Barfield v. Barnes

• Decision Date: 11 July 1917
• Docket Number: 9748.
• Citation: 93 S.E. 425,108 S.C. 1
• Parties: BARFIELD ET AL. v. BARNES ET AL.
• Court: South Carolina Supreme Court

93 S.E. 425

108 S.C. 1

BARFIELD ET AL. v. BARNES ET AL.

No. 9748.

Supreme Court of South Carolina

July 11, 1917

On Amended Petition for Rehearing, September 18, 1917.

Appeal from Common Pleas Circuit Court of Kershaw County; T. J Mauldin, Judge.

Action by Henry Barfield and others against Henry C. Barnes and others. There was a decree for plaintiffs, and many years thereafter on motion of defendants, orders allowing them to take the deposition of their mother to perpetuate her testimony to be used in the defense of the action should the decree be set aside and modifying the decree to permit defendants to move to open the decree and allow them to defend anew, were entered, and plaintiffs appeal. Orders reversed.

The stipulation of counsel and the decree referred to are as follows:

It is agreed between counsel for the plaintiffs and the defendants:

(1) That the plaintiffs hold the lands as alleged in the first and third paragraphs of the complaint; that is, that said lands are a part of the lands divided by the will of George Stratford to the mother of the defendants for life, with remainder to the defendants, her children; that the plaintiffs held title from W. H. Lyles, who bought at master's sale of the premises, made under decree for foreclosure in case of J. T. Hay v. Sarah J. Barnes.

(2) That George Alden held mortgage authorized by decree in case of Geo. W. Barnes et al. v. Henry C. Barnes et al., and that same passed to J. T. Hay, his assignee, by his deed of assignment for the benefit of creditors.

(3) That the records of the two actions be offered, and that J T. Hay and W. D. Trantham would testify that the return of service of summons in the first-mentioned case on the minor defendants, except Henry C. Barnes, was made by the affidavit of Thos. S. Myers, in 1880; that such return was filed with the record by J. T. Hay; that return of service of summons on Henry C. Barnes was made by the sheriff of Greenville county was also filed with said record by J. T. Hay, and that it was in the record up to within the last ten months.

(4) That in 1875, when the action of Geo. W. Barnes et al. v Henry C. Barnes et al. was begun, none of said defendants were over the age of 14 years, except the said Henry C. Barnes, and that all lived with their parents at the time except Henry C. Barnes .

Decree.

In this action the plaintiffs allege that they are the owners of certain lands described in the complaint, and that the defendants claim some interest in said lands, and that the claims of the defendants constitute a cloud upon the title of the plaintiffs which they seek to have removed. The defendants have all been properly served with the summons and are before the court; a guardian ad litem has been properly appointed for such of the defendants as are minors; the defendants have answered; the cause has been fully argued before me by counsel for the plaintiffs and defendants. The lands described in the complaint were devised by the late George Stratford to his granddaughter, Sarah J. Cook, who afterwards intermarried with George W. Barnes, for life, and after her death to her children, who are the defendants in this action.

On the 31st day of July, 1875, George W. Barnes and his wife, Sarah J. Barnes, instituted an action in this county against their children, then in esse, Henry C. Barnes, Preston B. Barnes, W. Doby Barnes, Minnie Barnes (now Minnie Barnes Rawlinson), Daisie Barnes (now deceased), George S. Barnes, Ida Barnes (now Ida Barnes Price), Joseph Eugene Barnes, and Benjamin Cook Barnes, and other contingent remaindermen under the will of George Stratford. The summons in this action was personally served on all of the defendants, as appears on the records in said cause. Defendants appeared, a guardian ad litem was appointed for the minor defendants and answered, and everything appears to have been done in a regular and orderly manner. The object of this action was to obtain the authority of this court to mortgage the lands described in the complaint therein for the purpose of obtaining money to improve the property. By a decree of this court in the cause, made on the 21st of October, 1875, George W. Barnes and Sarah, his wife, were authorized to mortgage the lands to George Alden for an amount stated in said order. The mortgage was made to said George Alden, a merchant of Camden, S. C., and, said George Alden having made an assignment for the benefit of his creditors, said mortgage passed to J. T. Hay, assignee, and W. D. Trantham, agent of creditors, under said deed of assignment.

