Brothers v. Clarke

• Decision Date: 26 April 1882
• Citation: 17 S.C. 313
• Parties: WITTE BROS. v. CLARKE.
• Court: South Carolina Supreme Court

17 S.C. 313

WITTE BROS.

v.CLARKE.

Supreme Court of South Carolina.

Apr. 26th, 1882.

1. The Court of Common Pleas has concurrent jurisdiction with the Court of Probate in cases of dower. Therefore, after action commenced in the Common Pleas for the foreclosure of mortgages on a tract of land, and notice of lis pendens filed, the Court of Probate cannot entertain jurisdiction of a petition by the widow of a former owner for dower in such land.

2. The rights of the mortgagees against a decree in the Court of Probate granting dower on such petition, are not affected by an application subsequently made by them in that Court for leave to become parties and refused upon the ground that the cause had ended, nor by their failure to appeal from such refusal or from the decree for dower.

3. No person can appeal from a decree of the Court of Probate, except parties to the cause. They are the only “persons interested” in such decree, or that could be “injured thereby,” within the meaning of section 57 of the Code of Procedure.

4. A mortgagee, put by the mortgagor in possession of the mortgaged premises for the purpose of having the rents applied to the interest due on the debt, must account for such rents, and, if so put in possession before her assignmnent of the mortgage to third persons, must credit the same on the debt.

5. Where a testator, who died in 1861, bequeathed to his daughter a sum of money which was not to be delivered until the executor had caused the same to be secured to such daughter, free from the debts, control, etc., of any husband she might marry, the executor in 1869 could properly pay over this legacy to the daughter herself, then a married woman, the constitution of 1868 having effected that which the testator directed.

6. This money being lent to the husband under the security of his mortgage deed, the wife could assign such mortgage to secure the payment of debts due by the husband. Pelzer, Rodgers & Co. v. Campbell & Co., and Clinkscales v. Hall, 15 S. C., 581and 602 approved.

7. The fact that the marriage took place prior to 1868 does not affect the rights of the wife in this matter, no other rights having meanwhile become vested. Witsell v. Charleston, 7 S. C., 88,approved.

8. Money of a wife lent to the husband to be accounted for by him when required so to do, is an interest-bearing demand from its date.

9. The rule requiring a creditor holding two liens to first exhaust that property on which a subsequent creditor has no lien, is inapplicable where its enforcement would operate to the prejudice of the prior creditor.

10. A decree is valid, although not filed within sixty days from the last day of the term of court at which the cause was heard. Koon v. Munro, 11 S. C., 140.

Before WALLACE, J., Kershaw, June, 1879.

Action by George W. Witte and Armin F. Witte as Witte Bros. against T. H. Clarke, Sallie L. Clarke, T. W. Lang, Harriet M. Lang, L. McCandless, T. L. Boykin and several judgment creditors of T. H. Clarke, commenced March 6th, 1877. By supplemental complaint filed in September, 1877, Mrs. Louisa G. Clarke was made a party defendant. The nature of the action and the facts are fully stated in the opinion of this Court.

The Circuit degree was filed December 2, 1879. Omitting its statement of undisputed facts, it was as follows:

The supplemental complaint raises a question as to the validity of the judgment of the Probate Court adjudging that Louisa Clarke is entitled to dower in Green Hill plantation, and demands that she be required to establish her right to dower in this Court. This is asking in effect that the judgment of the Probate Court be treated as a nullity. This can only be done when it appears that the Court is entirely without jurisdiction of the subject matter in relation to which the judgment is pronounced. Jurisdiction in the allotment of dower is conferred by the constitution on the Probate Court. Errors of law by that Court, in a proceeding within its jurisdiction, can only be corrected by appeal in the manner provided by law. The right of appeal from the Probate Court may be exercised by any one “interested in any final order, sentence or decree,” of that Court. Any person desiring to exercise his right to have revised a proceeding in the Probate Court by the Circuit Court, must pursue the remedy established by law. There was no appeal in this case and the judgment is final and conclusive, and is proof of every fact necessary to support it. There is no proof of fraud or of secresy, nor want of proper parties.

The next question relates to the validity of the assignments by Sallie L. Clarke to Thomas W. Lang and Leslie McCandless. Burwell Boykin died in 1861, leaving his last will and testament, by which, among other things, he bequeathed to his daughter, Sallie L., the sum of four thousand dollars, which was to take effect upon her attaining the age of twenty-one years, or marrying, but which she was not to enjoy until it was secured to her free from the debts, liability, contracts and disposition of any husband she might have.

