Jennings v. Parr

28 S.E. 82, 51 S.C. 191, 1897 S.C. LEXIS 57

Opinions

The opinion of the Court was delivered by

Mr. Justice Gary.

This action was commenced on the 11th of August, 1894, by R. H. Jennings, as clerk of the court for Fairfield County, and successor in office of Samuel B. Clowney, against Henry E. Parr, to subject lands in his hands descended to the payment of his ancestor’s debts. As his Honor, Judge Watts, says, it is a sequel to the case of Ruff et al. v. Elkin et al., 40 S. C., 69.

The following is a statement of the facts out of which the questions herein arise: In 1857, James Elkin departed this life, leaving in full force and effect a last will and testament, which, inter alia, contained the following provisions: “To my Son, Wm. B. Elkin, in consideration of the sum of one dollar to me in hand paid, and also on account of the natural love and affection I have for him, I give, bequeath, bargain, sell, and release, and by these presents do give, bargain, sell, and release, the lower or southwest part of the land on which I live, and which is my only tract, and which part of my tract my said son, Wm. B. Elkin, run off, measured, and plotted some years ago, and which he found to contain 188 acres. The line which divides this land now bequeathed him, my said son, Wm. B. Elkin, from the other part of my land, runs from the Robertson corner, next Samuel Martin’s land. And further, for the same reasons and considerations before named, I have given, granted, sold, and released, and by these presents do give, grant, and bargain, and release unto my said son, Wm. B. Elkin, 100 acres more of my land, to be given him off the east end of my tract, and so to be divided off to him as that shall include the dwelling house he built and lived in for some years, and also the spring. To have and to hold the said bargained, sold, and released lands to my said son, Wm. B. Elkin, and to his heirs, executors or administrators. I also will and bequeath the following negroes, to be given him at the death of my wife, Sarah Elkin, viz: Billy, Betsy, Dave, Hannah, Henry, Caroline, Prime, and Joshua, with áll their issue and increase. The above named property, both real and personal, bequeathed, given, and sold to my said son, Wm. B. Elkin, is given to him on this express condition, that in case he die and leave no children, no heirs of his body, then, and in that case, the whole of it, without any exception, shall revert to and be, according to the provisions of this my last will and testament-, the rightful property of my said two daughters, viz: the one-half of the whole to belong to my daughter, Mary Ann Elkin, and the other half to my daughter, Judy W. Ruff, and to their issue or children forever, and not to be subject to the debts of their husbands, said Elliott Elkin and Silas Ruff.”

The tract of land said to contain 188 acres is the tract mentioned in the bill filed by Wm. B. Elkin in the then Court of Equity for Fairfield District, on the 12th of June, 1858, asking for a change of investment, and that the rights of the parties in the said tract of land known as the “Elkin” tract, be transferred therefrom to the fund arising from such sale, and that a trustee be.appointed by the Court to receive and manage the same, under the direction of the Court. A decree was made conformably to the prayer of the bill, and the “Elkin” tract of land was sold thereunder by Wm. R. Robertson, then commissioner in equity, to the said Henry W. Parr, who gave his bond, with Dr. Robert W. Coleman and John Scarborough as sureties on said bond, which was also secured by a mortgage of the premises. In 1870, Henry W. Parr gave to Dr. Robert W. Coleman a mortgage on a tract of land known as the “Montgomery” tract, containing 581 acres, to save him harmless by reason of his suretyship on said bond. In 1876, Plenry W. Parr departed this life intestate, and Wm. B. Elkin became the administrator of his estate, and guardian of his infant son, Henry D. Parr, who was his only heir. In 1877, an action was commenced in the Court of Common Pleas for Fair-field County by Samuel B. Clowney, as clerk of the court, and as such successor in office of the commissioner in equity, against the defendant, Henry D. Parr, and Wm. B. Elkin, as administrator of the estate of Henry W. Parr, deceased, to foreclose the said mortgages. On the 9th day of May, 1877, his Honor, Judge Mackey, made a decree for the sale of the “Elkin” tract of land. On the 28th day of October, 1877, his Honor, Judge 'Kershaw, passed an order amending this decree so as to include the “Montgomery” tract of land. In pursuance of these orders, both the said tracts of land were sold on the 2d of December, 1877. The “Elkin” tract was purchased by D. S. Murphy for $726, and the “Montgomery” tract was purchased by Wm. B. Elki'n for $1,995. An execution for an alleged deficiency of $272 was levied, upon what was known as the “Mill” tract, and it was sold to Joseph Freshly for $1,300. The price at which Wm. B. Elkin bid off the “Montgomery” tract was not paid; a deed, however, was made to him of the said land. The haben-dum clause of the deed is as follows: “To have and to hold the premises aforesaid, with its hereditaments, privileges, and appurtenances, unto the said Wm. B. Elkin, as trustee, his successors in trust, nevertheless, and to and for the following uses and purposes — that is to say, in trust for the said Wm. B. Elkin and Mary A. Elkin and Judith W. Ruff, subject to and in accordance with the provisions, conditions, and limitations contained in the last will and testament of James Elkin, deceased, now on file and of record in the office of the judge of probate for Fairfield County, and their heirs, in accordance with the limitations contained in said will.” From the. calendars of the Court, introduced in evidence, it appeared that no report of the sale of the “Montgomery” tract of land was ever made to the Court. Wm. B. Elkin went into possession of the “Montgomery” tract of land, immediately after the sale in December, 1877, and received the rents and profits thereof until April, 1890, when he departed this life without issue.

