Ayer v. Hughes

• Decision Date: 17 December 1910
• Parties: AYER et al. v. HUGHES et al.
• Court: South Carolina Supreme Court

69 S.E. 657

87 S.C. 382

AYER et al. v. HUGHES et al.

Supreme Court of South Carolina

December 17, 1910

Appeal from Common Pleas Circuit Court of Bamberg County; Ernest Gary, Judge.

Action by Mrs. Carrie Ayer and others against W. F. Hughes and others. From an order overruling exceptions to the report of the commissioners appointed to make a partition and division and confirming the report of the commissioners, certain defendants appeal. Affirmed.

J Aldrich Wyman, for appellants. J. F. Carter, for respondents.

WOODS J.

In this action for partition the appellants P. K. Hughes and Savilla Hughes excepted to the report of the commissioners, and sought to have sold the land assigned to the other parties in interest, alleging that the portions of land assigned to themselves had been greatly overvalued. In the complaint the plaintiffs demanded that the land be partitioned in kind while the defendant P. K. Hughes in his answer demanded a sale of the land and a division of the proceeds. Other issues were made in the pleadings with respect to a mortgage on the interests of some of the parties held by P. K. Hughes. All these differences between the parties were finally adjusted by an order for partition, consented to by all concerned, in which it was specially provided that there should be an actual division of the land made by commissioners, to be binding on all parties, as follows: "It shall be the duty of the commissioners in making said partition and division to first make a survey of the entire tract of land and fix the value thereon, then partition and divide said lands in the manner following: That portion of the said tract of land where the late Mrs. Olivia E. Hughes resided, in the northeast portion, so as to include the buildings thereon they shall cut off for the said P. K. Hughes such of said tract as will equal in value five-elevenths of the whole tract, taking into consideration the buildings and improvements thereon. Next, the commissioners shall cut off adjoining said tract provided and cut off for the said P. K. Hughes such a portion of said land as shall equal in value one-eleventh of the whole tract for Savilla Hughes, defendant herein. The remaining portion of said land shall be divided in five lots or tracts so that each lot or tract shall be equal in value, and shall be numbered from 1 to 5, and a plat shall be made by said surveyor showing the entire survey made. These last five lots or tracts shall be allotted in the following manner: The numbers of the lots shall be written on slips of paper and placed in a hat and drawn out by a child that cannot read the numbers. The first drawn shall be allotted to Mrs. Carrie Ayer; the second to Mrs. Annie Rentz; third to Mrs. Sallie Smith; fourth to the children of the said Ella Hughes, deceased, George Folk, Bessie Folk, Hammie Folk, John Folk, and Flossie Folk; fifth to the children of the said Sarah H. Ayer, deceased, T. J. Ayer, Hattie Hutto, F. C. Ayer, R. A. Ayer, Frank Ayer, and Virginia Aver. *** And the work of these commissioners, the partition and division of said lands made by them, shall be binding upon all the parties herein."

The commissioners, who were agreed on by counsel according to another provision of the order, found that the tract of land contained 506 acres, of the value of $6,600, and set apart to P. K. Hughes as his five-elevenths interest a tract containing 185 acres valued at $3,000, and to Savilla Hughes, as her one-eleventh interest, a tract of 49 1/2 acres valued at $600. The remainder of the land was divided into a number of tracts which were valued and set off to the other parties in interest.

In support of his contention that the return of the commissioners should be set aside as grossly unequal and unjust, P. K. Hughes submitted a large number of affidavits, all to the effect that the portions of the land assigned to him and to Savilla Hughes were worth much less, and the portions assigned to the other parties were worth considerably more than the value as assessed by the commissioners. In further support of his position P. K. Hughes submitted to the court the following offers:

"(1) To exchange the five shares which the commissioners have cut off for me, the said P. K. Hughes, for the other five shares cut off by the commissioners for Mrs. Carrie Ayer, estate of Mrs. Sallie Ayer, deceased, Mrs. Sallie Smith, estate of Mrs. Ella Folk, deceased, and Mrs. Annie Rentz (one tract for each of the said parties respectively), and will pay in cash the sum of $1,000 in the exchange.

"(2) P. K. Hughes offers to purchase and pay in cash the sum of $4,000 for the five shares above mentioned.

"(3) P. K.

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