Anderson v. Cave

• Citation: 27 S.E. 478,49 S.C. 505
• Parties: ANDERSON v. CAVE et al.
• Decision Date: 03 July 1897
• Court: United States State Supreme Court of South Carolina

27 S.E. 478

49 S.C. 505

ANDERSON v. CAVE et al.

Supreme Court of South Carolina

July 3, 1897

Appeal from common pleas circuit court of Barnwell county; Joseph H Earle, Judge.

Action by Caroline M. Anderson against Samuel C. Cave and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The decree of the circuit judge is as follows: "This case comes on to be heard upon the pleadings and testimony taken and reported by the master. The plaintiff is the daughter of the late Tarleton Cave, who died in 1870, leaving in force a last will and testament, whereby he devised and disposed of the land described in the complaint as follows: 'Unto my sons, John M. Cave, Harrison B. Cave, William L. Cave Anderson T. Cave, and Samuel C. Cave, I give and devise all my lands and real estate, share and share alike, to them and their heirs, forever; and I hereby direct that, as soon after my death as it shall be practicable and convenient, my lands and real estate shall be valued and appraised by five disinterested and discreet persons, to be appointed by my sons, or a majority of them, and that, after such appraisement, my said sons shall pay to Caroline M. Anderson and Imogene McDonald each one-eighth part of the appraised value of my said land and real estate.' The object of the present action is to recover from the defendants Samuel C Cave, one of the sons of the testator, and others, purchasers from him and other sons of the testator of parts of the lands devised by said will, her said legacy, which she alleges has never been paid to her, and claims is a charge upon all of the land of the testator. The defendants set up in their answer various defenses, only one of which has been considered, and upon which the cause is decided, namely, the defense of res judicata. It appears from the testimony, that on the 31st day of August, A. D. 1870, an action was commenced in the probate court for Barnwell county, in which John M. Cave and the other sons of the testator were plaintiffs, and John Henry Anderson, his wife, Caroline Anderson, the plaintiff herein, and others were defendants for the partition of the real estate of the said testator. The petition in said case is missing, and is unaccounted for. All of the other papers usual in such a proceeding are on hand, and seem to be regular, from which it appears that Mrs. Anderson, the plaintiff here, was personally served with the summons on the 6th day of September, A. D. 1870; that she made default, and on the 11th day of February, A. D. 1871, an order pro confesso was entered against her. On the 13th February, A. D. 1871, an order directing a writ of partition to issue was made by the probate judge. On the ___ day of February, A. D. 1871, a writ of partition was duly issued under the seal of the probate court, directed to five persons named therein as commissioners, three of whom qualified as such, by taking the required oath, on the 17th day of February, A. D. 1871. The said commissioners made their return under their hands and seals, whereby they appraised the land of the testator at $7,035, and assigned the land to the four sons of the testator, as tenants in common. On the 18th day of February, A. D. 1871, the probate court passed a decree confirming the commissioners' return, and making it the judgment of the court. On the ___ day of January, A. D. 1872, the four sons of the testator, John M. Cave, Samuel C. Cave, William L. Cave, and Harrison B. Cave, executed among themselves a deed of partition of said land. It further appears that the plaintiff was at the time of said proceeding in the probate court sui juris. When the plaintiff was served with the summons in the action for partition in the probate court, an opportunity was afforded her to come in and set up the claim she is now seeking to enforce; and if she conceived, as she now alleges, that her legacy was a charge upon the land to be partitioned in that suit, she was bound to do so; and, failing to assert her claim at that time, she waived it, and those to whom the land was assigned in that suit, and those who have purchased from them since, took and hold their land freed and discharged from her said claim. The defense of res judicata is sustained. It is therefore ordered, adjudged, and decreed that the complaint be, and hereby is, dismissed, with costs."

So much of the record of the action in the probate court mentioned and referred to in the decree as was before the court at the, trial does not mention any legacy to the plaintiff, Mrs. Anderson, or contain any reference thereto. From this decree of the Honorable Joseph H. Earle, presiding judge, and the judgment entered thereon, the plaintiff served due and legal notice of appeal to this court, and now asks that said decree and judgment be reversed, and the cause remanded for a new trial, on the following grounds and exceptions: "That his honor, the presiding judge, erred in holding and concluding that the plaintiff was bound when served with the summons in the action of Cave v. Anderson, for partition in the probate court, to come in and set up her claim to the legacy claimed under her father's will in that action, and that this claim was waived by her failure to set it up in said action: (1) Because the only issue which appears to have been involved in that action was the partition and severance of possession of the testator's land; (2) because the probate court was without jurisdiction to ascertain the amount due on said legacy, which the will directed to be ascertained in a particular manner, said directions not being incapable of performance, or to enforce the payment of said legacy. (3) Because the doctrine of communis error facit jus, invoked to sustain the jurisdiction of the probate court in cases submitted to it for partition, should not be extended to include in the judgment issues not submitted to it by a party defendant against whom a default judgment pro confesso was rendered."

Bellinger, Townsend & O'Bannon and H. F. Buist, for appellant.

Robt. Aldrich, for respondents.

McIVER C.J.

This is an appeal from the judgment of his honor, the late Judge Earle, which is fully set out in the "case," and which, together with the exceptions thereto, should be incorporated in the report of this case. All that we know of the nature of this action, and of the defenses thereto, is derived from the following language found in the circuit decree: "The object of the present action is to recover from the defendants Samuel C. Cave, one of the sons of the testator, and others, purchasers from him and other sons of the testator of parts of the lands devised by said will, her said legacy, which she alleges has never been paid to her and claims is a charge upon all of the land of the testator. The defendants set up in their answer various defenses, only one of which has been considered, and upon which the cause is decided, namely, the defense of res judicata." The only question, therefore, before us, is whether there was error in sustaining the defense of res judicata; and to that alone we shall confine our attention. It appears that the plaintiff is the daughter of the late Tarleton Cave, who, by his will, disposed of the land described in the complaint as follows: "Unto my sons, John M. Cave, Harrison B. Cave, William L. Cave, Anderson T. Cave, and Samuel C. Cave, I give and devise all my lands and real estate, share and share alike, to them and their heirs, forever; and I hereby direct that, as soon after my death as it shall be practicable and convenient, my lands and real estate shall be valued and appraised by five...