Hendrix v. Holden

Decided August 24, 1900

Supreme Court of South Carolina · decided 1900-08-24

Before Gary, J., Oconee. Action for partition by N. A. Hendrix and the other children of Naomi Holden, against William Holden, administrator, John D. Verner and others in possession of lands of which she died seized and possessed, under sale by sheriff under execution, and parties holding liens on interest of Wm. Holden in said lands. So much of the case as refers to the Oconee County lands was referred to master of that county to decide all issues.

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Reversed · Decided 1900-08-24

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Cited by 7 later decisions — most recently November 1964

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Mr. Justice Gary,

¶1 dissenting. The issue as to “exclu *532 sive possession” was properly triable by a jury on the law side of the Court. The waiver of that mode of trial does not give this Court the right to review the findings of fact by the Circuit Judge. I, therefore, dissent from the opinion of Mr. Justice Pope.

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Status

Disposition: Reversed

Case posture

Disposition: Reversed.
Posture: Before GARY, J., December, 1899, Oconee. Reversed.Action for partition by N.A. Hendrix and the other children of Naomi Holden, against William Holden, administrator, John D. Verner and others in possession of lands of which she died seized and possessed, under sale by sheriff under execution, and parties holding liens on interest of Wm. Holden in said lands. So much of the case as refers to the Oconee County lands was referred to master of that county to decide all issues. Upon exceptions to his report, the Circuit Judge made the following decree: On the 30th day of June, 1891, Naomi Holden departed this life intestate in Oconee County. At the time of her death she was seized in fee simple and in the exclusive possession of the several tracts of land described in the complaint, which are the subject matter of this action. The said Naomi Holden left surviving her as next of kin and heirs at law, her husband, the defendant, William Holden, and her children, the plaintiffs above named. After the death of the said Naomi Holden, her said husband and children continued in the uninterrupted possession, use and enjoyment of the real estate of the said Naomi Holden up to the time the same was sold by the sheriff, under an execution issued on the 15th day of October, 1892, to enforce the payment of a judgment in favor of John D. Verner, as plaintiff, against the said William Holden, as administrator of the said Naomi Holden and in his own right. This judgment of John D. Verner was recovered under the following circumstances: On the 12th day of October, 1891, said William Holden was appointed administrator of the personal estate of Naomi Holden by Richard Lewis, Esq., judge of probate for Oconee County. I think it important that the petition and order of appointment should be set out at length. They are as follows: `The State of South Carolina, County of Oconee. To Richard Lewis, judge of probate of the County and State aforesaid: The undersigned most respectfully petitions for letters of administration upon the estate of Naomi Holden, deceased. (Signed) Wm. Holden. On hearing the above petition, it is ordered, that William Holden be appointed administrator of the personal estate of Naomi Holden, deceased, upon his giving good and sufficient bond. Given under my hand and seal this 12th day of October, 1891. (Official seal.) (Signed) Richard Lewis, Judge of Probate.' This petition and order are both written on the same sheet of paper, just as appears in the above copy. On the same day the said William Holden entered into bond in the sum of $800, with W.F. Parker and R.E. Mason as sureties, conditioned for the faithful administration of the goods, chattels and credits of the said Naomi Holden. On the 8th day of September, 1892, John D. Verner commenced an action in the Court of Common Pleas for Oconee County against William Holden, as administrator of the estate of Naomi Holden, and in his own right, on two notes alleged to have been executed by Naomi Holden to the said William Holden, the one dated 1st November, 1888, for $5,400, and the other for $1,500, both due one day after date, and endorsed by the said William Holden. On October 6th, 1892, judgment was recovered by default in favor of the said John D. Verner and against the said William Holden, both as administrator of the estate of Naomi Holden and in his own right, for the sum of $8,919.38, William Holden having accepted service of summons in this action, both in his representative and individual capacity, and having failed to file any answer. On the 15th day of October, 1892, execution was issued to enforce said judgment, and under and by virtue of the same the sheriff sold the various lots of land herein sought to be partitioned. The title deeds of the various purchasers are in evidence before me, from which it appears that on the 7th May, 1894, he sold to Thos. N. Hall and L.G. Gaston a lot known as the `Cox' lot, in Westminster, containing one acre, and also the John W. Mason lot, in said town, containing one and one-half acres. On 5th February, 1894, the said sheriff sold to the defendant, Josiah Holden, 250 acres in Oconee County, fully described in his answer in this cause. On 3d February, 1896, he