Small v. Small

• Citation: 16 S.C. 64
• Decision Date: 01 October 1881
• Docket Number: CASE No. 1091.
• Parties: SMALL v. SMALL.
• Court: United States State Supreme Court of South Carolina

16 S.C. 64

SMALL

v.SMALL.

CASE No. 1091.

Supreme Court of South Carolina.

Oct. 1st, 1881.

1. The Circuit judge is not bound to consider the verdict of a jury on an issue ordered out of chancery as a correct finding of the facts, but may decree contrary to such finding. Ivy v. Clawson, 14 S. C. 272, approved.

2. One who purchases land sold under her execution for less than the amount due, but fails to receive the sheriff's deed, is entitled, nevertheless, to assert her equitable title to such land in an action brought for its partition, to which action she is made a party defendant.

3. Lands of a testator in the hands of his devisees unpartitioned, may be reached as assets of the estate under proper judgment against the executors, as such, for a legacy which, under a provision of the will, is declared to be in lieu of dower, and so accepted; but where the judgment and execution ran against the executors de bonis propriis, only the interest of the executors, as individuals, could be sold, and not the interest of other devisees.

4. The form of the judgment and execution in such case is not an irregularity which may be disregarded in favor of the widow, who purchased the land under her own irregular process. Forms must be exact to entitle one to sell land without making the owner a party.

Before HUDSON, J., Lancaster, October, 1880.

This was an action commenced July 29th, 1873, by Dilla Small and Uriah Small, devisees of John B. Small, against Marion Small and others, heirs and devisees of the same John B. Small, and against Mary Small, his widow; and, upon the death of Mary Small, it was revived against her devisees. The Circuit decree, after a statement of the facts repeated in the opinion, was as follows:

At a previous hearing of this cause, Judge Thomson, in June, 1879, ordered that this question of title be submitted to a jury. This was, at a subsequent term of the court, done, whilst Judge Wallace presided, but no further hearing of the cause was had. The verdict of the jury was against the McAteers, and in favor of the children and grandchildren of John B. Small. But there is no record of the testimony submitted to the jury, nor of the questions of law raised before the court, nor have we any report of the case by the presiding judge by which we are to be enlightened. We are here without the aid which is usually to be derived from the verdict of a jury upon an issue of fact. From all that we can gather, it seems that the absence of the sheriff's deed to Mary Small was considered fatal to her claim of title, and decisive against the McAteers. It is clear that Mary Small, the execution creditor, became the purchaser at the sale and entitled to a deed, unless it appears that she either did not comply with the terms of sale, or that some other good cause prevented the sheriff from making titles. But, if the proceeds of sale were applicable to her fi. fa., Mary Small, by the purchase alone, without further compliance, became entitled to her deed. There is no evidence that she did not comply, nor that the money did not belong to her, and the presumptions are all in her favor-so much so, that it devolves upon those resisting her title to show that she did not comply with her bid, and did not get titles; and nothing of the sort is shown, or attempted to be shown, so far as the court is informed. The verdict seems to be based upon the naked fact of the nonproduction of a deed.

