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The opinion of the Court was delivered by
Circuit Judge M. M. Mann, Acting Associate Justice.
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The order of his Honor, Circuit Judge Wm. H. Townsend, appealed from in this case, is satisfactory to this Court. The exceptions are overruled, and the order which will be reported, is affirmed.
Mrs Chief Justice BeEasE concurs.
Messrs. Justices Carter and Bonham and Circuit Judge G. Dewey Oxner, Acting Associate Justice, concur in result.
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Case posture Posture Before TOWNSEND, J., Marlboro, 1929. Exceptions overruled and order affirmed.Action by Lila Stanton Lynch against J. Alex Stanton and others, minors, and another. From an order confirming a special referee's report with one exception and making it the Court's judgment so far as consistent with decree, defendant minors appeal.
Order of Judge Townsend directed to be reported follows:
In 1918, J. Alex Stanton, then of the County of Marlboro, died intestate leaving as his only heirs-at-law his widow, Lila M. Stanton (by subsequent marriage Lila M. Lynch, and referred to also as Lila Stanton Lynch), and three children, J. Alex Stanton, LeRoy Stanton and Lila M. Stanton, Jr. The management of his estate, quite a large one at the time, consisting of over 735 acres, and personalty, was thrown on his wife, an inexperienced business woman. Her one-third interest in the estate became involved and
several mortgages were given on it, and a number of judgments obtained against her. For the years 1926, 1927 and 1928 she obtained each year, by a separate action brought for such purpose, authority to borrow money to run these farm lands for herself and her minor children; and the orders provided that, while the moneys advanced were to be secured by a crop mortgage and would be a primary obligation of hers, such sums so advanced were also to be a liability against the properties and estates of the minors. Then in 1929 another and fourth action, or suit, was brought by the mother, Lila Stanton Lynch, against her three children above-named under the Act February 20, 1928 (35 St. at Large, p. 1174), now Section 8660 et seq. , Code 1932, and resulted in a judgment and decree signed by Judge S.W.G. Shipp, then presiding in the fourth judicial Circuit, dated February 25, 1929, wherein and whereby the mother and general guardian of these infants was authorized to borrow for the year 1929, and each year thereafter until the oldest child became twenty-one years of age, a sum not exceeding $7,000.00. Such loans were to be secured by a mortgage on the crops to be raised on the lands, and to be a primary obligation of the mother, Lila Stanton Lynch, but, if not made out of the crops and such primary obligation, then to be binding against the properties and estates of these minors. On the petition in this case the matter was referred to a special master, testimony duly taken, and the decree founded on the report by the special master duly made.
In 1930 a further petition in this cause was brought stating in effect that a mortgage on the lands was required for the financing for the year 1930; that the former proceedings in which this petition was brought may not have sufficiently described the property and the description was there set out as to proper boundaries both in the petition and in the decree. However, this petition so brought in 1930 in this original cause did not contain a summons and was merely addressed as a petition to the Court of Common Pleas for Marlboro County, S.C. It was never served on
any one, and the guardian ad litem in the former cause in which the petition is brought consented to an order authorizing the mortgage and which order described the property as already noted. The advances for the year 1930 were then made and a mortgage given to Merchants' Fertilizer Phosphate Company for $5,500.00, and was, thereafter, by the Merchants' Fertilizer Phosphate Company, duly assigned to South Carolina National Bank. This mortgage coming to default, foreclosure proceedings were begun which resulted in a final order dated August 7, 1931, wherein and whereby the two-thirds undivided interest of the minors in the 735 acres set out in the petition in this cause was ordered to be sold for the satisfaction of such debt. The description in the former cause stated 840 acres, more or less, but that, of course, is inconsequential in this action.
