Cathcart v. Hopkins
| Decision Date | 11 April 1922 |
| Docket Number | 10853. |
| Citation | 112 S.E. 64,119 S.C. 190 |
| Parties | CATHCART ET AL. v. HOPKINS ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Fairfield County.
Motion by T. M. Cathcart and others to set aside a judgment for Samuel Cathcart, committee of John H. Cathcart, lunatic, since deceased, against Lucius Hopkins and others, and to set aside all sales and proceedings thereunder. From a decree refusing the motion, movants appeal. Affirmed.
The circuit decree referred to in the opinion is as follows:
This is a motion by Thomas M. Cathcart, Mary A. Cathcart, and William M. Cathcart, as heirs at law of John H. Cathcart, deceased to set aside the judgment or decree of the court made in the above-entitled cause, and all sales and other proceedings had thereunder. Copies of the notice of this motion, with affidavits, and grounds of the motion, were served upon John W. Lyles, the present clerk of court of common pleas for Fairfield county, and sundry other parties, who were purchasers of the real estate of John H. Cathcart, deceased sold under the decree rendered in the above-entitled cause or intermediate or remote grantees of purchasers at said sale.
The motion was heard by me at the September, 1919, terms of the court for Fairfield county upon the notice and grounds served, together with the record of the judgment in said cause, and affidavits and testimony taken under the order of reference previously made in this proceeding.
The movants are the heirs at law of John H. Cathcart, deceased who departed this life on or about the 1st day of January, 1908, and the respondents in the motion are John W. Lyles, clerk of the court, together with the purchasers or their intermediates or remote grantees of the real estate formerly belonging to John H. Cathcart, deceased, and sold under the decree of the court in the above cause, as hereinabove stated.
The movants assailed the validity of said decree upon 72 grounds set forth in the notice of motion, but many of the grounds consist of repetitions of other grounds in different phraseology. The general grounds upon which the movants seek to have the decree and judgment of the court set aside, as well as the sales and other proceedings had thereunder, are: First, that the court of common pleas did not have jurisdiction of the person of the said John H. Cathcart at the time of the rendition of said decree. Second, that the plaintiff Samuel Cathcart was not the duly appointed committee of the said John H. Cathcart, and had not authority to bring said action. Third, that the appointment of the said Samuel Cathcart as committee was null and void, and was in violation of the provisions of the Constitution of the United States, and of the state of South Carolina. For a proper understanding of the questions raised on this motion, it will be necessary to make a brief statement of the facts appearing from the records and evidence offered before me.
It appears that on or about the 23d day of June, 1874, Samuel Cathcart and Thomas B. Madden, the brother and brother-in-law, respectively, of John H. Cathcart, filed their petition in the court of probate for Fairfield county, alleging that the said John H. Cathcart had been so deprived of his reason and understanding that he was not fit and unable to govern himself or to manage his affairs, and praying that a commission de lunatico inquirendo might be issued out of said court to fit and competent persons, authorizing them and requiring them to inquire into the lunacy of the said John H. Cathcart. This petition was accompanied by affidavits of H. L. Elliott and R. J. McCauley, from which affidavits it appeared that the said John H. Cathcart was at that time incapable of governing himself or properly attending to his own affairs in consequence of his insanity.
On hearing said petition, the probate court for Fairfield county ordered that a commission in the nature of a writ de lunatico inquirendo be issued in the usual form, directed to J. M. Elliott, James Beaty, H. A. Gailliard, George H. McMaster, and Isaac N. Withers, directing them to inquire into the lunacy of the said John H. Cathcart. This commission directed the sheriff of Fairfield county to summon a jury of 24 men to attend at the courthouse in Winnsboro, S. C., on the 30th day of June, 1874, then and thereupon their oaths to inquire into the lunacy of the said John H. Cathcart, and all of such matters and things as should then be given to them in charge. At the time appointed, testimony was taken before the jury, including medical testimony, and on the same day the jury return its verdict whereby it found "that the said John H. Cathcart at the time of making this inquisition is a lunatic and of unsound mind and does not enjoy lucid intervals so that he is capable of the government of himself or the management of his messuages, lands, tenements, goods, and chattels, and that he has been in the same state of lunacy for the space of about two years last past and upwards, but how the said John H. Cathcart became lunatic the jurors aforesaid know not unless by the visitation of God."