sold to the defendant, William M. Gossett, lot No. 44, in the town of Westminster, and on the same day he sold to the defendant, John D. Verner, a tract of land on Choestoe Creek, containing eight and one-tenth acres, also the one-sixth interest in 830 acres, known as the `King' lands, also one other lot in said town, fronting Gum street. Also a part of lot No. 5, containing 12 36-100 acres in said town, (Doyle survey); also lot, No. 38; also a lot in said town, known as the `Fannie Nelson' lot, containing one-half acre; also the William Nix place, containing 950 acres, on both sides of Boon's Creek; also two lots in the town of Walhalla, known as lot 58, and containing one acre. It is admitted by the parties to this action that Naomi Holden is the common source, and that she died intestate, and was the owner in fee simple of all the lands which have been sold by the sheriff of Oconee County, and that she was the owner of two tracts of land in Oconee County, which have not been sold — one tract of seventy-five acres on Keowee River, and also a lot in Danville, known as lot No. 2 — and that she was also the owner in fee simple of three small tracts of land in the county of Pickens, one containing 100 acres, one 60 acres, and the other containing 625 acres. As already intimated, this suit is brought by the plaintiffs as heirs at law (being the children) of Naomi Holden, for the purpose of recovering the several tracts of land which were sold off, under the judgment and execution in favor of John D. Verner against the said William Holden, in his own right and as the administrator of Naomi Holden, deceased, and to partition the same amongst the said heirs at law of the said Naomi Holden, and for the purpose also of partitioning the several tracts of land that have not heretofore been sold. The present action was commenced on the 15th day of January, 1898. On July 13th and 14th, 1898, Judge Benet granted an order that as to the defendants, John D. Verner, William M. Gossett, Josiah Holden, Thomas N. Hall and L.G. Gaston, the said cause be transferred to the Court of Common Pleas for Oconee County for trial of the issues between the plaintiffs herein and said defendants, and for any other proceedings that might arise in the cause. On the 10th day of September, 1894, an order of reference was granted by the Court, referring the said issues to the master of Oconee County to determine all the issues of law and fact involved in said cause. At the reference before said master it was adjudged that the administrator of Naomi Holden was a necessary party to the action, and William Holden, as such, was made a party defendant, and filed his answer in the cause. The reference then proceeded. The master has taken a large amount of testimony and filed the same, together with his report on the issues of law and fact, in said cause. On this report and the exceptions thereto the cause was heard by me at Walhalla on the 10th day of November, 1899. At the conclusion of the arguments I reserved my decision until I could have an opportunity to formulate it in a decree. I should have stated that the master decided that the title to the several tracts of land described in the separate answers of John D. Verner. Wm. M. Gossett, L.G. Gaston, Thomas N. Hall and Josiah Holden to be good, and recommended that the complaint of the plaintiffs as to those defendants should be dismissed with costs. The exceptions to the master's report raised the question, in various forms, whether there was error in the said report in concluding that the title of the various purchasers of the several tracts of land sold under the Verner judgment and execution was good and valid. The sixth allegation of the plaintiff's complaint is as follows: `That the defendant, John D. Verner, claims to have some interest in the lands situate in the county of Oconee by reason of the sheriff's sale thereof under a certain judgment obtained against the defendant, William Holden, individually and as administrator of the estate of Naomi Holden, but these plaintiffs allege that as to them this judgment and sales thereunder are null and void, and the claims thereunder are worthless and cannot affect their interest in any of the said lands.' The defendants having admitted that Naomi Holden at the time of her death was the owner in fee of the land in dispute in this case, and that she is the common source of title from whom all the parties to this case are claiming title, and it appearing that the plaintiffs are the children of Naomi Holden and heirs at law, the burden is then cast upon the defendants to show that the judgment of Verner, and execution thereon, were sufficient to divest said plaintiffs of their title to said land. And that question brings up the real issue in the case. Is the Verner judgment and sale thereunder sufficient to divest these plaintiffs? Bonham v. Bishop , 23 S.C. 96 . In determining whether these purchasers have a good and valid title, I think it is well settled that as a general rule purchasers at sheriff's sales are not required to look into the regularity of the process under which the sale is made, but that principle does not apply when the process under which the sale was made was absolutely void. Small v. Small , 16 S.C. 72 . It is also well settled that the judgment, execution, levy and sale are all links in the chain of title to property purchased at sheriff's sale. All are necessary to support the purchaser's title, and if