Heyward v. Williams

• Decision Date: 05 April 1900
• Parties: HEYWARD v. WILLIAMS et al.
• Court: South Carolina Supreme Court

35 S.E. 503

57 S.C. 235

HEYWARD v. WILLIAMS et al.

Supreme Court of South Carolina

April 5, 1900

Appeal from common pleas circuit court of Beaufort county; J. C Klugh, Judge.

Action by A. H. Heyward against C. A. Williams and others. From an order over-ruling a demurrer to the complaint, defendants Williams appeal. Reversed.

W. J Verdier, for appellants.

Trenholm Rhett & Miller and Thos. Talbird, for respondents.

POPE J.

This action is brought to foreclose a mortgage on land in Beaufort county, in the state of South Carolina, executed by C. A Williams on the 15th day of November, 1886, to secure a promissory note of said C. A. Williams for $4,000, given at Hardeeville, S. C., to Daniel H. Baldwin. Amelia S. Williams was also a mortgagor, and all the other defendants are made parties because they have or claim some interest in or liens on said mortgaged land. The plaintiff, in the second and third paragraphs of his complaint, sets out his interest and title to the note and mortgage herein as follows: "(2) That the defendants C. A. Williams and Amelia S. Williams on the 15th day of November, A. D. 1886, to secure the payment of said note, executed and delivered to Daniel H. Baldwin their deed, and thereby conveyed, by way of mortgage, to Daniel H. Baldwin, his heirs and assigns, the following lands and tenements, situate in the county of Beaufort, in the state of South Carolina: All that tract of land or plantation commonly known as 'Beach Hill,' situate, lying, and being on the waters of the Savannah Back river, in the said county and state, as the same was conveyed to William Mason Smith and John Julius Smith by James Porcher, as executor of Jacob W. Guerard, by two deeds bearing date the 13th of January, 1847, and the 14th of March, 1849, respectively, measuring and containing one thousand four hundred and eighty-six acres, more or less, according to a plat of said plantation made in April, 1848, by R. Q. Pinckney, surveyor, and having such marks, lines, and boundaries and dimensions as are set forth and delineated on said plat. *** (3) That on the 15th day of November, A. D. 1880, at 12 o'clock m., the said mortgage was delivered to the register of mesne conveyance of said county, to be by him entered on record, and was recorded. That, Daniel H. Baldwin having departed this life, letters testamentary on the last will and testament of the said Daniel H. Baldwin were approved and issued by Daniel G. Rollins, surrogate of the county and state of New York, on the 29th day of June, 1887, to Kate A. Baldwin, as executrix, and George J. Baldwin, as executor, of the estate of Daniel H. Baldwin, who, having acknowledged a payment of one thousand dollars of principal, and interest to November 15, 1894, as paid on the said note, by their deed dated the 27th of March, 1895, assigned and set over, for full value, the note made by defendant C. A. Williams, and mortgage securing the same (subject, however, to the payments indorsed on said note), unto A. H. Heyward, the plaintiff herein, his heirs and assigns; said assignment of the said mortgage being on the 13th day of June, 1895, delivered to the register of mesne conveyance for the said county, to be by him entered on record, and was recorded." When the case was called by Judge Klugh, and after the reading of the complaint, the defendant demurred orally thereto, upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, and reduced the grounds of such demurrer to writing, as follows: "(1) Complaint did not state that Daniel H. Baldwin departed this life, leaving of force a last will and testament; nor did it state that he appointed an executor or executrix. (2) The complaint did not state that the will of Daniel H. Baldwin was admitted to probate in this state. (3) That complaint does not state any facts showing Kate A. Baldwin, as executrix, or George J. Baldwin, as executor, qualified in this state. (4) The complaint fails to state any facts showing that Kate A. Baldwin, as executrix, or George J. Baldwin, as executor, had any right or power to assign the note and mortgage as alleged in the complaint. (5) The complaint does not state facts showing that the plaintiff is the owner of the said note and mortgage, or is entitled to recover thereon." After argument, the presiding judge passed the following order: "I think the complaint sufficiently states the fact that Daniel H. Baldwin departed this life, leaving a last will and testament, and that he appointed George J. Baldwin and Kate A. Baldwin his executor and executrix; and I also think that the complaint alleges that their title to the note and mortgage in suit was transferred to the plaintiff in this case. There are allegations in the complaint from which the court has a right to presume that the residence of the defendant C. A. Williams is in the state of South Carolina, and upon demurrer to consider that fact as affirmatively appearing in the complaint. That being so, the executors of Daniel H. Baldwin have no legal capacity to sue in this state until they have proved his will and qualified in this jurisdiction; nor, until such proof and qualification, has their assignee any legal capacity. But this objection to the legal capacity of the plaintiff must be made by answer or special demurrer. It has not been so taken, and cannot be considered upon oral demurrer. It is therefore ordered and adjudged that the demurrer be overruled. J. C. Klugh, Presiding Judge. May 27, 1899." Thereupon the defendants Williams appealed from such order, as follows: "(1) Because the circuit judge erred in deciding that the complaint sufficiently stated that Daniel H. Baldwin left a last will and testament, and that he appointed Kate A. Baldwin executrix, and George J. Baldwin executor. (2) Because the circuit judge erred in holding and deciding that the complaint stated facts showing title to the note and mortgage to be in the plaintiff. (3) Because the Circuit Judge held and decided the demurrer as if it was mad on the ground of want of legal capacity to sue, whereas the demurrer was on the ground 'that the complaint does not state facts sufficient to constitute a cause of action.' He should have decided, on that ground, either that it did or did not. (4) Because the circuit judge did not decide that the complaint does not state facts sufficient to constitute a cause of action. (5) Because the circuit judge limited the objections made by demurrer to the complaint to a want of legal capacity in the plaintiff to sue, and did not hold the objection as going to the cause of action. (6) Because the circuit judge erred in overruling the demurrer."

It certainly appears by the complaint that Daniel H. Baldwin is dead; that his last will and testament was admitted to probate in the surrogate court of the ...