In the latter part of 1928, an action was brought by Lila Stanton Lynch against her said three children which duly proceeded to judgment; and by the decree in this cause all differences between mother and the three children as to the settlement and winding up of the estate were concluded and ended by the mother taking up from funds she had on hand from an insurance suit all mortgages and liens against her undivided one-third interest in the estate; and the decree vested this undivided one-third interest, subject to a so-called homestead right of the mother and her second husband for life in the home and about 40 acres in the children. The liens against the interest of the mother, Lila Stanton Lynch, were assigned to a trustee for the children, but merely for the protection of the title so vested in them; and, as the title certainly needed no protection at this time and is duly for the children, it may be considered that the settlement was had whereby the mother, on reserving a homestead in the home and 40 acres, gave her one-third interest in the lands to the children and thereby vested them with a fee-simple title in the whole, save for this homestead right in the home and 40 acres to her and her husband and the survivor.
This action for the general settlement of the estate and all differences between the minors and the mother was brought by one attorney, while the suit for the obtaining of authority to mortgage and bind the interest of the minors in the lands of the estate was brought by another attorney. They are relatively at contemporaneous dates, and the fact that different attorneys were handling different suits involving the same estate evidently accounts for the conflict in the two; one adjudging the fee-simple title of all lands subject to the homestead in the children, and the other stating that the children owned a two-thirds undivided interest and held mortgages against the other one-third. This conflict is noted with some particularity in the cause of the South Carolina National Bank, plaintiff, against Lila Stanton Lynch et al., in the record as Judgment Roll No. 6125, and to which further reference may be had.
The two-thirds undivided interest of the minors, being about to be sold under the judgment and foreclosure in the suit of the South Carolina National Bank, and the tax collector threatening sale also for past due taxes and those due through the year 1932, amounting in the aggregate to over $3,600.00, this action was brought to seek authority of the Court to refinance the proposition by obtaining a loan on the lands sufficient to pay both the amount due to South Carolina National Bank, and the taxes through the year 1932. J.J. Evans, Esq., of the Marlboro County bar, was appointed as guardian ad litem of these three minors, and he has shown throughout most commendable regard for the rights of his wards, and appeals from the rulings of the special referee on grounds set out in his notice that will be hereinafter taken up.
It should be said that the order and final decree in the case of South Carolina National Bank v. Lila Stanton Lynch et al. , and in which these three minors were defendants, provided for the sale of the one-third interest of the mother. Lila Stanton Lynch, subject to the mortgages against it;
whereas the fact is that the mother does not own a one-third undivided interest, having by the former order of Court been divested of all right, title and interest therein, save for an interest for life and the life of her husband, and the survivor, in the home and about 40 acres. This same order, proceeding on the assumption that such one-third interest of the mother was of no value because of the liens against it, and disregarding the requirements for the exhausting of the homestead rights as a primary obligation, would, but for the fact that the two-thirds undivided interest of the children ordered sold is worth much less than their actual interest in the lands and estates, take away rights of the infants. However, as a matter of fact, this error becomes of a decided advantage to the minors though it does leave undisturbed the so-called homestead rights which were specifically mortgaged and which mortgage is certainly binding upon the adults. As the former orders provided that the debt to be created should be a primary obligation of the mother and she, with her husband, having secured this primary obligation by a mortgage jointly signed by them, it should be exhausted, generally speaking, before going against the interest of the minors, being a valid obligation under their signature. Section 9089, Code 1932. This final order and decree of foreclosure cannot be changed, but a practical solution will be hereinafter set out protecting the rights of every one.
To avoid any possibility of the exceptions of the guardian ad litem constituting a collateral attack on the proceedings heretofore brought and carried to judgment (both the original and supplemental proceedings authorizing the loan, and the foreclosure proceedings brought by the assignee bank and carried to judgment of foreclosure) it has been agreed between counsel for plaintiff and the guardian ad litem that this cause, and all exceptions and considerations thereof, shall be considered as if made in both such original proceedings by motions duly made therein.
