The opinion of the Court was delivered by
Mr. Justice Gary.
The facts of this case are fully set forth in the decree of his Honor, Judge Benet, which will be incorporated in the report of the case.
The exceptions of the appellant, Drury J. Harman, are as [340]*340follows: 1. “For that liis Honor erred in not holding that the testimony of the defendant, Drury J. Harman, failed to show that the solicitors, Gregg & Adams, had failed to carry out the understanding between him and said solicitors, as to the manner in which the trust was to be created, and that said testimony was too indefinite to warrant the Court in setting aside the decison of the Court of Equity in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman. 2. For that his Honor erred in not finding 'and holding that Messrs. Gregg & Adams, who were the attorneys of both Charlotte Harman and Drury J. Har-man, in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman, in the action in the Court of Equity of Lexington County, in 1860, had failed to carry out the agreement between themselves and the said Drury J. Harman, in that they provided in the decretal order in said case, that if the said Charlotte Harman should die without having disposed of her property, that the said Drury ,J. Harman should be excluded from any share therein. 3. For that his Honor erred in not holding that the decretal order in the said case of Charlotte Harman against Caroline Satcher and Drury J. Harman having been procured just before the commencement of the war; that before the said war ended the court house and records at Lexington, S. C., were destroyed by Sherman’s army, and that since that time the defendant, Drury J. Harman, made inquiry of the clerk of the court of Lexington County, and was informed that there was no record of said case, and that said record was not found until the year 1895, when Mr. Spann, the present clerk of court, found them; and consequently the said Drury J. Harman had no notice or knowledge of the contents of such record. 4. For that his Honor erred in not holding that the claim set up by the defendant, Drury J. Harman-, for $125, money actually expended by him in preserving and protecting the property sought to be partitioned by the proceedings in this case, was a valid and subsisting claim, and should be paid out of the proceeds of the sale of the real [341]*341property sought to be partitioned in this case. 5. For that his Honor erred in not finding and holding that the defendant, Drury J. Harman, signed an answer in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman, consenting to the sale of the property mentioned in that action, and consenting to the investment of the proceeds of said sale as prayed for in said case in 1860; believing that Messrs. Gregg & Adams would see that he should not be excluded from the distributive share of the estate of his wife, the said Charlotte Harman, if she should die without having disposed of the same; that said Harman did not have any notice that said decretal order excluded him from any share therein; and that said decretal order is not only without date, but was never marked filed. 6. For that his Honor erred in not finding and holding, that after Messrs. Gregg & Adams had prepared said decretal order, that they informed the said Drury J. Harman that if his said wife died without disposing of her property, so invested as aforesaid, that he would receive his distributive share therein; and upon such representation made to him as aforesaid,-he was misled and deceived, and was, therefore, clearly entitled to relief under the proceedings in this case; the more especially because the property stands in the same condition that it was in when title was first made to the trustee, and there are no bona fide purchasers without notice whose rights have intervened. 7. For that his Honor erred in not holding that, under the circumstances in this case, the defendant, Drury J. Harman, was entitled to one-third of the premises sought to be partitioned by the proceedings in this case. 8. Because his Honor erred in holding that the defendant, Drury J. Harman, did not pay Messrs. Gregg & Adams a fee for their services in the case of Charlotte Har-man against Caroline Satcher and Drury J. Harman, and if he did so, that it was a debt for which his wife was individually liable, and that said debt was long since barred by the statute of limitations. 9. Because he erred in finding that the testimony of the defendant, Drury J. Harman, as [342]*342to the $50 paid Melton, was very indefinite and uncertain, and that said claim was not a charge upon the trust estate.”
These exceptions raise the following questions: 1. Was the defendant, Drury J. Hannan, bound by the proceedings in the case of Charlotte Harmon against Caroline Satcher and Drury J. Harman, out of which the trust estate arose? 2. Was there error in refusing to sustain the claim of $125 hereinbefore mentioned? 3. Was there error in refusing to sustain the claim of $75 hereinbefore mentioned? 4. Was there error in holding that the defendant, Drury J. Harman, was not entitled to one-third of the premises hereinbefore mentioned?
1 There is a reason, in addition to what his Honor, Judge Benet, says in his decree, why the exceptions raising the first of these questions cannot be sustained: The appellant, Drury J. Harman, seeks to set aside the judgment in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman in this case, which is collateral to the case in which said judgment was rendered, upon grounds not appearing upon the face of the record. It has been so frequently decided, within the past few years, that the proper remedy in attacking a judgment for any defect not apparent upon the face of the record, is by a motion in the cause, and before the Court in which the judgment was recovered, that we deem it only necessary to refer to the case of Drake v. Steadman, 46 S. C., 474, and the cases therein cited, to sustain this ruling. The exceptions raising the first question are, therefore, overruled.
