Cumbie v. Cumbie

• Decision Date: 09 December 1964
• Docket Number: No. 18281,18281
• Citation: 139 S.E.2d 477,245 S.C. 107
• Court: South Carolina Supreme Court
• Parties: A. T. CUMBIE, Jr., Appellant, v. George CUMBIE, Ellen Cumbie Newberry, Juanita Cannon Cumbie, Johnny Raymond Cumbie, Juanita Cumbie, Bernice Enter Strong, Frank C. Enter and Minor Defendants over the age of Fourteen (14) Years, Oscar Bernard Cumbie, Dan Rhett Cumbie, Frannie Cumbie, and the Minor Defendant under the age of Fourteen (14) Years, Annette Cumbie, Respondents.

Page 477

139 S.E.2d 477

245 S.C. 107

A. T. CUMBIE, Jr., Appellant, v. George CUMBIE, Ellen Cumbie Newberry, Juanita Cannon Cumbie, Johnny Raymond Cumbie, Juanita Cumbie, Bernice Enter Strong,

Frank C. Enter and Minor Defendants over the age of Fourteen

(14) Years, Oscar Bernard Cumbie, Dan Rhett Cumbie, Frannie

Cumbie, and the Minor Defendant under the age of Fourteen

(14) Years, Annette Cumbie, Respondents.

No. 18281.

Supreme Court of South Carolina.

Dec. 9, 1964.

T. Kenneth Summerford, Florence, for appellant.

Connor & Connor, Shuler & Harrell, Kingstree, for respondents.

BUSSEY, Justice.

In this action plaintiff-appellant sought, inter alia, a partition in kind of two tracts of land, one containing approximately fifty acres and the other containing approximately fifteen acres, and, in the event that a partition in kind could not be had, for a partition by sale. The fifty acre tract of land was owned by Arthur T. Cumbie who died intestate in 1914, and the fifteen acre tract was set aside to the heirs of Arthur T. Cumbie, in 1958, as a result of a partition of a larger tract in which Arthur T. Cumbie owned an interest. At the time of his death Arthur T. Cumbie was survived by his widow, Lula Cumbie, and four children, namely: the appellant A. T. Cumbie, Jr., Ellen Cumbie Newberry, George Cumbie, and John Cumbie who subsequently died intestate in 1959, leaving as his heirs at law his widow, Juanita Cannon Cumbie, and six children, namely: Johnny R. Cumbie, Juanita Cumbie, Oscar B. Cumbie, Dan R. Cumbie, Frannie Cumbie, and Annette Cumbie, of whom the last four named were minors at the time of the commencement of this action.

The widow of Arthur T. Cumbie, Lula Cumbie, was remarried to one Charlie Enter and as a result of this marriage two children were born, to wit: Bernice Enter Strong and Frank C. Enter, an incompetent. Lula C. Enter died intestate in September 1961, leaving surviving her as her heirs at law all the parties to this action, her second husband having predeceased her.

Lula Cumbie Enter owned a one-third interest in the fifty acre tract of land as an heir of Authur T. Cumbie, which interest she conveyed to Ellen Cumbie Newberry by deed dated August 21, 1956. At the time of her death the only estate of which she was seized and possessed was an undivided interest in the fifteen acre tract of land acquired by the heirs of Arthur T. Cumbie by virtue of the partition deed aforementioned.

Located on the fifty acre tract was a four room house where Lula Cumbie Enter continued to live even during her marriage to Enter, and for a number of years she carried on a relatively small farming operation, apparently planting one acre of tobacco and four acres of cotton. With minor exceptions, Ellen Cumbie Newberry continued to live there with her mother all of her life. Ellen was thrice married, but her first two husbands lived only briefly and she married Newberry about 1950. All of her said husbands lived at the place. Lula Cumbie Enter suffered a stroke about the year 1943 and was thereafter more or less an invalid until her death in 1961, being cared for by Ellen. Although the record shows that for several years Ellen and her husband, Newberry, took charge of the small farming operation, it is readily inferable that Lula Cumbie Enter received all of the benefit thereof and more besides, since there is not even a suggestion in the record that she had any other source of income. Mr. Newberry for the most part was employed away from home.

Although disputed by the plaintiff-appellant, the clear weight of the evidence is that Ellen Cumbie Newberry, with the approval of her mother and all of the heirs of Arthur T. Cumbie and at her own expense, rebuilt the Cumbie residence from the ground up as the old home had become too dilapidated for occupancy, and, in addition, enlarged the same and built certain outbuildings.

