Morgan v. Morgan

• Decision Date: 10 October 1895
• Citation: 23 S.E. 64,45 S.C. 323
• Parties: MORGAN v. MORGAN et al.
• Court: South Carolina Supreme Court

23 S.E. 64

45 S.C. 323

MORGAN v. MORGAN et al.

Supreme Court of South Carolina

October 10, 1895

Appeal from common pleas circuit court of Greenville county Witherspoon, Judge.

Action by Julius N. Morgan against John W. Morgan and others for partition. From the decree therein rendered, plaintiff and defendants appeal. Modified.

Haynsworth & Parker, for plaintiff.

Cothran Wells, Ansel & Cothran, for defendants.

POPE J.

Nathaniel Morgan, who died in the year 1863, while a citizen of Greenville, in this state, left in full force a will, whereof his son, the defendant John W. Morgan, was appointed executor. By the terms of his will, among other things, a life estate was given his widow in his property, together with certain specific legacies. The balance of his estate, real and personal, was devised and bequeathed to his six sons. At the time of his death the testator was regarded as owning a considerable estate, consisting of negro slaves and land. The plaintiff, Julius N. Morgan, being a minor, the defendant John W. Morgan had, by proper proceeding therefor, himself appointed his general guardian by the court of equity in the year 1864. The calamities incident to the result of the war rendered the estate of the said Nathaniel Morgan, deceased, insolvent, so that on the 1st day of July, 1868, the defendant John W. Morgan, as executor of his father's will, exhibited his bill in the court of equity for Greenville district (now county) against the widow and children of the said testator and one Jeremiah Glenn (one of the largest creditors of said testator's estate) as defendants, alleging that the personal estate of his testator was largely insufficient for the payment of his debts, that the sale of his testator's land would be needed to aid in the payment of the testator's debts; also setting out the provisions of the will of his testator in behalf of his widow and children; also stating that the testator's creditors were numerous, and had either sued or were preparing to sue upon their respective claims. He prayed in his bill that all said testator's creditors might be called on to present and prove their respective demands under the action he had instituted, and, in the meantime, might be restrained by the injunction of the court from bringing any suits against the complainant as such executor; that an account might be taken of his actings and doings as said executor, and for such other and further relief, etc. The service of the subp na ad respondendum in said action in equity was duly accepted by every defendant who was of full age, and was thus accepted as to Julius N. Morgan, who was an infant: "Service accepted. Julius N. Morgan, by John W. Morgan, His Guardian;" such words being indorsed on the original sub. ad res. On the 6th day of July, 1868, an order was passed in the cause calling in creditors, enjoining creditors from suing; and at the same time five commissioners were appointed to set off dower to the widow. Writ in dower was duly issued August 5, 1868, which was returned by the said commissioners on 5th September, 1868, setting apart to the widow as her dower 122 acres of land, whereon was the family residence. This return was confirmed by an order passed on the 22d January, 1869. Of course, this estate of dower, being in kind, was for her life. All of the other real estate of testator was sold under an order therefor passed in the cause on the sale day of September, 1868. The clerk of court, as successor to the commissioner in equity, made his report on claims on the 1st September, 1869, among which was that of Jeremiah Glenn, by a sealed note, amounting at date of report--principal and interest--to the sum of $2,053.85. This report of the clerk on claims was confirmed by an order made in the cause on the 6th December, 1870. The funds arising from the sale of testator's land and his personal estate in hands of the executor were prorated among creditors, and the last application of such funds to this purpose was on the 5th day of January, 1871, leaving a balance due on the claim of Jeremiah Glenn thereafter of $1,863.69, which balance was reported to the court in that cause by the clerk. The cause was marked "Ended" on the equity docket on December 6, 1870, and the action was dropped from such docket. Jeremiah Glenn departed this life, intestate, a short time prior to March, 1888; and letters of administration upon his estate were duly granted to Abraham Cook and T. W. Glenn. These administrators, fearing that the balance due the estate of their intestate by that of Nathaniel Morgan, deceased, might be considered or presumed as paid from lapse of time, filed their petition on the 1st day of March, 1888, in the court of common pleas for Greenville county in the old case of Morgan v. Morgan et al., which last, as we before stated, was begun on July 1, 1868. This petition gave a history of the old suit in equity, showing the balance still due the estate of their intestate; asking the leave of the court to enroll their decree and issue execution thereon; "and for such other and further relief as to the court shall seem meet and proper." On the same day, Judge Norton granted an order requiring the heirs at law of Nathaniel Morgan, deceased, to show cause on the first day of the next term of court why the prayer of the petition should not be granted, and directed that copies of the petition and his order should be served upon each one of the said heirs at law. This petition and Judge Norton's order were filed in the office of the clerk of court for Greenville on the 9th day of March, 1888; and copies of the petition and order for each one of the said heirs at law were lodged with the sheriff of Greenville county on 12th of March, 1888, and served upon each one of them except John W. Morgan on the 27th day of April, 1888. John W. Morgan was a nonresident of this state, and was afterwards, to wit, on the ___ day of December, 1891, served by the usual publication. The heirs at law, except John W. Morgan, made answer to the petition and rule, denying the petitioner's right to the relief for which they prayed in their petition.

Pending the hearing of the petition and answers thereto, the widow of Nathaniel Morgan, deceased, departed this life, in September 1892; and some time after the death of the widow, but in the year 1892, the present plaintiff, Julius N. Morgan, began his action for the partition of the 122 acres of land, which had been assigned to the widow for life as dower, among the heirs at law of said Nathaniel Morgan, deceased; and to his action he made all such heirs at law parties, and also Abraham Cook and T. W. Glenn, as said administrators of the estate of Jeremiah Glenn, deceased, as claiming some lien on the land. The answers of all the defendants except Abraham Cook and T. W. Glenn, as administrators, denied that Jeremiah Glenn in his lifetime had any lien, by final decree or judgment, upon said lands; that the said claim or judgment was paid by lapse of 20 years from its creation; that the ex parte petition in Re Morgan v. Morgan et al. of the defendants Abraham Cook and T. W. Glenn, as administrators, was inoperative, because the action of Morgan v. Morgan et al. had been ended in December, 1870, and could not then be revived after the lapse of more than 20 years, and because then administrators were not parties to that action, and because the claim of their intestate was no judgment. The plaintiff alleged that he had never been made a party to said action of Morgan v. Morgan et al., and hence was not bound by any proceedings thereunder. The defendant John W. Morgan relied upon the fact that he had not been served with the petition and order of Judge Norton until December, 1891, and more than 20 years had elapsed since the date of the last payment (January, 1891) on Jeremiah Glenn's debt against his testator and the service upon him of this petition and Judge Norton's order. All the issues were referred to Master Verner, and in his report he overruled the objection of plaintiff and defendants, and held that the defendants Cook and Glenn, as administrators, had a judgment, capable of being revived, and for which the land in question should be sold to make payment. Exceptions to this report came on to be heard by Judge Witherspoon, and he held that the master was correct as to the children of Nathaniel Morgan holding the 122 acres of land subject to the payment of the debt of Jeremiah Glenn, except that the one-fifth share therein of John W. Morgan was not liable to sale for the payment of the Glenn debt, because he was not served with process until after 20 years had expired. Both sides to the controversy appeal from this decree of Judge Witherspoon. Let the...