2 This Court is satisfied that his Honor was correct in refusing to allow the claims of $75 and $125, for the reasons stated in the decree. The exceptions raising the second and third questions are overruled.
[343]*3433 [342]*342The exception raising the fourth question is in very general terms. Even if it should be considered sufficient to raise the questions: first, that under the authority of the case of Sires v. Sires, 43 S. C., 272-3, and the cases therein cited, the general power of disposition of the property mentioned in [343]*343the deed, which was conferred upon Mrs. Harman, vested the fee in her; and second, that under the authority of the case of Glenn v. Jamison, 48 S. C., 316, the fee being vested in Mrs. Harman, theotherpartsof thedeed inconsistent with the control and disposition of the land by her were null and void; and third, that the use was thereby executed; still we do not think the exception raising this question can be sustained. The order signed by Chancellor Carroll was not merely administrative, but judicial in its nature. Converse v. Converse, 9 Rich. Eq., 535. It was, therefore, res judicata as to Drury J. Harman, and by that order it was determined that the property therein mentioned should not be subject to the control of Drury J. Harman nor liable for his debts; and, furthermore, that if Mrs.
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The opinion of the Court was delivered by
Mr. Justice Gary.
The facts of this case are fully set forth in the decree of his Honor, Judge Benet, which will be incorporated in the report of the case.
The exceptions of the appellant, Drury J. Harman, are as [340]*340follows: 1. “For that liis Honor erred in not holding that the testimony of the defendant, Drury J. Harman, failed to show that the solicitors, Gregg & Adams, had failed to carry out the understanding between him and said solicitors, as to the manner in which the trust was to be created, and that said testimony was too indefinite to warrant the Court in setting aside the decison of the Court of Equity in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman. 2. For that his Honor erred in not finding 'and holding that Messrs. Gregg & Adams, who were the attorneys of both Charlotte Harman and Drury J. Har-man, in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman, in the action in the Court of Equity of Lexington County, in 1860, had failed to carry out the agreement between themselves and the said Drury J. Harman, in that they provided in the decretal order in said case, that if the said Charlotte Harman should die without having disposed of her property, that the said Drury ,J. Harman should be excluded from any share therein. 3. For that his Honor erred in not holding that the decretal order in the said case of Charlotte Harman against Caroline Satcher and Drury J. Harman having been procured just before the commencement of the war; that before the said war ended the court house and records at Lexington, S. C., were destroyed by Sherman’s army, and that since that time the defendant, Drury J. Harman, made inquiry of the clerk of the court of Lexington County, and was informed that there was no record of said case, and that said record was not found until the year 1895, when Mr. Spann, the present clerk of court, found them; and consequently the said Drury J. Harman had no notice or knowledge of the contents of such record. 4. For that his Honor erred in not holding that the claim set up by the defendant, Drury J. Harman-, for $125, money actually expended by him in preserving and protecting the property sought to be partitioned by the proceedings in this case, was a valid and subsisting claim, and should be paid out of the proceeds of the sale of the real [341]*341property sought to be partitioned in this case. 5. For that his Honor erred in not finding and holding that the defendant, Drury J. Harman, signed an answer in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman, consenting to the sale of the property mentioned in that action, and consenting to the investment of the proceeds of said sale as prayed for in said case in 1860; believing that Messrs. Gregg & Adams would see that he should not be excluded from the distributive share of the estate of his wife, the said Charlotte Harman, if she should die without having disposed of the same; that said Harman did not have any notice that said decretal order excluded him from any share therein; and that said decretal order is not only without date, but was never marked filed. 6. For that his Honor erred in not finding and holding, that after Messrs. Gregg & Adams had prepared said decretal order, that they informed the said Drury J. Harman that if his said wife died without disposing of her property, so invested as aforesaid, that he would receive his distributive share therein; and upon such representation made to him as aforesaid,-he was misled and deceived, and was, therefore, clearly entitled to relief under the proceedings in this case; the more especially because the property stands in the same condition that it was in when title was first made to the trustee, and there are no bona fide purchasers without notice whose rights have intervened. 7. For that his Honor erred in not holding that, under the circumstances in this case, the defendant, Drury J. Harman, was entitled to one-third of the premises sought to be partitioned by the proceedings in this case. 8. Because his Honor erred in holding that the defendant, Drury J. Harman, did not pay Messrs. Gregg & Adams a fee for their services in the case of Charlotte Har-man against Caroline Satcher and Drury J. Harman, and if he did so, that it was a debt for which his wife was individually liable, and that said debt was long since barred by the statute of limitations. 9. Because he erred in finding that the testimony of the defendant, Drury J. Harman, as [342]*342to the $50 paid Melton, was very indefinite and uncertain, and that said claim was not a charge upon the trust estate.”
