Ex parte Darby

• Decision Date: 30 July 1930
• Docket Number: 12957.
• Citation: 154 S.E. 632,157 S.C. 434
• Parties: Ex parte DARBY. v. SMITH et al. BRANYON
• Court: South Carolina Supreme Court

154 S.E. 632

157 S.C. 434

Ex parte DARBY.

BRANYON v. SMITH et al.

No. 12957.

Supreme Court of South Carolina

July 30, 1930

Appeal from Common Pleas Circuit Court of Anderson County; W. H Townsend, Judge.

Ex parte petition by Talulah Darby to vacate and set aside judgment rendered in the action of William Branyon individually and as administrator cum testamento annexo of Thomas M. Branyon, deceased, against Lucinda Smith and others. From a decree dismissing the petition, petitioner appeals.

Affirmed.

The decree of Judge Townsend, directed to be reported was as follows:

This matter comes before me on petition and motion of Talulah Darby to vacate and set aside a judgment rendered on February 3, 1905, in court of common pleas for Anderson county in the case of Wm. C. Branyon, individually and as administrator cum testamento annexo of Thos. M. Branyon, deceased, plaintiff against Lucinda Smith, Talulah Darby, et al. For the sake of clearness, it will be necessary to have some knowledge of the facts of the case leading up to the judgment (February 3 1905) sought to be vacated in this proceeding. Thos. M. Branyon died the 15th day of April, 1882, leaving a will, which was admitted to probate on the 16th day of June, 1882. The will is as follows (omitting formal and irrelevant parts):

"Item 1. I give, devise and bequeath to my beloved son, Wm. Calhoun Branyon, all that tract of land situate in Honea Path Township, containing 180 acres, more or less, being a part of the home tract whereon I now live (then gives description of this tract of land).

"Item 2. I will and bequeath to the children of my said son, Wm. Calhoun Branyon (if he has any) the other portion of my home tract of land, containing 170 acres more or less (then gives description of this tract of land). If my said son should die without children then I desire this tract the first being given to my son to go to John M. G. Branyon's heirs the other tract to Martha Shirley's heirs.

"Item 3. I will devise and bequeath to my said son my other tract of land known as the Westly Greer place, containing 117 acres, more or less, if I do not sell the same in my life time and if I do the proceeds I will to go to him.

"Item 4. All the rest and residue of my property of what kind so ever not herein before enumerated I will to my said son W. C. Branyon including notes and accounts and all other property."

Testator left as his sole heirs at law his widow, Lucinda Branyon, and his son, Wm. C. Branyon. The testator in his will made no provision for his wife. She and her son made an agreement as to her rights in the estate. At the time of the execution of the will and at the death of testator, Wm. C. Branyon had no children and was unmarried. John M. G. Branyon, a brother of Thos. M. Branyon, predeceased Thos. M. Branyon; and Martha Shirley, a sister, died in 1888, after the death of Thos. M. Branyon. Wm. C. Branyon married June 8, 1889, and thereafter, on March 16, 1890, a son was born, named Wm. Sherwood Branyon. In 1904 Wm. C. Branyon, individually and as administrator cum testamento annexo, commenced an action against Lucinda Smith, Talulah Darby, et al. All persons who could possibly have had an interest under the will of Thos. M. Branyon were made parties defendant, or at least their names appeared in the caption of the summons and complaint. The firm of Bonham & Watkins represented the plaintiff. The firm of Tribble & Prince represented Elizabeth C. Branyon, who was guardian ad litem for Wm. Sherwood Branyon, an infant then about 5 years of age, T. Frank Watkins, Esq., was guardian ad litem for all of the other infant defendants. The complaint is lengthy, and the court deems it unnecessary to set out the complaint in full. The formal parts of the complant, including a chronology of all of the interested parties to the action, are contained in the first thirteen paragraphs. The allegations of the complaint pertinent to the issue in this proceeding are as follows:

"Paragraph 14. That the plaintiff, William C. Branyon, is the owner in fee simple of the land hereinbefore described, but a question has arisen as to the proper construction of the will of the said T. M. Branyon hereinbefore set out, and it is claimed that the defendants have some interest either vested or contingent in said land, and by reason thereof, a cloud has been cast upon plaintiff's title, preventing him from making an advantageous sale of the said lands, or any portion thereof.