From the foregoing it will be seen that this cause presents a situation where 735.35 acres, more or less, of admitted valuable farming lands in Marlboro County are about to be sacrificed; or a two-thirds undivided interest thereof sold under a foreclosure proceedings and the remaining amount for taxes. The showing is plenary that it is to the manifest advantage of the minors to refinance on the terms and conditions set out in the report of the special referee; and I so hold if the mortgage heretofore given be good as a mortgage, or if the notes given be binding obligations against the properties and estates of these three infants.
The exceptions of the guardian ad litem are: (1) That the showing here is not sufficient as being to the manifest advantage of the minors. This has already been cared for in which has preceded; (2) that the Act of 1928 set out in Section 8660 et seq. , is unconstitutional; (3) that the order in the former cause under which this debt was made and this order was taken is invalid because the proceedings show on its face that the petition does not contain a full description of the property to be mortgaged, and the decree does not sufficiently describe the property; (4) that the supplementary proceedings brought in such cause, whereby authority was asked to give the mortgage, is invalid because it shows on its face that there was no summons and the order was passed on the consent of the guardian ad litem without the taking of any testimony; (5) that the statute does not authorize the borrowing on the lands and estate of a minor except it be by mortgage; (6) that the rights of the minors in the homestead are not properly cared for by the decree of the special referee in this cause; or by the final order and judgment in the foreclosure proceedings brought by the South Carolina National Bank.
At the hearing before me, counsel for plaintiff stated that the failure to provide for the protection of the minors as revolving about the homestead was merely an oversight and himself requested that this be done. The proceedings and testimony
show that this was generally admitted as a proper provision; and this exception will be cared for hereinafter and the rights of the minors thereabout duly protected. This then will dispose of Exceptions 1 and 6 and leave for consideration only 2, 3, 4 and 5.
While the exception as to the unconstitutionality of the Act is very broad, it will be duly considered as the minors are before the Court and have submitted their rights to the Court's protection. The position is that as Article 1, Section 17, of the Constitution of 1895 provides that private property shall not be taken for private use, and to allow a guardian, natural or general, to handle the funds of an infant without the giving of a bond as provided by this statute, is tantamount to the taking of private property for private use. This position would presuppose a breach of trust on the part of the guardian, and, on such supposition, declare an Act unconstitutional. Whether the provision be wise or unwise is a matter for the Legislature to determine, and is not in the province of this Court. These proceedings are in accordance with the decisions of the Court for many, many years, and the failure to give a bond is in accordance with the express provisions of the Act of 1928. Constitution 1895, § 1, Art. 17; Section 8663, Code 1932; Bulow v. Witte , 3 S.C. 323 ; Dumas v. Carroll , 112 S.C. 284 , 99 S.E., 801 , 804 ; May v. Thomas , 94 S.C. 180 , 78 S.E., 85 .
The other exceptions challenge the correctness of the special master's report on the grounds as stated that the proceedings in these other causes show on their face that the mortgage was invalid because the petition does not contain a full description of the property; because the decree does not sufficiently describe the property; because the supplementary proceedings under which the mortgage was given were brought without a summons or service on the minors, and proceeded to judgment without testimony on the mere consent of the guardian ad litem; because the statute does not authorize a minor to borrow except on a mortgage; and
because the decree in the case of the South Carolina National Bank does not protect the rights of the infants to have the homestead set aside to the mother and stepfather first sold. The Act of 1928, Section 8660 et seq. , provides that the petition, when lands are to be sold, shall contain a full description of the property to be mortgaged as security therefor; and that the decree shall describe the property to be mortgaged as security therefor.