„ Thereafter Silas W. Ruff and others, children and grandchildren of Mary Ann Elkin (who died in 1884) and Judith W. Ruff (who died in 1878), instituted suit to partition the “Montgomery” tract of land, claiming title under the aforesaid deed to Wm. B. Elkin. Henry E. Parr having taken possession of this land after the death of Wm. B. Elkin, was, by agreement, made a party to said suit. It was further agreed that the said Henry E. Parr should have the right to introduce testimony impeaching the records in the case of Samuel B. Clowney, as clerk, v. Henry L. Parr and Wm. B. Elkin, as administrator. The case came on for trial before his Honor, Judge Aldrich, and a jury in 1892. The following issue was then submitted to the jury: “Is Henry E. Parr the owner in fee of the land described in the complaint?” The jury, by their verdict, answered, “Yes.” The plaintiffs then moved for a new trial on the minutes of the Court, which was refused; thereupon they moved that his Honor would “proceed to adjust the equities of the parties;” this was also refused; whereupon his Honor, in the language of the Supreme Court, “delivered his decree affirming the verdict of the jury, and dismissing the complaint as against Henry E. Parr, with leave to the plaintiffs to apply to the Court for such action as they may deem proper, and the law will permit, to revive the action against Wm. B. Bikin, administrator.” In affirming the judgment of his Honor, Judge Aldrich, the Supreme Court said: “The plaintiffs surely have no right to partition the Montgomery tract of land until their right to it is established. From the view which was taken by the Circuit Judge, it seems to us that there was nothing for him to do but to dismiss the complaint as to Henry L,. Parr, simply upon the ground that the sale of the Montgomery tract of land, under the aforesaid foreclosure proceedings, was, as to him, an utter nullity, simply as void as if it had never existed. The question of payment, in fact, was withdrawn from the jury, and this ruling was without prejudice to any rights the parties may be advised they are entitled to.”

As hereinbefore stated, the present action was instituted by the plaintiff, as successor of Samuel B. Clowney. The defendant pleaded estoppel by the judgment in the case of Samuel B. Clowney, as clerk, against Henry L,. Parr and Wm. B. Elkin, as administrator, also actual payment, the presumption of payment, and the statute of limitations, and demanded an accounting of the rents and profits during the time the land was in the possession of Wm. B. Elkin, trustee, as aforesaid. The defendant also interposed the objection that the complaint did not state facts sufficient to constitute a cause of action. By consent, the case was referred to W. D. Douglas, Esq., to take the testimony. Upon hearing the case, his Honor, Judge Watts, rendered a decree dismissing the complaint. The plaintiff appealed, upon numerous exceptions, which will appear by reference to the report of the case. The defendant also served notice that ■he would ask this Court to sustain the decree of the Circuit Court, upon the additional ground that the issues raised in this case were concluded by the judgment of the Court in the case of Samuel B. Clowney, as clerk, v. Henry U. Parr and Wm. B. Elkin, as administrator, said judgment never having been vacated or set aside.

