Lawton v. Perry

• Decision Date: 11 December 1893
• Citation: 18 S.E. 861,40 S.C. 255
• Parties: LAWTON v. PERRY et al.
• Court: South Carolina Supreme Court

18 S.E. 861

40 S.C. 255

LAWTON v. PERRY et al.

Supreme Court of South Carolina

December 11, 1893

Appeal from common pleas circuit court of Berkeley county; James F Izlar, Judge.

Action by R. Rivers Lawton, administrator of the estate of James M Lawton, deceased, against W. Hampton Perry, Josiah I. Perry Susan M. Perry, Rosa B. Perry, Mary E. J. Perry, T. Smith Perry, H. P. Foster, R. W. Memminger, Jr., guardian ad litem J. Lamb Perry, trustee, John Heins, and Robert Black, sheriff, to establish a judgment against the estate of J. I. Perry, deceased, to subject certain real estate descended to and in possession of deceased's heirs to payment of debts against the estate, and to set aside a certain judgment in favor of defendant J. Lamb Perry, trustee, against defendant H. P. Foster, as administrator of the estate of J. I. Perry, deceased. From the decree entered, all the parties except defendant Black, sheriff, appeal. Reversed.

W. St. Julien Jervey, for plaintiff.

Mitchell & Smith, for defendant Foster.

J. Lamb Perry, in pro. per.

T. Moultrie Mordecai, for defendant Heins.

POPE J.

This action came on for trial before his honor Judge Izlar, being heard upon the pleadings and the testimony taken before Master Leland. The decree having been filed, appeals were taken therefrom by all the parties to the action except Robert Black, as sheriff. We do not know that we can present the matters of fact and matters of law herein involved in any juster manner than by reproducing, in its entirety, the decree of the circuit judge:

"This case was heard before me at the recent term of the court of common pleas for the county of Berkeley. The action is brought to establish a judgment against the estate of one J. I. Perry, deceased, and to subject real estate descended and in the possession of the heirs of said deceased to the payment of the debts of the ancestor, and to set aside a certain judgment obtained by the defendant J. Lamb Perry, trustee, against Henry P. Foster, as administrator of the estate of said J. I. Perry, deceased, on the ground of fraud and collusion in obtaining the same, and for injunction and general relief. The defendants answer, denying all fraud and collusion, and claiming that the judgment of the plaintiff, both under the statute affecting it and the circumstances surrounding it, is presumptively paid, and that the complaint should be dismissed. The case was referred to the master of Berkeley county to take the testimony, and report the same to the court. The testimony taken, so far as deemed admissible by me, establishes the following facts: On June 1, 1867, Thomas P. Lockwood, trustee, obtained a judgment by confession in the court of common pleas for Colleton county against J. I. Perry for the sum of $1,935.75, which was duly entered. Execution was issued on this judgment December 22, 1868, and levy made on certain real estate of the defendant. On April 3, 1871, James M. Lawton obtained a judgment in the court of common pleas for Charleston county against the said J. I. Perry for the sum of $1,026.60. A transcript of this judgment was duly filed in the county of Colleton on the 5th day of April, 1871. No execution was ever issued on this judgment; neither was said judgment ever made a lien upon the property of the judgment debtor, by levy or otherwise. In April, 1871, an execution was issued on the judgment of Lockwood, trustee, and levy made thereafter upon certain real estate of said J. I. Perry, situate in the county of Colleton. On August 7, 1871, Lockwood, trustee, entered a receipt on the sheriff's execution book for $100 on account of said judgment. On June 18, 1872, the defendant John Heins commenced an action against said J. I. Perry for foreclosure and sale of his interest in a tract of land situate in Colleton county, containing 617 acres. Decree of foreclosure and sale, made October 29, 1872; amount of mortgage debt, $965.21. To this action Thomas P. Lockwood, trustee, was a party. Under this decree the mortgaged premises were sold. There was, after applying the proceeds of sale, a deficiency of $665.22. For this deficiency, execution was issued and lodged with sheriff of Colleton county, July 1, 1874. No further steps seem to have been taken for the enforcement of this judgment. Thomas P. Lockwood died intestate in 1875. James M. Lawton died intestate in 1877. R. Rivers Lawton, the present plaintiff, administered upon the estate of James M. Lawton, deceased, September 29, 1877. J. I. Perry died intestate June 15, 1880, survived by his widow and several children. The widow died February 26, 1886. Present action commenced September 2, 1889, and lis pendens filed in Berkeley and Colleton counties. J. Lamb Perry appointed trustee in place of Lockwood, deceased, September 11, 1889. Henry P. Foster appointed administrator of estate of J. I. Perry, September 24, 1889. J. Lamb Perry commenced action against Henry P. Foster, administrator of the estate of J. I. Perry, on the judgment of Lockwood, Trustee, v. Perry, in the court of common pleas for Berkeley county, September 24, 1889. Judgment by default rendered against Henry P. Foster, administrator, for $1,960,97, October 22, 1889, which, after entry, was transcripted to Colleton county, and execution issued thereon. Under this execution, a levy was made by the sheriff of Colleton county on certain of the real estate mentioned and described in the complaint herein. The sale under this levy was restrained by order made in the present action, after hearing, November 30, 1889. Both James M. Lawton and J. I. Perry lived in Summerville for several years before their deaths. James M. Lawton was, for several years before his death, in reduced circumstances. J. I. Perry owned and possessed the real estate described in the complaint at the time of his death. His heirs are now in possession of the same. R. Rivers Lawton, present plaintiff, knew of the existence of the judgment of his father against J. I. Perry when obtained, and at the time of the death of his father, but did not think estate of Perry was sufficiently valuable to compensate for the costs of an action. J. I. Perry left no personal property excepting some household goods. No administration was taken out on his estate until 1889. Income from all the real estate of J. I. Perry received by his heirs insufficient to pay taxes on the same.