It will be noted that the proceedings in the cause challenged as showing invalidity on its face contemplated that the crops raised on the lands would pay the debts, and it was only provided that the creditor be secured by the estates and properties of the minors if these crops and the primary obligation of the mother who farmed the lands should fail. Proper and unusual care to the extent of taking the mother's home first was provided. It was not contemplated that there would be a mortgage on the interest of the minors when the proceedings were first brought, and this question only arose after the creditor in a subsequent year refused to accept anything save a mortgage on the lands. The applicable provisions of the Court have been referred to and by reference thereto it will be seen that the only time it becomes necessary to have a full description of the property to be mortgaged as security is where a mortgage is actually contemplated, and to be given. By the original proceedings, a mortgage not having been contemplated, a description in neither the petition nor the decree was required under plain words of the statute. However, even if the statute should apply and a mortgage had been given without further authority from the Court, there was for all practical purposes a full description both in the petition and in the decree. This petition stated: (a) That the property was owned by the plaintiff and defendants as tenants in common; (b) that it was the property on which they all resided; (c) that it contained approximately 800 acres; (d) that it consisted of a twenty-five horse farm; (e) that it was owned one-third by plaintiff
and two-ninths by each of the infant defendants; (f) that plaintiff in her own right and as guardian of her three said minor children was engaged in operating said farm; (g) that plaintiff has arranged with Merchants' Fertilizer
Phosphate Company of Charleston, S.C. to borrow $7,000.00 to enable her to purchase fertilizers and such other supplies necessary for the operation of said farm for the year 1929; (h) that in order to protect the corpus of the estate of the three minors, the above loan to be primarily secured by a mortgage on all the crops to be grown on the lands for the year 1929, and this mortgage was introduced in evidence by reference to its record in the office of the Clerk of Court which identified and described the lands.
The foregoing are in the petition, while the decree of the Court adopts the report of the special master, and this report states: (a) That the property in question is a large tract of farm lands in Marlboro County, S.C. containing about 800 acres; (b) that the parties reside thereon; (c) that a crop mortgage covering the crops to be raised for the year is to be made to the creditor, and this crop mortgage was recorded and introduced in evidence; (d) that the creditor would be protected by an assignment of the mortgages made by Lila M. Lynch on her one-third interest in the estate, and which mortgages properly described the whole and were duly of record.
This was both a substantial and a proper compliance with the terms of the statute. Fore v. Berry , 94 S.C. 71 , 78 S.E., 706 , Ann. Cas., 1915-A, 955; McNair v. Johnson , 95 S.C. 176 , 78 S.E., 892 ; Sally v. Gunter , 13 Rich., 72
The other proceedings in the case of South Carolina National Bank were entirely regular, and resulted in a final decree for the foreclosure of the mortgage. Even if this decree could be set aside because of the defects alleged in the supplementary proceedings whereby a mortgage was given, South Carolina National Bank would then come in and claim and, get a sale of the entire 735.35 acres, including the homestead
rights, because of the mortgage given by the mother and stepfather and the proceedings originally brought providing that the entire properties and estates of the minors were liable. Considering this South Carolina National Bank foreclosure case as if a motion in the original cause were properly before me to reopen the judgment, I would be forced to refuse it because practically the same questions were passed on in the case and decided contrary to this contention. A judgment in this State is an absolute verity and cannot be changed except for fraud or mistake. Here there was neither and this judgment in Judgment Roll No. 6125 is a judgment of this Court with proper jurisdiction and all parties before it. It must stand as a verity, forever ending the controversy and deciding all rights of the parties thereabout the same as if adults. In fact, if reopened it would result in no advantage whatsoever to the infants.
It may be well here to set out some of the decisions of the Court on such question. Naturally, one is inclined, and it is proper that such should be, to accord to minors every possible right; and the proceedings in the many cases introduced in the record here show that the interest of the minors has been safeguarded, and the unfortunate condition here existing was brought about by conditions beyond every one's control and which faces practically all of the best and most experienced business men throughout not only this State, but the nation. The following is a brief review of the authorities:
If we stretch the obligation of purchasers at judicial sales beyond the mere duty of ascertaining whether the Court had jurisdiction in the matter in which it claimed to act, and whether all the parties to be bound are before it in the language of Lord Redesdale in Bennett v. Hamill , 2 S. and L., 577, `we shall introduce doubt on sales under the authority of the Court, which would be highly mischievous.' Something is certainly due to the purchaser at these sales from the confidence which the public reposes in the judgments
of the Courts of the country. They must be upheld, at least so far as they operate on the title of parties to the proceeding, and if the title, though of infants, is thus alienated by the sale, the conveyance of the officers of the Court operates as an estoppel to the same extent, and in the same manner, that the proper deed of an adult conveying his title would bar him from asserting it against his grantee. Bulow v. Witte , 3 S.C. 323 .