"Paragraph 15. That the plaintiff had brought this action for the purpose of having the Court to construe the will hereinbefore set out, and also to procure the decision of the Court as to plaintiff's rights and title to the land in dispute, and to have the cloud removed from plaintiff's title.

"Paragraph 16. That the lands hereinbefore described are farming lands, and are situated near the growing Town of Honea Path, S. C., and can be disposed of in lots to great advantage, and made thereby to yield a much larger revenue than plaintiff now obtains therefrom. That if the Court should decide that plaintiff is not the fee simple owner of said premises, or any portion thereof, plaintiff desires to be allowed to sell off lots from the premises from time to time as may be found advisable, and to reinvest the funds under order of the Court.

"Wherefore plaintiff prays:

"1. That the absent defendants be served with a summons and complaint herein by publication.

"2. That a Guardian ad Litem or Guardians ad Litem be appointed to represent the minor defendants.

"3. That the Court construe the will set out in the complaint, and determine what interest plaintiff has in the property described therein under the terms thereof.

"4. That the plaintiff be declared the owner in fee simple of the premises described in the Complaint, or

"5. If the plaintiff should not be declared to be the owner in fee simple of said premises, that he have leave to sell off lots from time to time, under the direction of the Court, as may be found advisable, and to reinvest the proceeds in such property and under such terms as to the Court may seem proper.

"6. For such other and further relief, as may be just and for costs."

The case was heard by Special Judge C. C. Featherstone, who decreed that Wm. C. Branyon was the owner in fee simple of all the lands described in the complaint. The judgment was entered and duly enrolled February 3, 1905, in court of common pleas for Anderson county. No appeal was taken from this judgment.

The movant, Talulah Darby, is seeking in this proceeding, commenced March 12, 1928, to have the decree of Judge Featherstone vacated. In form, she is a making a direct attack by motion in the original case. The rule to show cause was issued by Special Judge L. E. Croft, requiring the defendants (respondents) to show cause why the judgment should not be vacated and set aside as to Talulah Darby. The rule to show cause was bottomed on the verified petition of Talulah Darby. She alleges that she was never served with summons and complaint or other process, and that she was ignorant of all proceedings in the original case, and that she did not hear of same until after the death of Wm. C. Branyon, who died in 1927. She also served further notice of motion in November, 1928, on the additional ground that the court had no jurisdiction of the subject-matter.

The defendants (respondents) J. Furman Evans, town of Honea Path, S. C., J. M. Mitchell, R. R. Gambrell, C. L. Lollis, A. M. Graham, H. A. Wiles, L. W. Davis, H. B. Roper, Blanche Tice, and Elizabeth C. Branyon made return to the rule, alleging, in substance:

(1) That Talulah Darby was properly before the court in the original case, having been duly served with summons, and that she is now concluded by the judgment rendered in said action.

(2) That said judgment should not now be vacated, no proceeding to vacate having been commenced within three years from the rendition and enrollment of said judgment, and that section 831 of volume 1 of the Code of 1922 is a bar to this proceeding, and said statute is specifically pleaded as a bar.

(3) The ten-year statute of limitations.

(4) Estoppel.

(5) Laches.

(6) That respondents are innocent third parties having purchased and improved the lands since the original judgment was rendered and in reliance of the validity of said judgment.

(7) That movant has no meritorious claim.

(8) That Wm. C. Branyon died during the year 1927, and that his personal representative should be made a party, and that the judgment cannot be attacked without notice to his personal representative.

It was referred to H. E. Bailey, probate judge, as special referee, to take the testimony. The matter was heard by me on the testimony taken and reported by the referee.

Upon call of the case for argument, the movant, Talulah Darby, through her attorney, moved the court to set aside and to declare null and void the judgment and decree of his honor, Special Judge C. C. Featherstone, for lack of jurisdiction of the subject-matter. Two questions confront the court for answer: First, should the judgment be declared null and void for lack of jurisdiction of subject-matter? Second, should the judgment be set aside as to Mrs. Darby for lack of jurisdiction of her person; she claiming not to have been served with process?

The movant claims that the court was without jurisdiction to construe the will and to determine the quantity of the estate therein created, and relies upon the statement in Bussy v. McKie, 2 McCord, Eq. (7 S.C. Eq.) 23, 16 Am. Dec. 628: "Equity will not entertain jurisdiction merely to construe a will. Nor will it entertain jurisdiction of a cause involving titles to land *** no other equity existing."

The r...