any one is void, the title of the purchaser fails. Sheriff v. Welborn , 14 S.C. 480 ; Bonham v. Bishop , 23 S.C. 102 . The defendants seem to have recognized this rule in the management and conduct of their defense. The 4th allegation of the answer of John D. Verner is as follows: `That on the 12th day of October, 1891, the defendant, William Holden, was duly appointed and qualified as to administrator of the personal estate of the said Naomi Holden, deceased, by the judge of probate in and for Oconee County, in said State, and he is still such administrator.' We find from the testimony reported by the master the following extracts: `Package No. 767 from the probate court, containing the record of the administration of the estate of Naomi Holden, introduced in evidence.' Again, we find: `Judgment roll No. 1932, in case of J.D. Verner, plaintiff, against William Holden, as administrator and in his own right, introduced in evidence.' It seems to me that the validity of the defendant, Verner's, judgment depends upon the appointment of William Holden as administrator of the estate of Naomi Holden, deceased, that being a link in the chain of title of the defendants. Roll No. 767, referred to by the master as containing the record of administration of the estate of Naomi Holden, is before me, and it consists of the petition and order set out at length in the statement of facts in the cause, and the bond of the said William Holden. If that is the evidence of the appointment of the administrator, I must conclude that it is defective, and that the defect is jurisdictional. The mode of granting administration is statutory. Section 2027 of the statute is: `The judge of probate shall grant administration in the following manner: After requiring the person or persons applying therefor to file a petition in writing, he shall issue a citation to the kindred or creditors of the intestate or person deceased, to show cause, if any they have, why administration shall not be granted to the person or persons applying therefor, and he shall cause the same to be published on the court house door of the county in which his office is for two successive weeks, and also by having it printed once a week for two successive weeks, after it has been issued, in some public gazette, if any be published, in the county.' Section 2028 of the statute is: `Every administrator shall, in open court, when letters of administration are granted him, take the following oath or affirmation, as the case may be, to wit: I do solemnly swear, or affirm, that A B, deceased, died without any will, as far as I know or believe, and that I will well and truly administer all and singular the goods and chattels, rights and credits of the said deceased, and pay all his just debts, as far as the same will extend, and the law require me, and that I will make a true and perfect inventory of all the said goods and chattels, rights and credits, and return a just account thereof when thereunto required. So help me God. From the record offered in evidence it does not appear that any of these requirements have been complied with, save the giving of the bond by the administrator and the petition in writing, if such it may be termed. On the contrary, the order of the probate judge recites the fact that administration was granted `on hearing the petition.' This does not come up to the requirements of the statute. In McRae v. David , 5 Rich. Eq., 484, it was decided that the duty of the ordinary to take a bond as prescribed by statute was ministerial and not judicial. It is true, the bond is signed by two individuals as surety, but has the bond been approved by the court as the statute requires? In Hankerson v. R.R. Co. , the Court held that `Any competent evidence showing that the court undertaking to grant such letters of administration had no jurisdiction to do so, would be alike admissible; for if the court have no jurisdiction, then the alleged letters of administration would be mere nullities, and surely the certified copy would be no better.' It is contended, however, that the judgment of the court of probate, evidenced by the certified copy of the letters of administration, cannot be attacked in this collateral proceeding. That depends upon whether the judgment in question is absolutely void or is merely voidable. If the former, then it is a mere nullity, and may be so treated whenever it is encountered; but if the latter, then it cannot be attacked in any collateral proceeding, but must be avoided by some direct proceeding instituted for that purpose. As we understand it, the test whether a judgment is void or merely voidable for want of jurisdiction, is whether the lack of jurisdiction appears upon the face of the record, or whether the infirmity must be shown by evidence outside of the record. In the former case, it is absolutely void, for in such a case no inquiry is necessary to show what appears on the face of the record, while in the latter case such inquiry is necessary to ascertain the fact showing the lack of jurisdiction. See Turner v. Malone , 24 S.C. 398 . In the very recent case of Hartley v. Glover , 56 S.C. 69 , it seems that Mr. Justice Gary wrote the opinion for the Supreme Court, in which Mr. Chief Justice McIver did not concur, but wrote a dissenting opinion, in which Mr. Justices Pope and Jones concurred. So that the dissenting opinion of Mr. Chief Justice McIver became the law of the case (two of the Justices having