Ketchin v. Patrick

• Decision Date: 09 April 1890
• Citation: 11 S.E. 301,32 S.C. 443
• Parties: KETCHIN v. PATRICK et al.
• Court: South Carolina Supreme Court

11 S.E. 301

32 S.C. 443

KETCHIN v. PATRICK et al.

Supreme Court of South Carolina

April 9, 1890

Appeal from common pleas circuit court of Fairfield county; HUDSON Judge.

Henry & Gage and Ragsdale & Ragsdale, for appellant.

McDonald & Douglass and Henry N. Obear, for respondent.

McIVER J.

This was an action to recover possession of real estate, and the facts necessary to a proper understanding of the questions involved are substantially as follows: Marion R. Mobley, with her eight children, two of whom were Edward F. Mobley, Jr. and Moses H. Mobley, owned as tenants in common, each being entitled to one-ninth, a certain tract of land in the county of Fairfield containing 3,771 acres. R. T. Mockbee having recovered a judgment in February, 1884, against Marion R Mobley, Edward P. Mobley, Jr., and Moses H. Mobley, and issued execution thereon, the sheriff proceeded to levy the same upon the said tract of land, whereupon the Mobleys above named interposed claims of homestead in their undivided interest in said land, and the sheriff undertook to lay off the same to each of the claimants. After deducting the portions thus attempted to be laid off as homestead, there remained of the tract 3,201 acres, upon which the sheriff against levied and sold the same, or rather the interest of the three Mobleys above named therein, under the Mockbee judgment, and at that sale the defendants herein became the purchasers, and received titles from the sheriff. This deed does not appear in the case, but it is stated therein that it is in the ordinary form, and recites the judgment and execution in the case, levy and sale to defendants of "all that certain piece, parcel, or tract of land situate in the county of Fairfield containing 3,201 acres, more or less, and bounded by the homestead lands of Mrs. Marion R. Mobley, of M. A. Mobley, [doubtless a misprint for M. H. Mobley,] and by lands of James Jones, 'and others named,' and the Camden road." Soon after this sale, proceedings were instituted for the partition of the entire tract of 3,771 acres, in which it was adjudged, among other things, that the attempt to lay off the homestead as above stated was a nullity, as that could not be done until after the land had been partitioned, and the shares of the parties claiming homesteads had been ascertained and defined. Partition was accordingly ordered, this court saying that there was no objection, however, "to providing in the writ of partition that the commissioners, as far as it is practicable for them to do so without prejudice to the interests of the other parties interested, in ascertaining what would be the shares of Marion R. Mobley, Edward P. Mobley, Jr., and Moses H. Mobley, respectively, shall include therein the whole or such portions thereof as may be necessary to make up their several shares of the portions of the land which the homestead appraisers heretofore have attempted to set off to them, respectively, as their homesteads. The Patricks, having purchased all the interests of the three parties just previously named subject to levy and sale under execution, will be entitled to receive whatever remains of their respective shares after their several homesteads therein have been laid off to them, respectively." Mellichamp v. Mellichamp, 28 S.C. 133, 5 S.E. Rep. 333. After the remittitur was sent down in that case, a writ of partition was issued, containing the provision suggested by the supreme court, that, if practicable to do so without prejudice to the interests of the other parties, they should include in the shares of the three Mobleys those portions of the land which had been prematurely assigned to them as homesteads. To this writ the commissioners in partition made a return, among other things, to the effect that, while they had allotted to Edward P. Mobley, Jr., and Moses H. Mobley, as their homestead, the same portions of land which had been previously attempted to be assigned to them as homesteads, they had not pursued this course with reference to the homestead of Marion R. Mobley, but, on the contrary, had assigned to her, as her homestead, 80 acres out of the 3,201 acres; and the 121 acres which had previously been attempted to be assigned to her as homestead were included in the portion of the land allotted to the defendants as the purchasers of her undivided interests over and above her homestead. This return was duly confirmed by an order consented to by all parties, including the defendants herein, who had been made parties to the action for partition. In the mean time, however, to-wit, on 22d January, 1885, the Merchants' & Farmers' Bank of Charlotte had obtained a judgment against Marion R. Mobley, Edward P. Mobley, Jr., and Moses H. Mobley, which was duly entered before the said partition was made; and after it was made the said 121 acres was levied on under the execution issued to enforce the judgment of the Charlotte bank, and sold by the sheriff, at which sale the plaintiff herein became the purchaser, and, having received titles from the sheriff, brought this action to recover possession of the said 121 acres then in the possession of the defendants herein.

The case came on for trial before his honor, Judge PRESSLEY, and a jury, who were instructed, substantially, that the defendants, by their purchase at sheriff's sale, acquired no title to the 121 acres in dispute, because all that was sold at that sale was the undivided interests of the three Mobleys, the judgment debtors, in so much of the entire tract of 3,771 acres as remained after taking off therefrom the portions prematurely assigned as homesteads to those three parties, and, as the 121 acres now in dispute were included in those portions, it was not sold, and hence defendants acquired no title by that sale to the land now in dispute but the same remained subject to partition among all of the original tenants in common, but that the effect of the partition, when made and confirmed, by which the 121 acres were allotted to the defendants as assignees of the interest of the three Mobleys as a part of their share, would have been to vest in the defendants the right to the 121...