Herndon v. Moore

• Decision Date: 09 January 1883
• Citation: 18 S.C. 339
• Parties: HERNDON v. MOORE.
• Court: South Carolina Supreme Court

18 S.C. 339

HERNDON

v.MOORE.

Supreme Court of South Carolina.

Jan. 9th, 1883.

1. The decision in Davenport v. Caldwell, 10 S. C. 317, that the legislature cannot confer upon Probate Courts jurisdiction in partition, affirmed.

2. Proceedings for partition regularly had in the Probate Court prior to November 27th, 1878, when the judgment in the case of Davenport v. Caldwell was filed, is binding upon all the parties concerned.

Per MCGOWAN, A. J.—

3. The legislature has no power as parens patrioe to authorize the Probate judge to sell or partition the property of one not sui juris, especially where the property is owned in common with others.

4. The jurisdiction given by the constitution to Probate Courts “in all matters testamentary and of administration,” does not include the right to make partition.

5. And “business appertaining to minors” in this grant of jurisdiction, means business peculiar to minors, and, therefore, does not include partition.

6. Adult parties to proceedings in partition in a court without jurisdiction, under which the lands are sold, and who receive the proceeds, are estopped from asserting title against the purchasers at such sale.

7. Communis error facit jus is a doctrine exceptional in character, but should be applied where the erroneous opinion has furnished the ground-work and substratum of practice, and has, to a large extent, affected the titles to land.

Before HUDSON, J., Union, March, 1881.

The facts of this case appear in the opinion. The Circuit decree, after a statement of these same facts, was as follows:

It seems to the court that the purchasers of these lands would have been proper parties to this cause, but as no objection has been taken by the pleadings to their non-joinder, I will consider the case as between the parties to the cause. The case discloses an equity in the plaintiff, which entitles her, as against her co-distributees, to a part of the relief which she demands.

The Court of Probate established by the constitution of 1868 was designed to take the place of the Court of Ordinary, but with enlarged powers. From the fact that the Court of Ordinary exercised jurisdiction in cases of partition within certain limits, no question was made of the right and power of the legislature to confer jurisdiction upon Courts of Probate, in cases of partition. The legislature of the summer of 1868, in their act organizing the Courts of Probate, conferred upon such courts jurisdiction in all cases of partition. No question was made of the constitutionality of this act. Lawyers in all parts of the State acted under it, Courts of Probate exercised this jurisdiction unchallenged, and the Circuit Courts recognized it and adjudged questions arising from such proceedings. Lands sold under orders of the Courts of Probate, realized the same prices as when sold under judgments of the Circuit Courts. The Supreme Court of this State recognized this jurisdiction in the Courts of Probate, and adjudged without question rights which arose out of such sales.

In McNamee v. Waterbury, 4 S. C. 156, a case of November Term, 1872, the Supreme Court was called upon to determine whether the Courts of Probate of this State could order the sale of the lands of a decedent in aid of assets, upon proper application by the administrator of an insolvent estate. The court held that the Courts of Probate did possess such power; and the titles of the purchasers at such sale were held to be valid. There was in this case a dissent by Chief Justice Moses; but in neither the opinion of the court nor in the dissenting opinion is there any suggestion of doubt as to the jurisdiction of the Court of Probate in matters of partition; and Chief Justice Moses used expressions which show that he considered the Court of Probate possessed of the jurisdiction theretofore exercised by Courts of Ordinary. It is manifest that if Courts of Probate could exercise jurisdiction to sell land in aid of assets, they could in all cases, when the lands sold for more than sufficient to pay the debts, indirectly accomplish partition among the heirs.

In the subsequent case of Hancock v. Caskey, 8 S. C. 282, the question was as to the ownership of the growing crop upon lands sold by the Probate Court for partition. The right thus springing wholly out of one of these sales is not questioned, but, on the contrary, the court, in their opinion, speak of the sale as a valid sale, of the parties as bound by the proceedings, and that a party to the cause was estopped from asserting in his own right, or as guardian for his children, any title to the growing crops.