agreed with him). It is true, the Court had under consideration a case where administration was granted on a derelict estate, but that would not change the reasoning, as the authority to grant such administration is under a different section of the statute; the point at issue being that the power or authority to appoint an administrator is derived from the statute, and the provisions of the statute must be observed. The departure from the statute in the Hartley and Glover case consisted in the fact that the record on its face disclosed the fact that the forty days' notice required by the statute had not been complied with. The majority of the Court held that this defect was jurisdictional and fatal, and that the record might be treated as a nullity, `whenever and wherever it is encountered.' The conclusion of the Court was that the power conferred by a special statute can only be exercised in the manner and under the terms prescribed by such statute, citing Whitesides v. Barber , 24 S.C. 373 . The record in the present case does not disclose that the requirements of the statute have been complied with, but, on the contrary, it discloses the fact that administration was granted on the petition of the administrator. The order appointing the administrator is conditional upon his giving good and sufficient bond. The act of giving the bond is ministerial, approving the same is quasi judicial. At any rate, the record shows that the provisions of the statute have not been complied with, and this is jurisdictional and fatal to the validity of the judgment set up by the defendants. Consequently the sheriff's deed did not convey the interest of the plaintiffs in the land sold by him under said judgment. It seems to me, however, that there is another and better reason why said sales should not be sustained. As already stated, it is admitted that Naomi Holden was the owner in fee and in the exclusive possession of said land at the time of her death. After her death these plaintiffs and their father, William Holden, succeeded her in that possession, and continued in the use and occupation of the same till ousted by the purchasers at the sheriff's sale. William Holden testified as to the possession in the following language: Q. `From the time of her death up to the time the sheriff sold her land in this county, who was in possession of the real estate she left?' A. `Me and my children.' * * * Q. `What was done with the income from these different lands?' A. `I used it, me and my children, for taxes and to live off of. * * * Me and my children was in possession of all the land that was sold under this judgment from her death up to the sale.' The law in this State governing sale of land under a judgment obtained against an administrator in an action to which the heir at law was not a party, is clearly stated in Huggins v. Oliver , 21 S.C. 147 , and also in the later case of Wheeler v. Floyd , 21 S.C. 413 . In the former case, the authorities are reviewed and conclusion is announced that lands of an intestate may be sold under a judgment recovered against his administrator upon a debt of the intestate; but if the lands have passed into the actual and exclusive possession of the heirs at law before the judgment was recovered, they cannot be sold under such judgment, and can only be reached by the usual proceedings to subject real estate in the possession of the heir to the payment of the debts of the ancestor, to which proceeding the heir would, of course, be a party. In Wheeler v. Floyd , 24 S.C. 419 , the same rule is announced, the language of the Court being: `While it is true that the heir is generally liable for the debts of the ancestor, sealed or unsealed, to the extent of lands descended or devised, yet the land so descended or devised cannot be sold under a judgment obtained against the administrator or executor, obtained in an action to which the heir is not a party, if at the time of such judgment the heir is in the exclusive possession of the land, asserting the right of possession and enjoying its rents and profits (my italics). In such case the heir can only be made liable by direct action against him or them, in which, if judgment is obtained, the land can be levied upon, provided it has not been transferred before action brought.' Citing Bird v. Houze , Speer's Eqty., 252, and Jones v. Wightman , 2 Hill, 579. Now, the only question here is one of fact. Were the heirs in exclusive possession at the time this judgment was recovered? What is exclusive possession? I take it that it is such a holding that if continued for the statutory period would ripen into a title by adverse possession, and it does seem to me that these plaintiffs have come within that rule. Their father has rented the same out to tenants, collected the same and expended them for the use of himself and children — the highest proof of exclusive possession. It nowhere appears that he transferred or changed his possession of an heir at law to that of an administrator. He made no returns as such. Having reached this conclusion, I am constrained to overrule the master in his finding of fact on this subject. I, therefore, hold that the titles under said judgment of John D. Verner are invalid as against the heirs at law of Naomi Holden, and that they are entitled to have the same partitioned. The judgment is assailed on several other grounds, but having arrived at a satisfactory conclusion, I think it unnecessary to pass on