These exceptions raise the following questions: 1. Was the defendant, Drury J. Hannan, bound by the proceedings in the case of Charlotte Harmon against Caroline Satcher and Drury J. Harman, out of which the trust estate arose? 2. Was there error in refusing to sustain the claim of $125 hereinbefore mentioned? 3. Was there error in refusing to sustain the claim of $75 hereinbefore mentioned? 4. Was there error in holding that the defendant, Drury J. Harman, was not entitled to one-third of the premises hereinbefore mentioned?
1 There is a reason, in addition to what his Honor, Judge Benet, says in his decree, why the exceptions raising the first of these questions cannot be sustained: The appellant, Drury J. Harman, seeks to set aside the judgment in the case of Charlotte Harman against Caroline Satcher and Drury J. Harman in this case, which is collateral to the case in which said judgment was rendered, upon grounds not appearing upon the face of the record. It has been so frequently decided, within the past few years, that the proper remedy in attacking a judgment for any defect not apparent upon the face of the record, is by a motion in the cause, and before the Court in which the judgment was recovered, that we deem it only necessary to refer to the case of Drake v. Steadman, 46 S. C., 474, and the cases therein cited, to sustain this ruling. The exceptions raising the first question are, therefore, overruled.
2 This Court is satisfied that his Honor was correct in refusing to allow the claims of $75 and $125, for the reasons stated in the decree. The exceptions raising the second and third questions are overruled.
[343]*3433 [342]*342The exception raising the fourth question is in very general terms. Even if it should be considered sufficient to raise the questions: first, that under the authority of the case of Sires v. Sires, 43 S. C., 272-3, and the cases therein cited, the general power of disposition of the property mentioned in [343]*343the deed, which was conferred upon Mrs. Harman, vested the fee in her; and second, that under the authority of the case of Glenn v. Jamison, 48 S. C., 316, the fee being vested in Mrs. Harman, theotherpartsof thedeed inconsistent with the control and disposition of the land by her were null and void; and third, that the use was thereby executed; still we do not think the exception raising this question can be sustained. The order signed by Chancellor Carroll was not merely administrative, but judicial in its nature. Converse v. Converse, 9 Rich. Eq., 535. It was, therefore, res judicata as to Drury J. Harman, and by that order it was determined that the property therein mentioned should not be subject to the control of Drury J. Harman nor liable for his debts; and, furthermore, that if Mrs. Harman died without making a will or deed, then the said Drury J. Harman should be excluded from a distributive' share in said property. The exception raising the fourth question is also overruled.
The exceptions of the appellant, Simeon Corley, are as follows: 1. “Because his Honor erred in permitting the plaintiff to plead the statute of limitations to the answer of the defendant at the time of the trial. 2. That he erred in holding that at the death of Charlotte Harman, in 1895, she was seized in fee of the tract of land mentioned in the complaint, and thereby holding that the trust was executed when the trustee paid John H. Meetze for the tract of land and put the cestid que tmst in possession. 3. Because his Honor should have held that the fee in the land was in the trustee until the death of Mrs. Charlotte Harman. 4. Because his Honor should have held that the fee in the land, being in the defendant trustee until the death of Mrs. Charlotte Harman, as is alleged in the complaint, that the statute of limitations did not commence to run against the trustee until the happening of the event. 5. That his Honor should have held that the land under the trust descended to the remaindermen charged with this debt due to the defendant trustee. 6. The plaintiffs having alleged [344]*344in their complaint that the fee in the land was in the trustee at the time of the death of Mrs. Charlotte Harman, they are now estopped from claiming otherwise.”
4 The view which the Court takes of the questions raised by these exceptions renders several of them immaterial, and the questions raised by them only speculative. The complaint alleges, and the answer of Simeon Corley does not deny, that the trust terminated at the death of Mrs. Charlotte Harman in 1895. Such being the case, and the claim for commissions being a lawful charge against the estate, it was not barred by the statute of limitations, and should be paid out of the trust property, but without interest, which is not insisted upon.
It is the judgment of this Court, that the judgment of the Circuit Court be modified as herein stated, and in all other respects affirmed.