Lowrance v. Mccreery

• Decision Date: 29 February 1884
• Citation: 20 S.C. 424
• Court: South Carolina Supreme Court
• Parties: LORICK & LOWRANCE v. MCCREERY.

20 S.C. 424

LORICK & LOWRANCE

v.MCCREERY.

Supreme Court of South Carolina.

Feb. 29th, 1884.

1. When a master's report is adverse to defendant upon some of the issues raised, but on the main issue is favorable, and recommends a dismissal of the complaint, still, proper practice requires defendant to except to such adverse findings if he wishes to have them further considered in the cause.

2. A judgment was obtained in Richland county and transcript filed in Newberry county; execution was then issued by the clerk of Richland to the sheriff of Newberry, and made returnable “in 60 days,” and levy thereunder was made within sixty days. Held, that a sale of land in Newberry under this execution was valid.

3. An interest in land being purchased at sheriff's sale by the plaintiff in execution to whom the money was due, the purchaser may bring action for partition without making payment of his bid and before receiving a title-deed from the sheriff.

4. A distributee, L., having an interest in G.'s intestate estate, executed under her hand and seal, in the presence of two witnesses, an instrument of writing in words following, to wit: “For value received, I hereby assign, set over and deliver to S. all my right, title and interest, as legatee of the estate of G.” Held, that S. became thereby entitled to L.'s life-interest in a tract of land of which the intestate died seized and possessed, but the fee remained in L.

5. Such remainder was subject to levy and sale under execution against L., and the purchaser became thereupon entitled to maintain an action for partition, if such partition could be had consistently with the interests of all parties.

Before WALLACE, J., Newberry, November, 1882.

This was an action by Lorick & Lowrance against L. C. McCreery, Sarah E. Blackwell and others, for partition. The opinion states the case. The exceptions raised the points stated in the opinion to have been interposed by defendants in their joint answer, as a defense.

Messrs. Jones & Mower, for appellants.

Messrs. Moorman & Schumpert, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

This appeal involves the question whether a paper, of which the following is a copy:

“COLUMBIA, S. C., March 27th, 1874.

“For value received I hereby assign, set over and deliver to Sallie E. Blackwell, all my right, title and interest, as legatee of the estate of John Glymph.

Witness my hand and seal.

(Signed,)

“LAURA E. BLACKWELL. [L. S.]

“THOMAS RAWLS,

WILLIAM J. VAN INGEN,”

can operate as a deed conveying real estate, as against a purchaser of the said Laura E. Blackwell's interest therein at sheriff's sale by execution issued on judgment against her, obtained after the execution of said paper. The Circuit judge held, that this paper was a good conveyance, and dismissed plaintiff's complaint, who brought the action below for the land, relying upon his purchase at the sheriff's sale aforesaid, and this appeal now raises the question stated above.

The facts of the case, upon which this question is raised, are as follows: John Glymph, late of Newberry county, died intestate, seized and possessed of a tract of land situate in Newberry county, containing some 200 acres. He left surviving him the defendants, his heirs-at-law. His personal estate was administered upon by the two defendants, David and Alfred, his sons. On March 27th, 1874, the paper above referred to was executed by the defendant, Laura E. A short time after this, the plaintiffs brought action against the said Laura, in Richland county, and recovered a judgment for $209.23, besides costs, which was duly entered and a transcript thereof filed in the clerk's office for Newberry county, in June, 1874. Execution on this judgment was issued from clerk's office in Richland, and delivered to the sheriff of Newberry, returnable within sixty days. This execution was entered in sheriff's office June 29th, 1874, and levied in July, 1874. The sheriff, however, failing to sell, on account of notice of adverse claims, a rule was issued against him in July, 1877, which, being heard by Judge Kershaw, an order thereon was issued directing the sale within sixty days, or that the rule be made absolute. Accordingly, the sale was made on September 3d, 1877, notice of the claim of Sarah E. Blackwell being given at said sale. The interest of Laura was bought by the plaintiffs at $60. The purchase-money was not paid in cash, as the sale was made under plaintiffs' execution.

In October, 1877, the action below was commenced by the plaintiffs against the defendants, as heirs-at-law of John Glymph, for partition. This action was commenced before the sheriff executed titles to plaintiffs, the complaint being heard on October 3d, and the deed of the sheriff executed on the 17th of the same month. The defendants answered, interposing as a defense: 1. The invalidity of the sale: ( a) Because no transcript of the judgment against Laura had been filed in the office of the clerk of Newberry; ( b) Because the execution was returnable in sixty days, and hence was without legal force when the sale was made. 2. Because at the time appellants commenced their action, they had not paid the purchase-money, nor had they received titles. And, 3. Because Laura E. had transferred her interest in said land by the written assignment set forth above, before the sale. The case was referred to the master, who reported the facts as above stated, holding that the sale, notwithstanding the irregularities as to the execution complained of, was valid and legal, and, further, as matter of law, that the assignment referred to, transferred all interest of Laura E. to her sister, Sarah, which being done before plaintiffs' judgment, that plaintiffs took nothing by his purchase. He therefore recommended that the complaint be dismissed.

No exception was taken to this report by the defendants. Plaintiffs, however, excepted to so much as held that the assignment operated to transfer the interest of Laura E. to her sister, Sarah E. His Honor Judge Wallace overruled plaintiffs' exceptions and dismissed the complaint.

In the argument on appeal, both parties have discussed the alleged irregularity of the sale by the sheriff, notwithstanding the fact that no questions have been raised thereto by exceptions appearing in the “Case.” This is irregular, and should not be encouraged, but in this case it may be proper that the points involved therein...