We have always understood that a judgment in an action was conclusive of every issue involved, upon every party to such action. Indeed, it has been held that such judgment is conclusive upon such parties as to every issue necessarily involved or included by the action wherein such judgment was rendered. That some of the parties to such action were minors can make no exception to this rule, where they have had all the requirements of the law fulfilled as to service, appointment of guardian ad litem , etc. To hold otherwise, it seems to us, would be to imperil the integrity of all judgments. Owings v. Hunt , 53 S.C. 187 , 31 S.E., 237 , 239 .
The order of December 14, 1869, was passed in open Court, after the report of a referee upon the propriety of such an order, and although we can see no reason why a second guardian ad litem was appointed for Howell Sawyer, yet there seems to be no doubt that he was properly in Court up to that time, and being so, he, with the others who were also in Court, having submitted to the decree made without appeal, cannot now at this late date avail themselves of the defence that they had no knowledge of said decree or of the references upon which it was based. There must be an end to litigation, and if parties to actions fail to attend to their own interest while the action is in progress, or lose their right of appeal by negligence and inattention, they must take the consequences. Whatever may have been the justice or propriety of the order of December 14, 1869, there can be no doubt that all who were parties to the proceeding which
resulted in that order are bound, the same having been passed in open Court, and submitted to for years and without appeal. Baggott v. Sawyer , 25 S.C. 412 .
As to this last case it will be noted that the jurisdiction of the Judges at chambers has since been greatly enlarged and the procedure here under Section 8665 of the 1932 Code expressly provides for final judgment at chambers; although, in the particular proceedings attacked the order was signed in open Court by the then presiding Judge of the fourth judicial Circuit. The case of McIver v. Thompson , 117 S.C. 175 , 108 S.E., 411 , and other recent cases decided as to the protection of the rights of minors, under the proof and the record here, has no application.
The foregoing disposes of all exceptions, except No. 6. As the mortgage heretofore given and signed by both Lila Stanton Lynch and Norman W. Lynch binds their homestead, and as this debt, so long as it, or any part thereof, exists, must be made first out of the homestead to the extent of its value, and as the mortgage to be taken on the Bethea place includes this homestead, in case of a foreclosure of this mortgage, the homestead rights of Lila Stanton Lynch and Norman W. Lynch must be first sold. If such fails to bring an amount sufficient to pay the total debt, then, of course, the whole must be sold under the terms of the mortgage to be made and executed. And, so long as any part of this entire debt remains unpaid, the homestead has remained liable because of the provisions in one of the other orders that Lila Stanton Lynch was to rent the land and pay all taxes.
Except as herein specifically noted under Exception 6, the report of the special referee is confirmed in each and every particular and made the judgment of this Court, save as it may be inconsistent with any portion of this decree.
Let the mortgage that covers the home, or the Bethea place, and whereon is situate the homestead, be signed by Lila Stanton Lynch and Norman W. Lynch in their own
right, and by J. Alex Stanton, LeRoy Stanton, and Lila Moore Stanton, the minors, by Lila Stanton Lynch as general guardian; and let the mortgage on the other property be signed by J. Alex Stanton, LeRoy Stanton, and Lila Moore Stanton, the minors, by Lila Stanton Lynch, as general guardian; and let all the notes or bonds secured by the mortgage be signed individually by Lila Stanton Lynch and Norman W. Lynch.
And such mortgages, when made and executed, are hereby declared and decreed to cover all of the right, title, and interest whatsoever of the parties in and to the lands in the complaint in this cause set out and described, and which right, title, and interest as shown by this proceeding, are a fee-simple title in possession. Source: CourtListener
