Holley v. Glover

• Decision Date: 14 July 1892
• Citation: 15 S.E. 605,36 S.C. 404
• Parties: HOLLEY v. GLOVER. SAME v. HOLLEY et al., (two cases.) SAME v. JACKSON et al. SAME v. FIELDS. SAME v. CLECKLEY et al. SAME v. BENTLEY. SAME v. CHAVOUS et al., (three cases.) SAME v. STAUBES. SAME v. HEATH. SAME v. CANNON. SAME v. GOINGS. SAME v. GREEN. SAME v. TWIGGS.
• Court: South Carolina Supreme Court

15 S.E. 605

36 S.C. 404

HOLLEY v. GLOVER.

SAME v. HOLLEY et al., (two cases.)

SAME v. JACKSON et al.

SAME v. FIELDS.

SAME v. CLECKLEY et al.

SAME v. BENTLEY.

SAME v. CHAVOUS et al., (three cases.)

SAME v. STAUBES.

SAME v. HEATH.

SAME v. CANNON.

SAME v. GOINGS.

SAME v. GREEN.

SAME v. TWIGGS.

Supreme Court of South Carolina

July 14, 1892

1. A wife is divested of dower in land owned by her husband in common with others by partition thereof in a suit to which her husband is a party, though she is not joined; and such is the case also where before the suit he had conveyed his undivided interest, he and his grantee, but not his wife being joined as parties.

2. Equity may order the sale of land for partition between tenants in common independently of Act 1791, the jurisdiction having been exercised prior thereto, and universally recognized; and hence it is immaterial to such power whether or not that act relates only to cases of intestacy.

Appeal from common pleas circuit court of Aiken county; JAMES F IZLAR, Judge.

Sixteen actions for dower by Elizabeth Holley against Stella A Glover and 15 others, which were tried and heard together.

Following is the agreed statement of facts:

"It is agreed by counsel representing the parties in the sixteen actions above stated that said actions be tried by the court in place of a jury, upon the following statement of facts and the pleadings: (1) That, previous to the year 1839 William H. Carey and Alfred Holley (who was the husband of the demandant in said actions) were the owners as tenants in common of all that tract of land now situate in the county of Aiken, but then in the districts of Edgefield and Barnwell, containing five thousand acres, more or less, known as the 'Hollow Creek Tract,' and including the various tracts described in the respective complaints in the foregoing actions. (2) That, said Wm. H. Carey having died, his son John L. Carey, by his next friend, D. J. Walker, instituted a suit in the court of equity for the district of Edgefield against the other heirs at law of said Wm. H. Carey, deceased, and Alfred Holley and Wise Holley, for the partition of the said Hollow Creek land; that in said suit a writ in partition was duly issued to commissioners pursuant to an order of the court and the statute in such case made and provided, who returned that it was best for the interest of all parties concerned that the land should be sold, and the proceeds divided, as justice could not be done by a division in kind; that upon said return one of the chancellors of the court, in term-time, by regular decree in said action for partition, ordered and directed that said tract of land should be sold by the commissioner of the court, and the proceeds divided between the parties according to their respective rights, which was stated in said decree; that pursuant to said decree the commissioner of the court, S. S. Tompkins, Esq., after due advertisement, at public outcry on sales day in January, 1849, sold said tract of land to John Holley for $4,175, and executed a deed of conveyance to him for the same; that said commissioner, after receiving said purchase money, divided and paid out the same among the parties to said suit pursuant to the provisions of said decree, and that said sale to said John Holley was duly confirmed by the court. (3) That the defendants in the aforesaid actions for dower now hold the various tracts of land described in the complaints in said actions from parties who trace their titles back to John Holley, who purchased from the commissioner as aforesaid. (4) That on the 5th day of March, 1841, Alfred Holley, by his deed of conveyance, conveyed to Wise Holley his undivided one-half interest in the Hollow Creek tract of land aforesaid, which said deed was duly executed and recorded at Barnwell courthouse. (5) That on the 6th of March, 1842, the sheriff of Barnwell district, in the case of Elisha Carson against Alfred Holley, sold the said Hollow Creek tract of land under judgments obtained prior to 5th day of March, 1841, and the same was bid off by Wise Holley for $30, but no deed to the same from the sheriff appears on the record. (6) That the demandant, Elizabeth Holley, was not a party to the proceedings in the partition heretofore mentioned, and received no proportion or share of the proceeds of sale of said premises, nor was any provision whatever made by the court in said proceedings for the assessment of the value or protection of the inchoate right of dower of said Elizabeth Holley. (7) The said proceedings in partition mentioned in paragraph two (2) hereof were instituted subsequently to the execution of the conveyance from Alfred Holley to Wise Holley, heretofore mentioned, and subsequently to the sale of said Hollow Creek tract of land by the sheriff of Barnwell district under the execution aforesaid in favor of Elisha Carson against Alfred Holley. JNO. GARY EVANS, E. S. HAMMOND, Plaintiff's Attorneys. HENDERSON BROS., O. C. JORDAN, Defendants' Attorneys. (8) It is further agreed and admitted that Alfred Holley, the husband of the demandant herein, died on the fourteenth (14th) day of February, A. D. (1881,) eighteen hundred and eighty-one. O. C. JORDAN, HENDERSON BROS., Defendants' Attorneys. JNO. GARY EVANS, E. S. HAMMOND, Plaintiff's Attorneys."