At some time, apparently about 1950, the appellant built a small house on the fifty acre tract of land with the permission of the other heirs of Arthur T. Cumbie, but thereafter, without any partition of the real estate, sold the same to his brother John who considerably improved and expanded the same, including the building of certain outbuildings.

According to an answer filed by her, about which more will be said later, Bernice Enter Strong at some unspecified date erected upon the fifty acre tract of land, with the consent and approval of the heirs of Arthur T. Cumbie and at her own expense, a residence.

When Lula Cumbie Enter died in 1961 the expenses of her last illness and funeral amounted to $1,141.73. Following the death of Mrs. Enter, Mrs. Newberry, for the purpose of paying such expenses, with the cooperation of her brother George Cumbie, sold certain timber cut principally from the fifty acre tract, for which she received the sum of $1,012.06, all of which was applied to the payment of said expenses.

The balance of the expenses was paid by Mrs. Newberry, she using in part for such purpose proceeds of an insurance policy in the amount of $64, upon which said policy Mrs. Newberry had paid the premiums. This manner of clearing up the debts of Mrs. Enter apparently met with the full approval of everyone concerned except the appellant. He testified that he did not want the timber sold, would not give his permission thereto, and offered to pay one-third of his mother's expenses. There is no evidence, however, that he paid or actually attempted to pay any part thereof. Appellant's complaint prayed that Mrs. Newberry and George Cumbie be required to give an accounting with respect to the aforementioned timber.

The cause was duly referred to special referee who, after a reference, filed a report wherein he recommended that the accounting just above referred to be denied; found that the real estate could be partitioned in kind, and recommended that a writ of partition be issued in accordance with the law. He further concluded that Bernice Enter Strong, Ellen Cumbie Newberry, and the heirs of John Cumbie should have set apart to them the improvements made upon the land, and that such improvements not be taken into consideration as portions of their respective interests in the land.

Only the appellant excepted to the report of the special referee, and, in a rather brief order, the circuit court recited that the fifteen acre tract of land had already been sold by consent of counsel; ordered that a writ of partition be issued, and further ordered that in the event the commissioners decided that the fifty acre tract could be divided in kind, without material injury to the rights and interests of the parties, the portions of Ellen Cumbie Newberry Bernice Enter Strong, and the heirs at law of John Newberry (John Cumbie) 'be surrounding the improvements they made and that the improvements of these defendants not be considered as a part of their interest in the land, giving credit to them for the improvements they made on the common property; * * *.'

The special referee did not separately state his findings of fact and conclusions of law. The order of the circuit judge did not contain any findings of fact, nor does it purport to confirm the referee's report in its entirety. In addition, the order of the circuit court makes no mention of certain exceptions to the report of the referee.

The appeal here is from the order of the circuit judge, and a number of the exceptions are either not properly framed, or not properly addressed to this court, all of which circumstances combine to make the task of this court, at the best, tedious and difficult. We have, however, endeavored to state the facts accurately and fairly, and will endeavor to determine the issues properly before this court.

The record will reflect that certain pertinent and very important matters have been overlooked, at least to some extent, by the special referee and apparently totally overlooked by the circuit judge and counsel. Because of the fact that there is one mentally incompetent person and several minors who are defendants-respondents here, we now go into these matters ex mero motu, before proceeding to consider the exceptions of the appellant.

It is the duty of the court, as well as that of the guardian ad litem and his attorney, to see that the rights of minors and incompetents are protected. Hodge v. Delaine, 137 S.C. 337, 135 S.E. 357. While the record indicates that a guardian ad litem was appointed for the incompetent and minors, it also appears that no answer was filed by such guardian ad litem on behalf of either the incompetent or the minor defendants. The minor defendants were all children of John Cumbie, deceased, and counsel did file an answer on behalf of all heirs of John Cumbie, naming them, but without any reference to the minority of some of them or to the appointment of any guardian ad litem for them. In this connection, the court calls attention to the cases collected in 11 West's South Carolina Digest, Infants, k85, dealing with the duties, liabilities and responsibilities of guardians ad litem. Particular attention is called to the cases of Cagle v. Schaefer, 115 S.C. 35, 104 S.E. 321, and McIver v. Thompson, 117 S.C. 175, 108 S.E. 411. It is quite apparent here that the guardian ad litem for the incompetent and the minor defendants treated the appointment as a pure formality, and, as far as the record goes, made no effort...