them. It is, therefore, ordered, that the exceptions of the plaintiffs and such of the defendants as have filed exceptions to the master's report be, and the same are hereby, confirmed in so far as they are consistent with the views announced in this decree, and that the report of the master is hereby reversed in so far as the findings of fact and conclusions of law are inconsistent with the conclusions announced in this decree. * * * The defendants, John D. Verner, William M. Gossett, Josiah Holden, Thomas N. Hall and L.G. Gaston, gave due notice of intention to appeal from the judgment and decree of his Honor, Ernest Gary. The defendant, John D. Verner, excepts to the decree on the following grounds, to wit: 1. Because on the reference before the master on September 28th, 1899, the plaintiffs recognized that William Holden was the duly authorized administrator of the estate of Naomi Holden, and that he was a proper party to the action in his representative capacity, whereupon the following admission and agreement was entered on the record, to wit: `It is admitted by all parties that the administrator of Naomi Holden is a proper party to this suit in his representative capacity, and it is agreed that the summons and complaint be so amended as to make him a party; that his answer be filed as of this date.' That the summons and complaint should be considered thus amended, and there should be read into the complaint as amended an allegation in the usual form alleging the lawful appointment and qualification of William Holden, as administrator of the estate of Naomi Holden; that the answer of William Holden, as such administrator, was filed, alleging that he is the administrator of the estate of said Naomi Holden; that after the complaint was thus amended and answer filed, the plaintiffs and the defendant, William Holden, are estopped from raising the question or disputing the legality of the appointment and qualification of the administrator, and the Circuit Judge erred in not so holding. 2. Because the validity of the appointment of William Holden as administrator of the estate of his wife, Naomi Holden, deceased, was not questioned on the trial before the master or the Circuit Judge, the plaintiffs making no contention or exception that there was any irregularity or defect in such appointment, and the Circuit Judge erred in presuming such irregularity or defect in the grant of letters of administration as to render the same null and void. 3. Because the master found as facts, to which no exception was taken, as follows, to wit: `That Naomi Holden died intestate at Westminster, Oconee County, where she then resided, on June 30th, 1891, leaving as her heirs at law her husband, the defendant, William Holden, and seven children, the plaintiffs in this action. * * * On October 12th 1891, William Holden was duly appointed administrator of the personal estate of Naomi Holden, deceased, by Richard Lewis, judge of probate of Oconee County, and letters of administration were duly issued to him. He thereupon entered upon the discharge of his duties as such administrator, and is still acting as such.' That after this finding by the master, and no exceptions being filed thereto, the Circuit Judge erred in holding that William Holden was not the duly appointed and qualified administrator of the estate of Naomi Holden, deceased. 4. Because this case should have been heard and determined by his Honor upon the report of the master and the exceptions thereto, or recommitted for further testimony, before making the assumption that citation was not duly published for letters of administration to William Holden on the estate of Naomi Holden. 5. Because on the hearing of this case before the Circuit Judge on the report of the master and the exceptions filed there was no question raised as to any irregularity or defect in the grant of letters of administration by the probate court, it having been conceded all along that William Holden was the duly appointed and authorized administrator of the estate of Naomi Holden, and the Court erred in not so holding. 6. Because William Holden, the husband of Naomi Holden, deceased, is given preference by statute in the administration of his deceased wife's estate, and the court of probate had exclusive jurisdiction of the granting of letters of administration, and having jurisdiction of the subject matter upon which it acted in this instance, the maxim, `omnia presum-enitur rite esse acta,' is applicable, and the Circuit Judge erred in not so holding. 7. That in the absence of affirmative evidence that there was no publication of citation, the Circuit Judge erred in making the assumption that there was no publication of citation for two weeks, as prescribed by the statute for the grant of letters of administration to the next of kin of the intestate. 8. Because it does not appear affirmatively from an inspection of the record in the grant of letters of administration to William Holden on the estate of his deceased wife, Naomi Holden, that the probate court of Oconee County acquired no jurisdiction to do so, the legal presumption being that citation was duly published for two weeks; that the administrator took the statutory oath in open court; that the bond of the administrator was given and approved as the statute required; and his Honor erred in not so holding. 