The jury also found that the said John H. Cathcart was seized and possessed of 17 or more tracts or parcels of land, together with certain personal property therein mentioned and described.
On the 27th day of August, 1874, the judge of probate upon said inquisition made an order that the return of the commission be accepted and confirmed, and that a committee of the person and estate, both real and personal, of the said John H. Cathcart, be appointed. On or about the same date, Samuel Cathcart filed his petition in the probate court for Fairfield county, praying that he might be appointed the committee of the person and estate of the said John H. Cathcart, upon his entering into bond with approved sureties in such sum as might be deemed meet and proper. The record is entirely silent as to whether a copy of this petition was ever served upon the said John H. Cathcart.
On the 28th day of August, 1874, on hearing said petition, the probate court made an order fixing the 2d day of September, 1874, as the time for an examination to be made as to whether the petitioner, Samuel Cathcart, was a proper and suitable person to be appointed the committee of the person of the said lunatic, and also the value of the personal estate, and the value of the real estate of said lunatic, and it was ordered that a copy of said order be served upon Mrs. Nancy Cathcart, the wife of the said John H. Cathcart, in order that she might show cause why the prayer of the petitioner should not be granted, and to take such part in said examination as she might be advised or think proper.
After taking full testimony as to the fitness of the said Samuel Cathcart to be appointed committee of the person and estate of John H. Cathcart, an order was made dated the 2d day of September, 1874, appointing the said Samuel Cathcart as such committee upon his entering into a bond with two or more approved sureties in the penal sum of $21,000, conditioned for the honest and faithful performance of his trust.
The bond required by said order was subsequently given and filed by the said Samuel Cathcart.
On the 3d day of October, 1874, the said Samuel Cathcart, committee of the estate of John H. Cathcart, lunatic, commenced his action in the court of common pleas for Fairfield county against Lucius Hopkins, Amos T. Dwight, and Edwin L. Trowbridge, copartners under the firm name of Hopkins, Dwight & Trowbridge, and Samuel B. Clowney, clerk of court of common pleas for Fairfield county.
Service of said summons and complaint, as appears from the record, was duly accepted by both the parties defendant.
Among other things, it is alleged in the complaint that the plaintiff Samuel Cathcart had recently been appointed committee of the person and estate of John H. Cathcart, who had been judicially declared a lunatic in the probate court for Fairfield county. It was further alleged in the complaint that the estate of the said lunatic consisted of certain personal property therein described, and also 18 tracts or parcels of land.
It was further alleged that the indebtedness of said lunatic was very large, amounting to the best information of the plaintiff to at least the sum of $50,000, and the creditors of said lunatic, whose claims were due, were pressing for judgment, and that many of them were threatening separate suits for the collection of their respective claims by levy and sale.
It was further alleged that the defendants were mortgage creditors of the said lunatic. The plaintiff therefore demanded judgment that a homestead be set off to said lunatic and his family, and that the creditors of said lunatic be enjoined from suing on their respective claims, and that they be required to come in and establish them before a referee to be appointed by the court in that proceeding, and that the proceeds of the sale of the estate of said lunatic, after the payment of the costs and expenses, be applied to the satisfaction of liens and other claims according to the respective rights of the parties. This action has practically one to marshal the assets of the estate of said lunatic, so that the proceeds of the sale could be equitably paid and administered.
An order or reference was thereafter made by Judge Mackey whereby it was referred to Henry A. Gailliard, Esq., to ascertain and report as to the truth of the matters alleged in the complaint, and more especially to inquire and report as to the propriety of the sale of all the real and personal estate of said lunatic, as prayed for in said complaint. Said referee took testimony and made his report to the court, from which it appeared that he had examined the pleadings in ...
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