Under the circumstances, we are not disposed to receive the verdict of the jury as a correct finding of the facts; and we find that, by virtue of the sale aforesaid, Mary Small became the lawful purchaser of this land, and either actually received titles from the sheriff, or became entitled to demand and receive the same, and that those claiming under her by devise are now entitled, in her stead, to receive titles. The fact that she devised the land is a strong circumstance in connection with the memorandum of levy and sale, going to show that she got titles. If the sale was valid, the McAteers must prevail in this action, and we are thus brought to the next and most interesting question submitted to us. It is contended by the plaintiffs that the lands of the testator, J. B. Small, devised or descended, cannot be submitted to the payment of a pecuniary legacy. That the devisees and heirs have an estate and a right which is superior to that of a mere pecuniary legacy, and the property of the one cannot be taken to pay the claim of the other, is a well-established general rule in law and equity. But, in the present case, the legacy is given in lieu of dower, and is regarded as standing in lieu of a debt due by the testator for the purchase-money of this estate, or inchoate right of the widow, which is highly favored in courts of justice, and in the eye of the law. Hence, a pecuniary provision in lieu of dower is regarded as standing on higher ground than a mere pecuniary legacy. It is an offer to buy the widow's estate in the husband's lands, and, when accepted by the widow, the contract of sale is complete, and the debt is due by the estate. If the personal assets be insufficient to pay other pecuniary legacies, this one does not abate ratably with them, but remains a charge upon the estate. See Stuart v. Carson, 1 Des. 500, and cases there cited; Heath v. Dendy, 1 Russ. 543 ; Isenhart v. Brown, 1 Edw. (N. Y.) 411. Now the McMullen tract of land has reverted to the estate of testator, and was distributable generally among his children. It was no longer a specific devise, and hence was liable, in our judgment, to levy and sale to satisfy this claim of dower.

We find, therefore,

1. That it was sold lawfully, and that Mary Small became the purchaser thereof, and that her devise to the McAteers gave them a good title, as against the children and grandchildren of the testator, who, in this action, seek partition.

2. That if sold, but so as to give Mary Small no legal title, it is still liable to the lien of this fi. fa., and that her personal representatives can yet have the fi. fa. levied and the land sold.

But, as our finding is in favor of the McAteers in the first instance, it follows that the complaint must be dismissed, and that the children and grandchildren of J. B. Small, who are parties to this action, must pay the costs and disbursements thereof to the McAteers, and such is the judgment of the court.

The land described in the complaint having, by consent of parties, been previously sold, and the fund being in court, it was ordered to be paid over to the McAteers (defendants), or their attorneys.

The devisees of John B. Small, named in the complaint, appealed from the foregoing decree, and from the order of the court to carry out the same, on the exceptions stated in the opinion of this court.

Mr. R. E. Allison, for appellants.

Mr. Ernest Moore, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

This was an action to partition a tract of land containing two hundred acres among “the children” of John B. Small, deceased, under a devise in his will. The land was claimed by Mary Small, the widow of the testator, and the question became one of title.

John B. Small died in 1856, possessed of a small unincumbered estate. He made provision by his will, (of which his sons, Uriah Small and John S. Small, were executors,) for his wife, Mary, and his children. Among other provisions he made the following: He devised a tract of land, known as the “McMullen land,” to his grandson, John Van Buren Tye, and if he should die without leaving wife or children, the same should revert and “be equally divided among his children.” It does not appear that the said grandson ever had possession, as he died before he attained majority without wife or child. This proceeding was to partition this land among the children under the will.

The widow, Mary Small, claiming the land, was made a party, and died pending the litigation, having devised the land to her kinsmen, John and Richard McAteer, who were made parties, and claimed to set up her title.

The testator, by his will, gave to his widow, Mary, in lieu and bar of her right of dower, five hundred dollars, “to be paid to her by my executors out of my estate, all for the support of my wife, Mary, during her life, and, at her death, to be returned to my estate, to be equally divided amongst my children, whatever of my said legacy that may not be economically expended for the above purposes,” &c. Mary, being dissatisfied with the amount allowed her for maintenance, filed a bill against the executors, Uriah Small and John S. Small, to compel assent to her legacy.

Chancellor Lesesne heard the case June 27th, 1867, and ordered the defendants to pay the plaintiffs, forthwith, one hundred dollars, and thirty dollars at the end of every three months, until the sum of $563.75 should be exhausted. This decree was not appealed from, but was enrolled and execution issued thereon, directing the sheriff “that of the goods and chattels, lands and tenements of said Uriah Small and John S. Small, defendants, you levy the same,” &c. Under this execution, the land in question was sold as the property of the testator, John B. Small. At the sale, ...