Garvin v. Garvin

• Decision Date: 25 November 1887
• Citation: 4 S.E. 148,27 S.C. 472
• Parties: GARVIN v. GARVIN.
• Court: South Carolina Supreme Court

4 S.E. 148

27 S.C. 472

GARVIN v. GARVIN.

Supreme Court of South Carolina

November 25, 1887

Appeal from court of common pleas, Aiken county; COTHRAN, Judge.

John Garvin, plaintiff, sued R. C. Garvin, defendant, to recover a tract of land. Judgment for plaintiff, and defendant appealed.

G. W Croft and Henderson Bros., for appellants.

Izlar & Glaze and P. A. Emanuel, for respondent.

MCGOWAN J.

This was an action to recover a tract of land in Aiken county. In order to be intelligible, it will be necessary to make a short statement. Both the plaintiff and defendant claimed under Robert Garvin, the brother of the plaintiff and the father of the defendant,--the plaintiff, under a deed from the sheriff, who sold the tract in dispute, along with others, as the property of Robert, under a judgment and execution of the plaintiff, January, 7, 1878; the defendant claimed under a deed direct from his father, Robert, prior to the aforesaid sheriff's sale, viz., April 15, 1874. The principal question, therefore, was whether the plaintiff's judgment had a lien upon the land when it was conveyed by Robert to his son, in 1874. There had been a long litigation between the brothers, John and Robert, as to the validity of a certain judgment (John Fox v. Robert Garvin, John Garvin et al.) originally entered as far back as 1868, upon which John claimed to have paid $1,836.60, as surety of Robert, and to that extent to be the owner of the judgment by subrogation. In this view, John had the (Fox) judgment levied upon the property of Robert, who thereupon instituted proceedings on the equity side of the court against John, for the double purpose of enjoining the enforcement of the Fox judgment, on the ground that he (John) was one of the principals and the judgment was in fact paid, and also for "an account" to a large amount. John answered that he was only surety in the Fox judgment, and that he was entitled to enforce it, for what he had paid on it, $1,836.40, and that he owed Robert nothing on "the account claimed." He prayed that the complaint should be dismissed, but asked for no affirmative relief. The issues of law and of fact were referred to J. M. Williams, Esq., as referee, who found the principal facts for John; that he was only surety on the Fox note, and that he owed Robert nothing and "the defendant [John] should have leave to enforce said judgment, to the amount contained in his said execution with interest from its date," etc. Exceptions were filed, and the cause was heard by Judge REED, who, on September 14, 1877, filed the following decree: "On reading and filing the report of J. M. Williams, Esq., special referee herein," etc., "it is ordered that the exceptions be overruled, and the report of the referee be confirmed, and the plaintiff have leave to enter judgment in accordance therewith, and the same become the judgment of this court," etc. Upon this decree judgment was enrolled and execution issued by John, the defendant, under the title of the case in which it was rendered, viz., Robert Garvin v. John Garvin. The lands were sold under this execution, and purchased, as before stated, by the plaintiff, (John,) on January 7, 1878. Robert Garvin afterwards made a motion to set aside the execution, and the sales under it, which was denied by Judge PRESSLEY; and upon appeal to this court his order was affirmed. See Garvin v. Garvin, 21 S.C. 84, where a short history of the case is given.

In that case this court held as follows: "Was the execution under which the sales were made so irregular and illegal as to avoid the sales? It seems to us that, when properly understood, the objections are purely technical, and amount to this: that the execution was called by the wrong name. The judgment entered in the case of Robert Garvin v. John Garvin authorized the defendant (John) to issue execution against the plaintiff (Robert) for the sum of $1,836.65, with interest thereon from May 9, 1876, on the judgment of Fox v. Robert Garvin, assigned to the defendant, and that the defendant do recover of the plaintiff the further sum of $472.40, costs, etc. Was this not a judgment on a money decree for $1,836.65, and the further sum of $472.40? The execution issued for the precise sum authorized, but entitled of the case out of which it arose, Robert Garvin v. John Garvin, and not of the old Fox judgment for the use of John. We incline to think the execution was properly entitled of the case in which the judgment was rendered. But suppose it had been styled (as contended it should have been) 'John Fox, for the use of John Garvin,' how could that have benefited Robert Garvin? *** The execution was certainly to issue, whether it went in the old name or put into a new form, to enforce judgment for the money paid by John, being, however, for the identical amount due on the old execution by Robert. We think the execution was authorized by the enrolled judgment, and that it properly retained the title of the judgment upon which it was based. But, even if there was a misnomer as to the title, that could not be more than an irregularity, which did not render the execution absolutely void;" citing authorities.

The sales being thus affirmed, John Garvin, as purchaser, brought suits to recover the different tracts of land. He found the defendant R. C. Garvin in possession of the "Mill Tract," claiming as stated under a deed from Robert, older than the judgment in the case of Garvin v. Garvin, under which the plaintiff purchased. He interposed several defenses, and, among others, the statute of limitations; but he first made the point that John Garvin, having obtained judgment against Robert for the amount alleged to have been paid by him as surety in Fox v. Robert Garvin, that older judgment was superseded and merged into that of Garvin v. Garvin, which, of course, acquired a lien on the property of Robert only from the time of its entry, December 10, 1877. The cause came on for trial before Judge COTHRAN, who took the view of the defendant and granted a nonsuit upon the ground that the plaintiff John, having accepted, without appeal, the relief given by Judge REED'S order, for the money paid as surety for Robert in the case of John Fox v. Robert Garvin et al., could not now set up the older lien of the Fox judgment, which was merged into the later judgment of Garvin v. Garvin, in which his claim for money paid was adjudicated, etc. From this order the plaintiff appeals upon the following grounds: "(1) Because his honor erred in deciding that the judgment of John Fox v. Robert Garvin et al. was merged in the judgment of John Garvin v. Robert Garvin, entered under Judge REED'S order; and his honor also erred in holding that said judgment had lost its lien, upon the tract of land that was sold by Robert Garvin to the defendant. (2) Because it is submitted that the judgment entered under the order of Judge REED preserved the lien of the Fox judgment upon all the lands owned by Robert Garvin at its date, and authorized the issuing of the execution under which the land in dispute was sold; and that, even if such execution was unauthorized, then the sale of the land might be referred to the execution of John Fox and J. H. Livingston, his assignee, for the use of John Garvin v. Robert Garvin et al., issued under the transcript of judgment, etc., and his honor erred in not so deciding. (3) Because it is submitted that the case, as proved, shows a legal title to the land in dispute in the plaintiff, and, the trespass on the part of the defendant having also been proved, the case should have gone to the jury, and it was therefore error to dismiss the complaint."

The only question in the case presented is whether it was error to hold that the judgment of Fox v. Robert Garvin et al. was merged into...