9. Because his Honor erred in holding that at the time the judgment of John D. Verner against William Holden, as administrator of the estate of Naomi Holden, deceased, was obtained and the sales of the real estate made thereunder, the plaintiff and the defendant, William Holden, were in such actual and exclusive possession of said land as would prevent a sale of the several tracts or lots of land under said judgment and execution issued thereon. 10. That a distinction should be drawn between the mere pedis possessio of the heirs on and after the descent cast, and that actual and exclusive possession, which is manifested by partition, or some act of similar import, whereby the heirs are found to be not only in actual but exclusive possession against the claims of creditors, and his Honor erred in not so holding. 11. Because his Honor erred in holding that the burden of proof is on the defendants to show that as a matter of fact the plaintiffs and the defendant, William Holden, were not in exclusive possession of said land at the time of the recovery of said judgment and sale thereunder; whereas, it is respectfully submitted that since plaintiffs are now seeking to recover possession of said land from defendants, who went into quiet and peaceable possession at the time of the purchase thereof, the burden of proof is now on the plaintiffs and the defendant, William Holden, to show that they were in such exclusive possession as would prevent a sale under the execution issued on said judgment. 12. Because his Honor erred in holding the titles under said judgment of John D. Verner against William Holden, as administrator of Naomi Holden, to be invalid against her heirs at law; that the heirs of Naomi Holden can recover the same of the several purchasers at sheriff's sale thereof under said judgment, and are entitled to have partition among themselves. 13. Because, in any event, this defendant and other purchasers at said sale own the undivided one-third interest of William Holden in said lands, said judgment being also against William Holden in his own right, and the one-third interest of William Holden in the unsold land belonging to said estate, being worth more than $1,000, and his Honor erred in not so holding. 14. Because the judgment in the case of John D. Verner against William Holden, as administrator of the estate of Naomi Holden, cannot be attacked collaterally in this action, and the Circuit Judge erred in not so holding. 15. Because the judgment of the probate court, in re the appointment of William Holden as administrator of the estate of Naomi Holden, is not subject to collateral attack in this action, and the Circuit Judge erred in not so holding. 16. Because, as to plaintiffs and defendant, William Holden, the appointment of William Holden as administrator of the estate of Naomi Holden, deceased, has become res adjudicata , and they are estopped from raising such question by the record in the case of John D. Verner against William Holden, as administrator of Naomi Holden's estate and in his own right. The defendants, William M. Gossett, Josiah Holden, Thomas N. Hall and L.G. Gaston, except to the decree on the following grounds: I. It was error on the part of the Circuit Judge to find and hold that `the record shows that the provisions of the statute (relating to the appointment of William Holden, as administrator of the estate of Naomi Holden, deceased,) have not been complied with, and that this is jurisdictional and fatal to the validity of the judgment set up by defendants. Consequently the sheriff's deed did not convey the interest of the plaintiffs in the land sold by him under said judgment,' and the Circuit Judge should have found and held that it did not affirmatively appear upon inspection of the record that the probate court failed to comply with the statutory requirements before granting the letters of administration, and, in the absence of such showing, it must be assumed that the probate court conformed to the requirements of law, and that the appointment of William Holden as the administrator of the estate of Naomi Holden, deceased, was properly made as required by law, and that the title of these defendants to the tracts of land purchased by them under the judgment of John D. Verner v. William Holden, as administrator of the estate of Naomi Holden, deceased, and in his own right, are valid. 2. For that the Circuit Judge erred in finding `that roll No. 767, referred to by the master as containing the records of administration of the estate of Naomi Holden, is before me, and it consists of the petition and order set out at length in the statement of facts in the cause and the bond of the said William Holden. If that is the evidence of the appointment of the administrator, I must conclude that it is defective, and that the defect is jurisdictional;' but the Circuit Judge should have considered all the evidence in the cause tending to show that William Holden was the duly appointed and qualified administrator of the estate of Naomi Holden, deceased, including the letters of administration granted to William Holden, as administrator of the estate of Naomi Holden, deceased, which letters of administration were also contained in and were a part of the record from the probate court contained in roll No. 767, introduced in evidence, and from such evidence have found and held that William Holden was the duly appointed and qualified administrator of the estate of Naomi Holden, deceased; and in the absence of evidence either for or against anything necessary to have been done, he