Bragg v. Thompson

• Decision Date: 22 August 1883
• Citation: 19 S.C. 572
• Parties: BRAGG v. THOMPSON.
• Court: South Carolina Supreme Court

19 S.C. 572

BRAGG

v.THOMPSON.

Supreme Court of South Carolina.

Aug. 22d, 1883.

1. A judgment rendered against a party at that time deceased, is void, notwithstanding his sole executor was a defendant in the same action, but in his individual capacity.

2. But an execution, regular in form, issued upon such void judgment, was a mandate to the sheriff, which it was his duty to obey, whether it proceeded from a court of general or limited jurisdiction, and he will be protected in everything done in the due and proper execution of such process.

3. A transcript of a trial justice's judgment having been docketed and enrolled in the Court of Common Pleas, an execution issued thereon, signed by the trial justice, but tested by the clerk of the Circuit Court under his official seal on the margin, was in proper form and a legal execution.

4. The purchaser, at a sale under such void judgment, may recover from the sheriff so much of the proceeds of the sale as had not been paid to the plaintiff in execution before notice had by the sheriff of any defect in the judgment.

5. A new trial nisi granted by this court.

Before WALLACE, J., Spartanburg, October, 1882.

This was an action by Jonas B. Bragg against W. W. Thompson and Roddy Landford, executor, commenced September 10th, 1880. The opinion states the case.

Mr. J. S. R. Thomson, for appellant.

Messrs. Bobo & Carlisle, contra.

The opinion of the court was delivered by

MR. JUSTICE MCGOWAN.

In May, 1877, one R. M. Smith, as administrator, obtained a judgment before Trial Justice A. B. Woodruff, Esq., for $74.47, against J. B. Landford, Roddy Landford and William Landford, defendants. A transcript of the judgment was filed in the clerk's office of the county, and execution issued thereon in the usual form, addressed to the sheriff of Spartanburg county, signed by the trial justice, but tested, “witness, F. M. Trimmier, clerk of the said court of Spartanburg, October 12th, 1877,” with the official seal of the clerk attached. At that time the defendant, W. Wash. Thompson, was sheriff of Spartanburg county, and, by direction of Smith, the plaintiff, he levied the execution on a certain tract of land as the property of William Landford, one of the defendants in execution, and sold the same at sheriff's sale; and it was bid off by one L. Landford, for $235, but he transferred his bid to the plaintiff, Bragg, who paid the bid and received sheriff's titles.

From the proceeds of sale thus received, the sheriff paid Smith, the plaintiff, $74.61, taking from him a refunding receipt for the amount paid to the trial justice, Woodruff, costs, $8.25; clerk's costs, $3.75; advertising, $2.80; his own costs, $9.28, and $25.00 to J. S. R. Thomson, on an order of Roddy Landford, executor, leaving in his hands the sum of $111.31, as to which the sheriff received notice from Roddy Landford, as executor, not to pay it out to any one except to him, as the sole surviving executor of William Landford, deceased. The sheriff testified that until after the above payments were made, “he had no knowledge or suspicion as to any defects in the judgment, and said payments were made in good faith and without notice.” Afterwards, upon some claim, the character of which did not appear, the said tract of land was recovered by one Elias Landford from the purchaser, Jonas B. Bragg, who thereupon commenced this action against W. Wash. Thompson, the sheriff, to recover back the purchase-money paid by him for the land so lost. The plaintiff was allowed to prove by parol that, at the time the suit was brought before the trial justice, two of the parties named as defendants were dead, viz., J. B. Landford and William Landford. It appeared that of the parties sued, only Roddy Landford was served, and that he was the sole surviving executor of William Landford.

The Circuit judge charged the jury that, if William Landford was dead, prior to the suit, the transcript judgment was absolutely void as to him, which rendered the sale of the land as his property also void, and the plaintiff had the right to recover the money, with interest, from the one who undertook to sell the land and received the money for the same; that in such sale the rule of caveat emptor did not apply; “that even if defendant paid out the money in good faith, and without knowledge of William Landford's death, he is still liable for the whole amount, and his only recourse was back upon those to whom he had paid the money; that there was a presumption in favor of the jurisdiction of the Court of Common Pleas, but no such presumption obtained in relation to trial justices' courts; that transcripts from such courts only had effect to authorize the sheriff to make such levy as the constable could not make; that the sheriff had no right, from what appears on this execution, to presume that such judgment and execution were regular and valid. When jurisdiction is wanting in a trial justice's court, the purchaser gets nothing, and is entitled to recover back the money paid. The presumption of all being right, does not apply to the execution in this case,” &c. Under the charge of the judge, the jury found for the plaintiff $269.06, the whole amount of the purchase-money, with interest, and the defendant, W. Wash. Thompson, appeals upon the following exceptions:

1. “In admitting testimony to show that William Landford was dead before the suit commenced against him.

2. “In ruling that such fact could be shown in a suit at law like the present.

3. “In charging that if William Landford was dead prior to said suit against him, the judgment was absolutely void and not worth the paper it was written upon.

4. “In charging the jury that if they find no summons had been served on William Landford, and that they are obliged so to find, then, as a legal consequence, the judgment and sale are void, and the plaintiff has the right to recover the money from the one who undertook to sell, and who received the money on such sale.

5. “In charging that at such sale the rule of caveat emptor does not apply.

6. “In charging that plaintiff was further entitled, upon recovery, to interest from commencement of the action upon the amount paid defendant.

7. “In charging that even if defendant paid out the money in good faith and without knowledge of Wm. Landford's death, he is still liable for the whole amount, and his only recourse is to recover from those to whom he has paid.

8. “In charging that none of the parties to whom defendant, W. Wash. Thompson, has paid money, are proper or necessary parties to this action.

9. “In refusing to charge that, under the facts and testimony in this case, the jury cannot find a verdict against W. Wash. Thompson in this action.

10. “In refusing to charge the jury that, under the facts and testimony in this case, the jury cannot find against W. Wash. Thompson a verdict for the money which in good faith and without notice he paid to R. M. Smith.

11. “In refusing to charge that it devolved upon Bragg to show that both himself and his assignor were ignorant of the facts, before Bragg can recover the $235 in this action.

12. “In refusing to charge that the defendant, W. Wash. Thompson, can in no event be held liable in this action for that part of the money paid out in good faith to Dr. R. M. Smith, before any notice from plaintiff, and without knowledge of the defect in the judgment.

13. “In refusing to charge that R. M. Smith is a necessary party to this action.

14. “In charging that the sheriff has no right, from what appears on this execution, to presume that said judgment and execution were regular or valid,...