Rice v. Bamberg

• Decision Date: 07 October 1905
• Citation: 51 S.E. 987,72 S.C. 384
• Parties: RICE v. BAMBERG.
• Court: South Carolina Supreme Court

51 S.E. 987

72 S.C. 384

RICE v. BAMBERG.

Supreme Court of South Carolina

October 7, 1905

Appeal from Common Pleas Circuit Court of Bamberg County; Dantzler Judge.

Action by Eugenia M. Rice against F. M. Bamberg. Decree for plaintiff, and defendant appeals. Affirmed.

John R Bellinger, for appellant. H. F. & B. T. Rice, for respondent.

WOODS J.

In this action for the recovery of real estate the plaintiff claimed as devisee in remainder under the will of John M. Whetstone. The defendant set up title under a sale made by order of the court in an action instituted by the executrix of the will of Whetstone to marshal the assets of the estate and sell the real estate in aid of personalty for the payment of debts. By reference to former appeals in the cause reported in 59 S.C. 498, 38 S.E. 209, and 68 S.C. 184, 46 S.E. 1009, it will be seen the title of defendant failed because the plaintiff, who was at the time a minor, was not personally served with a copy of the summons, and was therefore, not a party to the suit in which the order of sale was made. By amended answer the defendant now claims the right to be subrogated to the demands of those who received the proceeds of the sale of the land to the extent of the amount bid and paid for the tract now held by him. It appears from the record that the sheriff was ordered to turn over the proceeds of the sale of the lands to the clerk, who was directed to apply them to the costs of the case and then to the debts of the estate of John M. Whetstone. There is no positive proof that the sheriff and the clerk carried out the order of the court; but, in the absence of proof to the contrary, the presumption is that these officers performed the duties required of them and that the proceeds of sale were applied to claims adjudged by the court in that cause to be valid debts of the estate of the testator. 22 A. & E. Ency. Law (2d Ed.) 1267; Dawkins v. Smith, 1 Hill, Eq. 369; Douglass v. Owens, 5 Rich. Law, 534; Woody v. Dean, 24 S.C. 503.

But the defendant's difficulty is that, the plaintiff here not being a party to the suit in which the debts were proved, the finding by the court that they were valid did not establish them as charges against her interest in the land. The plaintiff does admit the validity of the claims to which the proceeds of the sale of the land were applied, but puts the defendant to his proof that such claims ever existed as a charge upon...