Some time in the year 1880 the said J. T. Hay, assignee, and W. D. Trantham, agent of creditors of George Alden, began an action in this county against George W. Barnes and Sarah, his wife, to foreclose the mortgage above referred to. In this action said George W. and Sarah Barnes appeared, and asked that their children, remaindermen under the will of George Stratford, be made parties defendant. By an order of this court they were made parties, were duly served with the summons in the action, a guardian ad litem was appointed for them, all of the defendants answered, the issues were referred to the master, the master made a report, and a decree for foreclosure was made by this court. Under this decree a sale was made and the premises were bought by J. T. Hay, who received titles. J. T. Hay subsequently made titles to Sarah J. Barnes, who executed a mortgage to him to secure the purchase money. This mortgage was foreclosed by said J. T. Hay under decree of this court, and at a sale thereunder Wm. H. Lyles purchased the lands, and from him the plaintiffs derive title.

The only claim set up by the defendants in this action, by which they seek to defoul or cast a cloud upon the title of the plaintiffs, is that in the original proceedings of George W. Barnes and Sarah, his wife, against Henry C. Barnes et al., the court did not obtain jurisdiction of the persons of the minor defendants, in that, while the record shows that the summons was regularly served upon the minors, said record does not show that said summons was served upon the father, mother, or guardian of such minors; and it is alleged now that unless such fact appears upon the record the court is without jurisdiction. It would be a very technical construction of the statute to so hold, especially after the lapse of 25 years, and disturb rights vested under a decree of this court on no other or higher grounds. There is no doubt that all of the parties, the parents and the minor children, were in court, proceedings seem to have been careful and orderly, there is no pretense of surprise, advantage taken of any one, or fraud. All presumptions are in favor of the regularity of proceedings in this court. I must presume that the court inquired into the regularity of everything, especially in the absence of any evidence showing affirmatively any irregularity; for, while the record may not show that the summons was served on the parent or guardian of the minor, it does not show affirmatively that it was not so served. The decree of October 21, 1875, is a judgment of this court, and, in my opinion, is conclusive of all questions that should or could have been raised by any of the parties then before the court.

But, in addition to this, all of the parties were again before this court in the case of J. T. Hay, assignee, and W. D. Trantham, Agent of Creditors, v. Geo. W. Barnes et al., in 1880 and 1881, in which action the same property rights were involved. No question is made before me as to the regularity of the proceedings in that action, so that the defendants are certainly estopped and bound by the judgment therein.

It is the judgment of the court:

1. That the plaintiffs are the owners in fee of the lands described in the complaint herein.

2. That the defendants, and none of them, have any right, or title, or claim in or to any of the lands described in the complaint.

3. That the defendants, and each and every one of them, be enjoined from asserting or in any manner setting up, any claim or title to said lands, in disparagement of the title of plaintiffs.

4. That the defendants pay the costs of this action .

L. A. Wittkowsky, of Camden, and Wm. H. Lyles, of Columbia, for appellants.

David E. Anthony, of Washington, D. C., and J. Fraser Lyon, of Columbia, for respondents.

HYDRICK J.

This action was brought in the court of common pleas for Kershaw county, in March, 1900, and was heard by Judge Townsend, who rendered his decree, dated September 12, 1900. The decree and the stipulation of counsel upon which the issues were submitted to the court will be reported. Judge Townsend states clearly the history of the litigation, the issues made by the pleadings, and that upon which defendants specially relied in argument before him. There was no appeal from his decree, and nothing was done by defendants to obtain relief from it, until 1916, when they applied to Judge Mauldin, at his chambers, in Richland county, for the order appealed from. The first order, dated February 11, 1916, permits defendants to take the deposition of their mother, to perpetuate her testimony, to be used in the defense of this action, if the court should grant their proposed motion to open the judgment and allow them to defend anew, or, in the prosecution of another action to recover the land, on the falling in of the life estate of their mother if that should be allowed. The second...