"Let us first consider the judgment of the plaintiff in the light of the testimony, and of the law applicable thereto. It is contended that this judgment is presumptively paid, notwithstanding twenty years have not elapsed since the original entry thereof, and consequently the plaintiff herein has no right of action, and that the complaint should be dismissed. We cannot concur in this view. The judgment is not presumed to be paid under the statute affecting it; neither do the facts and circumstances proven warrant the court in presuming it paid, when all the testimony is considered. Even after a judgment is presumptively paid, an action may be maintained upon it, and the presumption of payment be rebutted by proof and a recovery had thereon. Code, § 311, as amended by Act No. 124, 1885, p. 231. The language of the Code is as follows: 'Nothing herein shall be construed to prevent an action upon a judgment after the lapse of twenty years from the date of the original entry thereof, and a recovery thereon, in case it shall be established by competent and sufficient evidence that said judgment, or some part thereof, remains unsatisfied and due.' This language applies generally to all judgments, no matter when recovered, and not to a particular class of judgments. It would be absurd to confine this provision to judgments obtained after 1873 alone. Under the latter construction we would have the following result, namely, that judgments obtained after 1873 could be sued upon after twenty years, and a recovery had thereon, while judgments obtained between 1st March, 1870, and 25th November, 1873, could not be sued upon, even if the period of twenty years had not elapsed from the date of original entry thereof, and here, at most, presumptively paid. The presumption of payment in the former case is much stronger than the latter, if length of time alone is considered; and the language of the statutes relating to one class of judgments is certainly no more imperative than that relating to the other class. The present action, as we have already said, is to establish the old judgment debt of James M. Lawton against J. I. Perry, and to subject real estate descended and in the possession of the heirs of the judgment debtor to the payment of the debts of their ancestor. The rule that a judgment creditor can only demand the aid of a court of equity after he has exhausted his legal remedy without satisfying his debt is only applicable inter vivos, and, as was said in Ragsdale v. Holmes, 1 S. C. 91, 'for the reason that the estate of the living debtor does not become assets for the payment of his debts until the exhaustion of the legal remedies is complete. The estate of a deceased debtor, or so much thereof as may be requisite for the payment of his debts, becomes assets from his decease. The primary mode of making them available is by an action at law, and recourse cannot be had to a creditors' bill where there is an adequate legal remedy; but where there is a devastavit, or threatened waste and insolvency, *** unquestioned ground exists for the interference of equity.' The facts proven in this case clearly show that the personal assets of the estate of J. I. Perry, deceased, are wholly insufficient to pay and satisfy all of his just debts and liabilities, and that resort to the real estate must be had for that purpose; that there is a threatened waste of said assets, and

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