The manifest intent of the testator was to create a separate estate for the benefit of his daughter that could not be taken by the creditors of her husband, or in any way be alienated by him. This much was expressly provided for. Nothing was said in the will as to the power of Sallie L. to control or dispose of the bequest. At the time the will was executed, a married woman had no power to alienate, dispose of or pledge, for her husband's debts, her separate estate. This rule has been changed by the constitution of this State adopted in 1868. We must suppose that Burwell Boykin, if he intended that his daughter should have power to alienate her separate estate, would have expressly bestowed the power upon her, as without such bestowal under the law as it stood in 1861 she could not do so. The state of the law at the time, taken in connection with the omission by the testator to provide for any control of her separate estate by his daughter, forces the conclusion that he did not intend that she should control it. If she had remained unmarried until she attained the age of twenty-one years, then while sole she would have had the power to disposeof her beneficial interest and thus defeat the trust; but the moment she married, disability intervened.

The power of married women over their property rights is enlarged by the constitution of 1868, and the law enacted in pursuance of it. This trust, however, is unaffected by the change in the civil status of married women. When a contract is made it is presumed to be made with reference to the existing law applicable to its terms, and a subsequent change of the law does not affect the law of that contract in existence at the time it was entered into; so, in analogy to this rule, a trust created must be presumed to have been created with reference to the law as it existed at the time, and a subsequent change of the law leaves the trust unaffected by the change. I conclude, therefore, that the assignments of the mortgage by Mrs. Sallie L. Clarke to Lang and McCandless are void and of no effect. This debt of the separate estate of Sallie L. Clarke does not bear interest, the funds being in the possession of her husband.

Miss Harriett M. Lang, holding a mortgage of both Jumping Gully Creek plantation and Green Hill plantation, must first exhaust the proceeds of the sale of Jumping Gully Creek plantation and for any balance go upon the Green Hill plantation, after prior liens upon Green Hill plantation are extinguished.

It is ordered, adjudged and decreed, that the order enjoining Mrs. Louisa Clarke from proceeding to enforce her judgment of the Probate Court for dower in Green Hill plantation be set aside and vacated. That the assignment by Mrs. Sallie L. Clarke to Thomas W. Lang and Leslie McCandless are null, void and of no effect. That Green Hill plantation be sold and the proceeds of the sale be applied first to the costs and expenses of the proceedings in dower by Mrs. Louisa Clarke in the Probate Court. Next to the payment of the judgment in dower by that Court in favor of Mrs. Louisa Clarke. Next to the payment of four thousand dollars, without interest, to T. L. Boykin for the use of Mrs. Sallie L. Clarke. Next to the payment of the balance, if any, on the debt to Miss Harriet M. Lang, secured by mortgage bearing date 25th March, 1870, the proceeds of the sale of Jumping Gully Creek plantation being first applied thereto. Next to the mortgage debt of the plaintiffs herein. And next to the debt of Miss Harriet M. Lang, secured by mortgage bearing date 17th March, 1876. That Jumping Gully Creek plantation be sold and the proceeds be applied to the debt to Miss Harriet M. Lang, secured by mortgage bearing date the 25th March, 1870. That T. H. Clarke be barred and foreclosed of all equity of redemption in Jumping Gully Creek plantation and Green Hill plantation. That the parties or any of them have leave to apply at the foot of this decree for orders fixing the time and terms of sales ordered herein.

The exceptions to this decree are given in the opinion.

Messrs. Buist & Buist for plaintiffs.

Messrs. Leitner & Dunlap and W. G. DeSaussure for T. W. Lang.

Mr. J. T. Hay for Miss Lang.

Mr. J. H. Rion for T. L. Boykin and Mrs. S. L. Clarke.

Mr. L. F. Youmans, Attorney-General, for Mrs. Louisa G. Clarke.

Arguments of W. L. DePass, deceased, were read in behalf of Mrs. L. G. Clarke and L. McCandless.

The opinion of the Court was delivered by

MR. JUSTICE MCIVER.

This action was commenced by the plaintiffs for a foreclosure of a mortgage on certain real estate, known as Green Hill plantation, executed by the defendant T. H. Clarke, and the other defendants, except Mrs. L. G. Clarke, were made parties, as claiming to hold liens by mortgage and judgment on the same real estate. After the action was commenced, and after the filing of the notice of the pendency of the action, the defendant Mrs....