Moore v. Smith

• Citation: 7 S.E. 485,29 S.C. 254
• Parties: MOORE et al. v. SMITH.
• Decision Date: 26 September 1888
• Court: South Carolina Supreme Court

7 S.E. 485

29 S.C. 254

MOORE et al. v. SMITH.

Supreme Court of South Carolina

September 26, 1888

Appeal from common pleas circuit court of Richland county WITHERSPOON, Judge.

Lyles & Haynsworth, for appellant.

F. W McMaster, for respondents.

McGOWAN J.

This action was commenced by the plaintiffs for the recovery of a tract of land, upon the ground that it had belonged to their ancestor, Edgar Doby, who died intestate in 1881; that the land had been sold by order of the probate court for the payment of the debts of the decedent. The plaintiffs, his heirs, had not been made parties to said proceedings; and in consequence they recovered the land from Smith, the purchaser; and it was referred to the master to report how much, if any, of the money paid for the land at the sale thereof, was applied to the just and bona fide debts of the deceased, Edgar Doby. See 24 S.C. 316. It is under this order of reference that the questions in the case arise. One McCraney, as assignee, presented a judgment alleged to have been recovered in a trial justice's court against the deceased by one Jennings, which had been paid out of the purchase money of the land. The master disallowed the judgment as such, but Judge WALLACE referred the report back to the master for further testimony as to the validity of the cause of action against the estate of Doby. After several references the master reported, finding, as matter of fact "that, some time in the year of 1875, the deceased, Doby, gave his note to one Jennings as agent, that it could not be clearly ascertained when the note fell due; thinks it matured some time in the fall of 1876; that in the latter part of February, 1881, Doby died intestate, and on November 18, 1882, James E. Green was appointed his administrator; and that on February 9, 1883, the administrator paid the note." And as matter of law he found as follows: "I am of the opinion that the statute was suspended for nine months at least from the grant of administration, so that the question of fact presented is whether on the 18th November, 1882, six years had elapsed from the maturity of said note. Under the plea of the statute I think the onus is upon the defendant to show that such period had not intervened. From the testimony it is possible that such time had not elapsed; but it is also possible, and I am inclined to think a little more probable, that such time had not elapsed. As the defendant has not successfully met the onus cast upon him, I conclude that the said note was not, at the time of its payment, a valid claim against the estate of the said Doby."

Upon exceptions to this report Judge WITHERSPOON confirmed it, and from his order the defendant appeals to this court, upon the following grounds: "(1) Because his honor held, as matter of law, that under the plea of the statute of limitations the onus is on the defendant herein to show that the period prescribed in the said statute had not intervened. (2) Because his honor sustained the finding of fact by the master that 'it is a little more probable that such time had not elapsed' in the case of the note of Edgar Doby set up by the defendant. (3) Because his honor held, as master of law, that said note was not, at the time it was paid, a valid claim against the estate of Edgar Doby deceased. (4) Because his honor did not conclude, as matter of law, that said note was, at the time it was paid, a valid claim against the estate of said Edgar Doby,...