 S. E. 481, the fee might have been sold under the judgment against him. But, in Smith v. Byers, the possession of the executor had never been changed. He took possession originally both as executor and as life tenant under the will; and it was held, nothing appearing to the contrary, that it would be presumed— not necessarily, and as a matter of law, but as a matter of fact — -that he was still holding the possession for the purposes of administration, when the judgment was obtained against him, especially as the judgment was against him both individually and as executor upon an obligation of his testator. This case is differentiated by the facts. Appellant’s contention overlooks the legal effect of an assent by the executor to' a legacy or devise and possession taken under it. The authorities cited above show that, once it is given bona fide, it cannot be recalled. It would be more consonant with justice and equity and authority to hold in this case that, when the' executor bought the land of his testator at sale under execution against himself upon a debt which it was his duty to' pay, he became a constructive trustee of the legal title, if that had been conveyed, for the benefit of the remaindermen. 18 Cyc. 287, 349, 769.

¶12 14 The remaindermen are not barred by the statute of limitations. They had no cause of action, until the death of the life tenant. Rice v. Bamberg, 59 S. C. 507, 38 S. E. 209, and cases cited. The provisions of section 134 of the Code of Civil Procedure are not applicable, *309 unless a defendant has been in possession 40 years after the accrual of a cause of action.

¶13 Judgment affirmed.

¶14 dissenting. Some time after the death of the testator, I. T. and W. Stackhouse, as executors, recovered judgment against Jeremiah Rowell, as administrator cum testamento annexo of William Rowell. The judgment roll, after search, 'could not be found among the records, and there was no testimony showing when it was recorded. On the 2d of March, 1857, the sheriff executed a deed purporting tO' convey to Jeremiah Rowell the lands of William Rowell, including the tract in dispute, which contains the following recital:

“Whereas, by a writ of 'fieri facias, issued out of the Court of Common Pleas for the district of Marion; tested the 28th day of March, 1856, and returnable according to law, to me directed, and lodged in my office on the 10th day of April, 1856, commanding me of the goods, chattels, houses, lands, and other hereditaments, and re'al estate of Jeremiah Rowell, administrator with the will annexed of William Rowell, to levy the sum of sixty dollars and sixty-one cents, debt and costs, which I. T. and W. Stackhouse, executors, the plaintiff, by the judgment of the said Court at Marion, lately recovered against the said Jeremiah Row-ell, administrator, I have levied upon a certain tract, piece or parcel of land, or the interest of the said Jeremiah Rowell, administrator, in a certain tract in the district of Marion aforesaid, hereinafter more particularly described.”

¶15 After the lapse of 20 years it will be presumed that there was 'a valid judgment. Corbett v. Fogle, 72 S. C. 312, 51 S. E. 884.

¶16 Through successive conveyances from Jeremiah Rowell to his grantees, the land came into the possession of the *310 defendant, D. H. Hyatt, who claims to be the owner thereof. None- of the remaindermen, nor those claiming under or through them, have ever been in possession of the 'land. Conceding that the remaindermen were not made parties to the proceedings, under which the land was sold, it by no means follows that they were not concluded by said judgment. The rule is thus stated in Huggins v. Oliver, 21 S. C. 159, by Associate Justice McIver (afterwards Chief Justice) :

“It seems to us that the rule to be deduced from the foregoing cases is this: That while, as a general proposition, it is true that lands of an intestate may be sold under a judgment recovered against the administrator, upon a debt of the. intestate, yet if the lands have passed into the actual and exclusive possession of the heirs before the judgment has been recovered, and before any lien has thus been fixed upon them, they can no longer be sold under such judgment, and can only be reached by the usual proceedings to subject real estate, in the hands of the heir, to the payment of the debts of the ancestor, … to which proceedings the heir would, of course, be a necessary party.”

¶17 This language was quoted with approval in Brock v. Kirkpatrick, 60 S. C. 322, 38 S. E. 779, 85 Am. St. Rep. 847. In the last mentioned case, the Court, in discussing the proposition that the exclusive possession of the heirs, and acts of ownership exercised by them, protected their inheritance from levy and sale, under a judgment and execution against the personál representative, said:

“This does not mean that the mere fact of actual and exclusive possession in the heir will prevent the application of the rule in D’Urphy’s case, 3 S. C. L. (1 Brev. 289). Such a construction would amount to a practical abrogation of the rule; for, as was pointed out by Mr. Chief Justice Moses in Rogers v. Huggins (6 S. C. 377) : Tn the very large proportion of the instances in this State (and the case before us presents one) they, upon whom the inheritance is *311 cast, are in possession at the very moment of the death of the ancestor, for in nine cases out of ten, they are members of his own household.’ ”

¶18 It cannot be successfully contended that the said proceedings were not binding upon the remaindermen, by reason of the fact that there was a division of the property among the devisees before the sale. In the first place, the testimony does not show when the judgment was recovered; and, in the second place, the testimony does not show when the division was made, or whether the possession was such as to protect the land from levy and sale, without making the heirs parties to an action for that purpose. The inferences from the facts were to be drawn by the jury, and not by the presiding Judge.

¶19 Nor can it be urged that the judgment was not in proper form, in that it was against Jeremiah Rowell, as an individual, and not in his representative capacity. This would constitute a mere irregularity, and could be cured at any time by amendment, even after a sale under the judgment, as shown by the case of Carroll v. Tompkins, 14 S. C. 223, in which the Court says:

“Even before the adoption of the Code, it was within the jurisdiction and the constant practice of the Court to amend its own proceedings and orders, especially in cases of mere clerical mistake as to form. As was said by the Court, in the case of Hubbell v. Forgartie et ux., 8 S. C. L. (1 Mill) 169 (26 Am. Dec. 163) : ‘It is every day’s practice to permit judgments and executions to be amended, according to' the right of the case, even after a sale under execution. If authority be necessary to sustain this practice, it will be found in the case of Hancock v. Proud, 1 Sand. 336, note 10, in which it is said: “But if the judgment be entered de bonis propriis, instead of de bonis testatoris vel si non, etc., it is considered as a mere clerical mistake, which the Court below will amend on motion, even after the record has been removed by error and argument in the Court of Errors

¶20*312 Even if the judgment was voidable, it could not be attacked collaterally. Sanders v. Price, 56 S. C. 1, 33 S. E. 731.

¶21 For these reasons I dissent.