It thus appears that not only the profession at large, and the Probate Courts, but the Circuit Courts and the Supreme Court have all recognized and acted upon a conceded jurisdiction to Courts of Probate in matters of partition. Communis error facit jus. Under this conceded and recognized jurisdiction, from 1868 to 1878, thousands of acres of land have been sold in all parts of the State, a vast amount of money invested, conveyances and reconveyances made, titles and rights vested; and innocent purchasers, acting under this common error, shared by legislatures, lawyers and courts, have become involved. I cannot think that the decision in Davenport v. Caldwell, 10 S. C. 317, can affect rights thus vested; that it can have any retroactive effect. The question of jurisdiction raised at a late stage of that case in the Supreme Court, as I have been informed, required from that court an examination of the question and a decision; but I am satisfied that the decision there made cannot have any retroactive effect—cannot undo what had been done without question in a vast number of cases in the Probate Courts generally throughout the State, with the sanction of the Circuit Courts and under the recognition of the Supreme Court.

Rights vesting under such circumstances cannot be disturbed by subsequent decisions of a contrary effect. In Gelpcke v. City of Dubuque, 1 Wall. 175, the Supreme Court of the United States held that holders of municipal bonds issued under an act of the legislature of Iowa, sustained by the courts of that State, were valid obligations notwithstanding a later decision by the Supreme Court of Iowa, that such act of the legislature was invalid. In delivering the opinion of the court, Mr. Justice Swayne quotes with approval the doctrine in the words of The Ohio Life and Trust Co. v. Debolt, 16 How. 432, as follows: “The sound and true rule is, that if the contract when made was valid by the laws of the State, as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation or decisions of its courts altering the construction of the law.” This rule is cited at length and approved in the Bond Debt Cases, 12 S. C. 282:“To hold otherwise would be as unjust as to hold that rights acquired under a statute may be lost by its repeal.”

In The State, ex relatione Brown, v. The Chester and Lenoir Railroad Company, 13 S. C. 290, it was held that the county commissioners of York had no power to issue certain railroad aid bonds, but having been issued and their issue approved by the Circuit Court, and the appeal from that decision dismissed by the Supreme Court, that the bonds could not now be affected by the want of authority to issue.

The same rule governs when rights of property and titles to land have become fixed by common acceptance and consent of courts and people. And settled rules cannot be reversed and vested rights disturbed, by a decision of the courts against the correctness of such construction. Such a decision only affects the case under consideration, and establishes a new rule for the future, but does not act retrospectively. I, therefore, think that this sale, having been made prior to the decision in Davenport v. Caldwell, should not be affected by that judgment.

The complaint prays that the sales be validated and confirmed, but, as the sales were void, this prayer cannot be granted. Nevertheless, rights may be vested under void sales, and rights have vested under these sales, which should be protected; and every party to the proceedings under which the sales were made is estopped from asserting the invalidity of the sale, or questioning the titles of the purchasers, unless prepared to restore things to the exact status of the day of sale. But this is just what the infant defendants allege cannot be done, because of the inability of their guardians to have the money forthcoming. In no case whatever would equity allow either minors or adults to retain the money and regain the land also. They would alike be estopped in this attempt. The parties to this cause should, therefore, be restrained from hereafter asserting any claim, title or interest in or to these lands by reason of any invalidity in the sales made by the Court of Probate.

It is therefore adjudged, that the plaintiff and all the defendants to this cause, the widow and children of the late Dr. John N. Herndon, late of Union county, deceased, be and they are hereby perpetually enjoined and restrained from ever bringing any action or suit to recover the possession of the lands of the said Dr. Herndon, or any tract or tracts or portions thereof, or any interest therein derived by inheritance from the said Dr. John N. Herndon, and from ever asserting any interest therein, or to any share or portion thereof, as distributees of the said Dr. Herndon, so far as the said lands were sold or pretended to be sold under proceedings instituted in the Court of Probate for Union county, in September, 1872, and in a cause entitled Caroline E. Herndon v. M. L. Moore and others.

Mr. David Johnson, Jr., for appellants.

On the point upon which the judgment of the court is rested, counsel's argument was as follows: The sales are admitted to be void. It is impossible to avoid the conclusion that...