The Circuit Judge dismissed the complaint, on two grounds: 1st. Because Samuel B. Clowney, as clerk, by his sale on 2d December, 1877, parted with his entire interest in the bond and mortgage in this case, and, therefore, the plaintiff in this action, as his successor in office, has no right to bring this suit. 2d. Because Wm. B. Elkin, Mary Ann Elkin, and Judith W. Ruff were real parties plaintiff in interest in the case of Samuel B. Clowney, as clerk, v. Henry E. Parr and Wm. B. Elkin, as administrator, having purchased at their own sale .and gone into possession of the “Montgomery” tract of land, are accountable, as mortgagees in possession, for the rents and profits during the period of their possession, up to the time of the death of William B. Elkin in 1890, which rents and profits he finds are more than sufficient to satisfy the bond and mortgage.

1 We will proceed to consider the first ground upon which his Honor dismissed the complaint. The 16th paragraph of the complaint contains the following allegations: “That the plaintiff is now the duly elected and qualified clerk of the court of common pleas for the county of Fairfield, in the State of South Carolina, the successor in office of the said Samuel B. Clowney, as clerk as aforesaid, and, as siich, the legal owner and holder of said bond” (italics ours). The answer says: “The defendant admits the truth of the allegations contained in the 16th paragraph of the complaint.” Furthermore, the objection that the plaintiff did not have the legal capacity to bring this action did not appear upon the face of the complaint, and, as it was not set up in the answer, must be considered as having been waived. Dawkins v. Mathis, 47 S. C., 64.

2 But even if the objection had been properly interposed, it could not have been sustained. Wm. B. Elkin, Mary Ann Elkin, and Judith W. Ruff were the equitable owners of the bond and mortgage at and before the time of the sale. There was, therefore, no necessity for them to become, by operation of law, the equitable assignees of the bond and mortgage, as they were already the equitable owners thereof. If they had been strangers to the bond and mortgage, then the doctrine stated in the opinion of Mr. Chief Justice Mclver would have been applicable as to the equitable assignment by operation of law. The reason of the rule is for the protection of purchasers at void judicial sales, and grows out of the equitable necessities of the case. That principle cannot, however, be applied in this case, as there is no such necessity, especially when it is not invoked by the purchasers for their protection, but by the defendant to defeat their rights. The law will not do a nugatory act by conferring, by mere operation of law, a right which already exists. Again, as the sale was set aside at the instance of the defendant, it would be inequitable to deprive the purchasers of rights, as to him, which they had at the time of the sale; and equity will place them, as far as possible, in the same condition they were before the sale. As the purchasers were the mortgagees, and no rights of a third party, as purchaser, are involved, there is no difficulty in restoring the mortgagees to their equitable right of ownership of the mortgage.

3 But there is another reason why the plaintiff had the right to bring the action: The clerk of the court, as successor in office of the commissioner in equity, is the trustee of an express trust, and had the right to bring the action without joining with him the persons for whose benefit the action is prosecuted; and even if the purchasers became, by operation of law, the equitable assignees of the mortgage, the clerk of the court, as the legal title to the bond and mortgage was still in him, had the right to bring the action for the benefit of the real parties in interest. This principle applies with special force in this case, because, even admitting that the purchasers became, by operation of law, the equitable assignees of the bond and mortgage, they were the same parties who, at the time of the sale, were the equitable owners thereof. There is still another reason why the plaintiff had the right to bring this action: The amount for which the lands were sold on the 2d of December, 1877, was not sufficient to satisfy the mortgage; if, therefore, the purchasers became, by operation of law, the equitable assignees of the mortgage, it was only to the extent of the amount which they paid for the land, and not of the entire mortgage — Givins v. Carroll, 40 S. C., 413; thus leaving the right still in the clerk of the court, as the trustee of an express trust, to bring the action to subject the lands to the payment of the mortgage. But if they became, by operation of law, the equitable assiguees of the bond and mortgage, then they succeeded to all the rights which they previously had, one of which was that the clerk of the court, as the trustee of an express trust, should, if they so desired, bring the action to subject the land to the payment of the mortgage.

