Parr v. Lindler

• Decision Date: 01 December 1893
• Parties: PARR v. LINDLER.
• Court: South Carolina Supreme Court

18 S.E. 636

40 S.C. 193

PARR v. LINDLER.

Supreme Court of South Carolina

December 1, 1893

Appeal from common pleas circuit court of Fairfield county; J. J Norton, Judge.

Action by Henry L. Parr against Simeon O. Lindler. From a judgment for defendant, plaintiff appeals. Reversed.

Ragsdale & Ragsdale, for appellant.

Barron & Ray, McDonald, Douglass & Obear, and James G. McCants, for respondent.

McGOWAN J.

This action was brought for the recovery of possession of a tract of land originally belonging to one Henry W. Parr, and for convenience known as the "Mill Tract." It was admitted that the said Henry W. Parr was the common source of title, and that the plaintiff, Henry L. Parr, as his only son and heir, was entitled to the land, unless he had been in some way divested of the title thereto. The defendant however, claimed that he has a claim of title from Henry W Parr, and, if that claim of title is what he claims it to be then he would defeat the title of the heir at law. His claim is that under certain executions this land was sold by the sheriff, and purchased by one Freshley, at sheriff's sale, and by subsequent chain of title has become the property of this defendant. This makes it necessary to consider the force and effect of these proceedings under which the land was sold by the sheriff:

Some time prior to 1858, Henry W. Parr, of Fairfield, executed to W. R. Robertson, then commissioner in equity, a bond for land purchased at his official sale, and to secure the same gave two mortgages of two separate tracts of land,--one to the commissioner himself, and the other to one Coleman, one of his sureties on his bond; and in 1871 he, the said Parr, executed another bond and mortgage to one Edward Pollard, of still a different tract of land. In 1876 the said Henry W. Parr died intestate, seised and possessed of some personalty and several tracts of land besides these mortgaged as above stated, and leaving as his only heir at law a son, Henry L. Parr, then an infant of tender years. Letters of administration on the personal estate of the deceased, Parr, were granted to one William B. Elkin. Soon after, two separate actions were brought against the said heir and administrator for the purpose of foreclosing the mortgages above described, as having been executed by the intestate, Parr, in his lifetime, entitled as follows: No. 1: "Clawney, as clerk, v. Henry L. Parr and William B. Elkin, as administrator," etc. No. 2: "Edward Pollard v. Henry L. Parr and William B. Elkin, as administrator." The records of these cases were admitted in evidence, and it appeared that in each case the lands mortgaged were sold, and for an alleged deficiency an execution was issued by the clerk, and that under such execution issued in the case of "Clawney, as clerk," the sheriff levied and sold the Mill tract of land of the deceased mortgagor, Henry W. Parr, which was not included in any of the mortgages. The plaintiff insists, therefore, that the whole proceedings were void, for the reason that there was really no judgment in the aforesaid cases, or either of them, which authorized the issuing of an execution against the estate of the intestate, real or personal. First. He offered parol testimony tending to contradict the records, upon the alleged ground that, being under 14 years of age at the time the actions were brought, he was not personally served with summons, as the law required, and therefore the whole proceedings were void as to him, as not having been made a party. Second. He further insisted that, from a mere inspection of the records, it appears that the execution under which the land was sold was absolutely void, as, in a proceeding to foreclose a mortgage, a judgment for a deficiency can be had only when the sale is completed, and it cannot be known what the deficiency will be until the coming in of the report of sales, and the confirmation thereof. Third. He further insisted that, even if the proceedings under which the Mill tract of land was sold by the sheriff were perfectly regular and legal, he would still be entitled to recover the land, upon the ground that he was entitled to a homestead in the land, and, the sheriff not having done his duty in laying it off to him, the sheriff had no authority to levy and sell the same.

The judge charged the jury fully upon the whole case, but we will not attempt to consider all the questions discussed by him, but confine ourselves to the points complained of. Under the charge, the jury found for the defendant, and the appeal comes to this court upon the following exceptions by plaintiff: "(1) For that his honor erred in charging the jury the following: 'The homestead law, as it existed at that time, gave to the plaintiff, Parr, an exemption of $1,000 of real estate, to be selected by himself, until he arrived at the age of twenty-one years, and provided that the remainder of that land might be sold under execution. The then defendant (now plaintiff) proves that he is now (23) twenty-three years of age. This action was commenced this year. So that he would not be entitled, even if the other judgment was out of the way, to recover possession of this land, the term for which it was exempted to him having expired before the commencement of this action.' (2) For that his honor should have charged the jury that the homestead laws create no new estate, nor do they invest estates already existing with any new qualities or restrictions, but secure and provide for an exemption by forbidding the process of the court to sell certain property for the payment of debts, and that, if the jury believe that the plaintiff's ancestor owned the land in dispute in fee, that such fee, upon his death intestate, descended to his heirs, who, upon such showing, would be entitled to recover, unless the defendant could prove title out of him by some process or operation of law. (3) For that his honor should have charged the jury that the judgments and executions through which defendant claimed title were void from a mere inspection of the record, and should have instructed the jury that an execution cannot be issued for a deficiency on a decree for foreclosure until there has been a sale, a judicial ascertainment of such deficiency, and a judgment entered therefor. (4) For that his honor erred in refusing to allow the plaintiff to prove that the judgments and executions through which the defendant claims were fraudulent and void, and that such fraud was known to the defendant, and to all the parties through whom the land in dispute passed to him." The defendant also gave notice that, in the hearing of the appeal herein, he would ask that the judgment appealed from be sustained on other grounds than those named by the trial judge: "(1) His honor correctly excluded the question of homestead from the consideration of the jury for the additional reason that the land in dispute was not the family residence, nor lands appurtenant, of the judgment debtor, when the Pollard debt was contracted, nor at any time thereafter; and the plaintiff has never resided on, nor been in possession of, said lands, and has never been entitled to a homestead therein. (2) The sheriff's deed conveying the land in dispute is fully supported by the judgment, execution, and sale in case of Samuel B. Clawney, as clerk, v. Henry L. Parr and W. B. Elkin, as administrator," etc. From the view which the court takes, it will not be necessary to consider the different questions debated as to the alleged right to homestead, the alleged payment in fact of the case of Clawney, as clerk, or the alleged incapacity of Sheriff Ruff, on account of interest, to make the sale under the execution in that case. As it seems the most natural, we will consider the other exceptions in their inverse order.

Exception 4 of the plaintiff complains of error in refusing to allow him to offer parol testimony to impeach the judgments and executions through which the defendant claims. The records were in evidence, and did not disclose on their face any jurisdictional infirmity, but in that regard seemed to be prima facie regular. We think, therefore, without going again into the argument, that the testimony offered was not admissible for the purpose indicated, in this collateral proceeding, not being a direct proceeding instituted for that purpose. We think there was no error in refusing to admit the testimony. See Turner v. Malone, 24 S.C. 398.

Exception 3 of plaintiff makes the point that the judge erred in charging that the judgments under which the defendants claims were not, as alleged, void from the mere inspection of the records, but were valid, upon which executions for deficiencies could be issued. In subdivision 7, of section 188, of the Code, it is declared that, "in actions to foreclose mortgages, the...