should have assumed that the formal requisites to its validity had been complied with. 3. It was error on the part of the Circuit Judge to consider the question of the appointment of the administrator when the validity of such appointment was not questioned before the master, and after it had been alleged and admitted by the pleadings, and in the trial before the master, that William Holden was such administrator, and after the master had found that `On October 12th, 1891, William Holden was duly appointed administrator of the personal estate of Naomi Holden, deceased, by Richard Lewis, judge of probate of Oconee County, and letters of administration were duly issued to him. He thereupon entered upon the discharge of his duties as such administrator, and is still acting as such,' and such finding of the master was not questioned by any exception thereto, nor was the validity of the appointment of the administrator. 4. For that the Circuit Judge should have found and held that the appointment of William Holden as administrator of the estate of Naomi Holden, deceased, was regular and was duly made by the probate court for Oconee County. 5. The plaintiffs having admitted the representative character of William Holden as administrator of the estate of Naomi Holden, deceased, in the trial of the cause before the master, plaintiffs are estopped from raising such question afterwards. 6. For that it was error on the part of the Circuit Judge to consider the appointment of William Holden as administrator of the estate of Naomi Holden, deceased, and that the Circuit Judge should have held that the defendant, William Holden, and plaintiffs are estopped now from raising such question by the record in the case of John D. Verner v. William Holden, as administrator of the estate of Naomi Holden, and in his own right, and that such question is now res adjudicata as to the defendant, William Holden, and the plaintiffs. 7. It was error on the part of the Circuit Judge to overrule the finding of the master that the heirs at law of Naomi Holden, deceased, were not in the actual and exclusive possession of the lands sold under the execution in the cause of John D. Verner v. William Holden, as administrator of the estate of Naomi Holden, deceased, and in his own right, and to find and hold that the heirs at law of said Naomi Holden were in actual and exclusive possession of the said lands, and that the titles under said judgment of John D. Verner are invalid as against the heirs at law of Naomi Holden, and that they are entitled to have the same partitioned. 8. The defendants being in possession of the several tracts of land purchased by them, under written titles, as bona fide purchasers, the burden is upon plaintiffs to show their right to recover the said tracts of land from defendants, by a preponderance of all the evidence, and the Circuit Court erred in not so holding. 9. The defendants being in possession of the several tracts of land, under written titles, as bona fide purchasers, the burden is upon the plaintiffs to show, by a preponderance of the evidence, that the heirs at law of Naomi Holden were in actual and exclusive possession of the tracts of land purchased by these defendants, at the time of the sale of said lands, under the judgment in the case of John D. Verner v. William Holden, as administrator, etc., and it was error in the Circuit Judge to hold otherwise. 10. It was error on the part of the Circuit Judge to find and hold that the titles of these defendants under said judgment of John D. Verner v. William Holden, as administrator, etc., were invalid as against the heirs at law of Naomi Holden, and the Circuit Judge should have affirmed the finding of the master that these defendants were bona fide purchasers, for valuable consideration and without notice, at the sheriff's sales of the tracts of land purchased by them, and that the titles these defendants obtained under their purchases at such sales are valid. 11. It was error on the part of the Circuit Judge to find and hold that the titles under said judgment of John D. Verner are invalid as against the heirs at law of Naomi Holden, and that they are entitled to have the same partitioned; and in not holding that these defendants are entitled to the interest of the defendant, William Holden, in the several tracts of land purchased by them. 12. For that the Circuit Judge should have found that the defendant, William Holden, procured the defendant, Josiah Holden, to purchase the tract of land purchased by the defendant, Josiah Holden, representing to him that the land was being sold to pay the debts of Naomi Holden, deceased, and the Circuit Judge should have held that such conduct on the part of the defendant, William Holden, estops the defendant, William Holden, and the plaintiffs from now claiming any part or interest in the tract of land purchased by the defendant, Josiah Holden, under the said John D. Verner judgment. 13. It is respectfully submitted that neither the judgment of the probate court of Oconee County in re the appointment of William Holden, as the administrator of the estate of Naomi Holden, deceased, nor the judgment of the Court of Common Pleas in re John D. Verner v. William Holden, as administrator, etc., can be attacked, collaterally, in this proceeding, and it was error on the part of the Circuit Judge so to hold.

Source: CourtListener

Court

Supreme Court of South Carolina

Parallel citations

36 S.E 1010