4 We will next consider the second ground upon which the Circuit Judge dismissed the complaint. While we may concede that the principles announced in the opinion of Mr. Chief Justice Mclver are correct as to the rights of Wm. B. Elkin, we do not think they are applicable to the rights of Mary Ann Elkin and Judith W. Ruff. The words: “To have and to hold the said bargained, sold, and released lands to my said son, Wm. B. Elkin, and to his heirs, executors or administrators,” created in Wm. B. Elkin a fee simple title in the land. When these words are construed in connection with the other provisions of the will hereinbefore mentioned, they show that Wm. B. Elkin took a fee defeasible, upon his dying without children or heirs of his body living at the time of his death, in which event the land was to become the property of Mary Ann Elkin and Judith W. Ruff, as therein provided. In other words, a fee was conferred upon Wm. B. Elkin, subject to an executory devise to Mary Ann Elkin and Judith W. Ruff. Under these provisions of the will, Mary Ann Elkin and Judith W. Ruff had no right to the possession of the land during the lifetime of Wm. B. Elkin, and not even after his death, except upon the contingency of Wm. B. Elkin dying without children or heirs of his body living at the time of his death. The deed to Wm. B. Elkin purported to convey the land, subject to the conditions and limitations contained in the will. Even if the deed to Wm. B. Elkin had been valid, Mary Ann Elkin and Judith W. Ruff would have had no right to the possession of the land during his lifetime, and his possession would in no wise have been considered as their possession. Mary Ann Elkin and J udith W. Ruff could not have maintained a suit for the partition of the laud during the lifetime of Wm. B. El-kin, because they were not then entitled to the possession of the land. Cannon v. Lomax, 29 S. C., 372. How can they, therefore, be said to have been in possession of the land? Wm. B. Elkin, therefore, went into possession of the land under a deed which did not even purport to make his possession, by operation of law, that of Mary Ann Elkin and Judith W. Ruff. Mary Ann Elkin and Judith W. Ruff did not go into actual possession of the land, nor, as we have seen, were they constructively in possession. As Mary Ann Elkin and Judith W. Ruff were not in possession of the land, either actually or constructively, the doctrine applicable to mortgagees in possession cannot be invoked against them. The rights of these two daughters to the possession of the land did not arise until the death of Wm. B. Elkin, and they cannot, therefore, be held liable for his acts while in possession thereof. We think, therefore, the judgment of the Circuit Court was erroneous in applying the principles stated in his decree to the rights of Mary Ann Elkin and Judith W. Ruff.

5 The additional ground upon which the respondent asks this Court to sustain the judgment of the Circuit Court cannot be sustained. The Circuit Judge and the Supreme Court very carefully avoided adjudicating any of the rights of the parties, except that the defendant was the owner in fee of the land, by reason of the fact that he was not properly made a party to the action of Clowney, as clerk, v. Henry R. Parr and Wm. B. Elkin, as administrator. As the defendant was not properly made a party to said action, it necessarily followed that he was the owner in fee of that land, as the only heir of Henry W. Parr. The practical result, in the case of Ruff v. Elkin, supra, was that the defendant was not bound by the judgment of foreclosure under which the land was sold. Although the defendant is the owner in fee of the land, it is nevertheless subject to the mortgage, which was a subsisting lien at the time of his ancestor’s death.

The plaintiff is entitled to a judgment subjecting the land to the payment of the mortgage for the benefit of the representatives of Mary Ann Elkin and Judith W. Ruff. The mortgage, however, should be credited with the proceeds arising from the sale of the 181 acres, to wit: $726, and with $172 of the proceeds arising from the sale of the “Mill” tract, as of the time when the said proceeds were received. Interest on the mortgage should only be calculated from the time when Wm. B. Elkin died, as he was entitled to the interest up to that time, and the amount due by him to the defendant is more than sufficient to extinguish the interest he had in the mortgage.

These views render the other questions raised by the exceptions merely speculative, and they will not, therefore, be considered. For the foregoing reasons, I dissent from the judgment announced in the opinion of Mr. Chief Justice Mclver, and think the case should be remanded to the Circuit Court for such further proceedings as may be necessary to carry into effect the views herein announced.

As these views are concurred in by Mr. Justice Pope and Mr. Justice Jones, it is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to the Circuit Court for such further proceedings as may be necessary to carry into effect the views herein announced.

Justices Pope and Jones concur in the opinion of Mr. Justice Gary.