Pearson v. Breeden

• Decision Date: 13 March 1908
• Citation: 60 S.E. 706,79 S.C. 302
• Parties: PEARSON et al. v. BREEDEN. PEARSON v. PEARSON et al.
• Court: South Carolina Supreme Court

60 S.E. 706

79 S.C. 302

PEARSON et al. v. BREEDEN.

PEARSON v. PEARSON et al.

Supreme Court of South Carolina

March 13, 1908

Appeal from Common Pleas Circuit Court of Marlboro County; R. W Memminger, Judge.

Action by John F. Pearson and others against John L. Breeden. From an order refusing to set aside a decree and a sale thereunder, plaintiffs appeal. Affirmed.

Knox Livingston and Stevenson, Maheson & Stevenson, for appellants.

J. H Hudson, C. P. Townsend, McColl & McColl, and Edward McIver for respondent.

WOODS J.

This appeal is from an order refusing to open and set aside a decree of Judge Cothran of 5th November, 1886, and the judicial sale of a tract of land made thereunder. The following agreed statement of facts appears in the record "In 1857 John Adams and others conveyed the lands involved herein to John Pearson and his wife, Nancy Pearson, who in turn in 1870 conveyed to Charles T. Pearson. Nancy Pearson failed to affix her seal to the deed, and after her death John Pearson, her husband, and her other heirs at law, joined in another deed conveying the premises to Charles T. Pearson. Thereafter Charles T. Pearson died in 1883, and his estate being insolvent, his widow, on December 13, 1884, brought an action to marshal assets and wind up the estate. In this proceeding it became necessary to determine what estate Chas. T. Pearson held in these lands, and his honor, Judge Cothran, by decree dated November 5, 1886, construed the deed as giving the lands in fee conditional in part, and in fee simple in part, to Charles T. Pearson, and held them subject to his debts, and decreed them to be sold in aid of assets. At the sale James B. Breeden, a mortgage creditor, bought the premises in question for $2,680, and this sale was reported to the court and confirmed on April 21, 1887, and thereafter upon the death of James B. Breeden under the provision of his will title to this property vested in his brother W. K. Breeden, who on the 29th day of December, A. D. 1891, conveyed the same to John L. Breeden, respondent in this motion. Thereafter, that is, on the 25th day of March, A. D. 1903, a suit on the equity side of the court of common pleas for Marlboro county was instituted by Lucy Charles Pearson, by her guardian ad litem, against the other heirs at law of Charles T. Pearson and John L. Breeden as party in possession, for partition of this tract of land. John L. Breeden in his answer set up exclusive title in himself under the sale of the estate of the C. T. Pearson land, and the chain of conveyance above set forth, and also by way of plea in bar the proceedings, judgment, and sale of this land in the suit to marshal the assets of the estate of Charles T. Pearson, and pending this suit, to wit, on 30th May, A. D. 1905, the infant defendants having become of age made a motion to open the judgment and set aside the sale, alleging the court was without jurisdiction to render the above decree on the grounds: First that the proceeding was heard outside the county, and at chambers, contrary to law; second, that the guardian ad litem of the infant defendants was appointed by the clerk of the court, which appointment the clerk had no power to make; third, that they were injured and deprived of their rights in the above proceeding in that the deed above construed to give a fee conditional to Charles T. Pearson gave him only a life estate, and they are now entitled to the fee in remainder, and that the premises were sold far below their real value. Judge Memminger refused the motion in a formal order. From the order refusing this motion the defendants John F. Pearson, James Pearson, Annie May Pearson, and Lucy Pearson now appeal to this court."

The questions first to be determined are: (1) Was a guardian ad litem appointed for the infant defendants in accordance with law? and (2) did Judge Cothran have jurisdiction to hear and determine the cause when he undertook to do so? The infant defendants were properly served, and the appointment of a guardian ad litem was made on the petition of their mother with whom they resided. It is true their mother was plaintiff in the cause and the children were defendants; but an inspection of the complaint shows that so far from there being any conflict of interest, the mother was really alleging the land to be the property of the children, and not subject to the debts of her husband. The original appointment of T. I. Rogers as guardian ad litem under this service of the infants and petition of the mother was improperly made by the clerk, who was not authorized by law to make the appointment; but on 6th May, 1885, before the cause was heard, Judge Hudson made an order confirming the appointment. This confirmation of an irregular appointment was equivalent to an appointment by Judge Hudson under the petition of Mrs. Pearson. There was, therefore, no defect whatever in the appointment of the guardian ad litem. The jurisdictional question is less simple, but it may be made equally clear. The contention of respondent is (1) that the cause was heard in open court at Bennettsville by the Court of Common Pleas for Marlboro County, and (2) that, if it be considered heard at Chambers in Darlington, as appellants contend, then it was so heard by all parties including the guardian ad litem. Since the cause was on the docket of the court of common pleas for Marlboro county at the September, 1886, term, and Judge Cothran who presided at that term afterwards filed a decree therein, the legal presumption is that there was a hearing according to law, resulting in the decree. Counts v. Wilson, 45 S.C. 571, 23 S.E. 942; Clemson v. Pickens, 42 S.C. 512, 20 S.E. 401; Chafee v. Postal Co., 35 S.C. 372, 14 S.E. 764; Harvey v. Tyler, 2 Wall. (U. S.) 328, 17 L.Ed. 871.

The principle is thus set forth in Vorhees v. Jackson, 10 Pet. 449, 9 L.Ed. 490: "There is no principle of law better settled than that every act of a court of competent jurisdiction shall be presumed to have been rightly done until the contrary appears. This rule applies as well to every judgment or decree rendered in the various stages of their proceedings, from the initiation to their completion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated becomes a part of their record, which thenceforth proves itself, without referring to the evidence on which it has been adjudged." In his work on "Judgments" (page 329) Black...