The following decree was filed by Judge IZLAR, and judgments duly entered:

"These several actions (sixteen in number) are brought by the plaintiff to recover her dower in the land described in the respective complaints. The facts in each of the said actions are the same, and all involve the same questions of law. The facts agreed on are, briefly, as follows: Previous to the year 1839, William H. Carey and Alfred Holley (who was the husband of the plaintiff) owned as tenants in common a tract of land containing five thousand acres, known as the 'Hollow Creek Tract.' The Hollow Creek tract included all the lands in which the plaintiff now claims dower. Carey and Holley purchased the said tract jointly, and the same was conveyed to them as tenants in common. Alfred Holley, during his coverture with the plaintiff, sold and conveyed by deed dated March 5, 1841, his undivided moiety in the Hollow Creek tract to Wise Holley, his wife not joining in said conveyance. Afterwards William H. Carey died testate, and John L. Carey, his son, instituted proceedings in the court of equity by his next friend, D. J. Walker, against the other heirs at law of the testator, and Wise Holley and Alfred Holley, for partition of said lands. To this suit the plaintiff herein was not a party. The commissioners named in the writ in partition returned that said lands could not be fairly and equally divided without injury to one or more of the parties in interest. Thereupon a decree for the sale of said lands was made, and in pursuance of this decree said lands were sold in January, 1849, by the commissioner

in equity, and were at said sale purchased by John Holley, who complied with the terms of sale, and received from the commissioner a conveyance of said lands. The proceeds arising from said sale were distributed among the parties in interest, and the sale confirmed. In said proceedings for partition no provision was made for the protection of the plaintiff's contingent right of dower. On the 6th day of March, 1842, the sheriff sold all the right, title, and interest which Alfred Holley then had in said lands, under an execution issued upon a judgment obtained against him prior to the 5th day of March, 1841. At the sheriff's sale the interest of Alfred Holley in said lands was bid in by Wise Holley, to whom Alfred had previously conveyed. No deed from the sheriff to Wise Holley appears of record. Alfred Holley, the husband of the plaintiff, died on the 14th day of February, 1881. The defendants in the aforesaid actions are in possession of the various portions of the Hollow Creek tract described in the respective complaints.

Mr. Scribner, in his work on Dower, (volume 1, p. 328,) says: 'The statutes of most, if not all, the states provide for the sale of lands held in common, where, upon proceedings for partition, it is ascertained that a division cannot be made without serious detriment to the estate. In such cases the money arising from the sale is brought into court, and distributed to the several tenants in common in proportion to their respective interests in the common property. From these statute regulations has sprung a question of great interest and importance, namely, whether a sale made in conformity thereto operates to divest the contingent right of dower of the wife of a cotenant, and to pass the entire estate absolutely to the purchaser, and, if so, whether for that reason it is proper that the court under whose direction the sale is made should require a portion of the husband's share of the proceeds of the sale to be invested for her benefit in case she should survive him, and her right thus becomes absolute.' This question of 'great interest and importance' is the one presented in these cases, and upon which we are now required to pass.

It is contended that there was no statute authorizing the sale of lands, under the circumstances of this case, for partition; that the act of 1791 is only applicable to the settlement of intestate estates; and that the long-established practice of the court of equity, derived from an assumed jurisdiction in such cases, should not be allowed to override and defeat the rights of the parties. As was said by Chancellor HARPER in Pell v. Ball, 1 Rich. Eq. 387: 'It is not questioned that by the rules and practice of the English court of chancery it has no power to direct the sale of lands for the purpose of partition.' Neither can it be questioned that the court of

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