Maxwell v. Greene

• Decision Date: 09 December 1933
• Docket Number: 13733.
• Citation: 172 S.E. 146,171 S.C. 253
• Parties: MAXWELL et al. v. GREENE.
• Court: South Carolina Supreme Court

172 S.E. 146

171 S.C. 253

MAXWELL et al. v. GREENE.

No. 13733.

Supreme Court of South Carolina

December 9, 1933

Appeal from Common Pleas Circuit Court of Barnwell County; M. M Mann, Judge.

Suit by B. Maxwell and others, copartners trading and doing business under the firm name and style of Maxwell Bros., against Mrs G. W. Greene, as administratrix of the estate of G. W Greene. From a judgment of the Circuit Court, refusing to dissolve an attachment, defendant appeals.

Reversed.

C Birnie Johnson, of Allendale, for appellant.

A. H. Ninestein, of Blackville, and Edward H. Ninestein, of Walhalla, for respondents.

W. C. COTHRAN, Acting Associate Justice.

On October 11, 1928, the plaintiffs herein sold to one G. W. Greene certain furniture at the agreed price of $1,625.65, upon which the said G. W. Greene paid all except $627.96. This amount was due when Greene died, on or about January 30, 1931. His widow Inez Laval Greene, was duly appointed executrix of his estate, and on March 3, 1931, she filed suit to marshal the assets of the estate, which it appears was insolvent, and the winding up of the estate was in progress when this suit was brought.

On March 14, 1933, this suit was brought against Mrs. G. W. Greene, as administratrix of the estate of G. W. Greene. Just why she was sued as Mrs. G. W. Greene, as administratrix, when her representative capacity was Inez Laval Greene, as executrix, does not appear.

The action purports to be under the "purchase-money" statute (section 546 of the Code) which permits an attachment of the property sold when the purchase price is not paid, although the wording of the complaint was more appropriate to an action in claim and delivery, especially as the record shows neither affidavit nor warrant of attachment. However, we will accept the pleadings as a suit for the unpaid purchase price with the assistance of an attachment, this being the construction evidently placed upon same by the attorneys and by the circuit court.

A motion was made to dissolve the attachment upon several grounds and was refused by the circuit judge, the only ground, as set forth in his order, being as follows: "I hold that the right to attach for the unpaid portion of the purchase money survives and that the death of the buyer did not affect the fixed rights of the parties; and that the action should be allowed to proceed to judgment."

From that order this appeal is taken, the exceptions fairly presenting the questions involved.

The real question raised by the appeal is whether or not an attachment will lie upon property belonging to an estate and then in the hands of an executor or administrator. It is well known that the purchase-money attachment proceeding is an addition to the old attachment law and that the method of procedure is the same.

In Shinn on Attachment and Garnishment, vol. 1, § 83, it is distinctly held that property in the hands of an executor or administrator is not subject to attachment, and refers to the case of Weyman v. Murdock, Harp. 125 as sustaining the rule. A quotation from this case is: "In (McCoombe v. Dunch) 2 Dall. 73 (1 L.Ed. 294), and ( Pringle v. Black's Ex'rs) 2 Dall. 97 (1 L.Ed. 305), it is laid down that executors, administrators, and trustees, are not liable to the writ of attachment, as they all act in a representative capacity; and in this Court, in 1801, an attachment, which had been issued against an executor, was withdrawn, because the Court thought it would not lie; and from that day to the present time, there is no trace of an attachment...