Rice v. Bamberg

• Decision Date: 15 March 1901
• Parties: RICE v. BAMBERG.
• Court: South Carolina Supreme Court

38 S.E. 209

59 S.C. 498

RICE v. BAMBERG.

Supreme Court of South Carolina

March 15, 1901

Appeal from common pleas circuit court of Bamberg county; George W Gage, Judge.

Action by Eugenia M. Rice against F. M. Bamberg to recover possession of realty. From a judgment in favor of defendant plaintiff appeals. Reversed.

H. F Rice and B. T. Rice, for appellant

John R Bellinger, for respondent.

GARY A. J.

The plaintiff brought this action to recover possession of a tract of land. The defendant amended, denying all of the allegations of the complaint, except the allegation that the defendant is in possession of the land, and setting up the following defenses: (1) The statute of limitations; (2) adverse possession; and (3) that he is a purchaser for valuable consideration, without notice. This last defense was not submitted to the jury, as it was properly triable by the court in the exercise of its chancery powers.

It appears from the testimony that John M. Whetstone died 22d July, 1870, leaving a will by which he devised his China Grove plantation to his wife, Susan H. Whetstone, "to be used and enjoyed by her during her natural life, and from and after her decease I give and devise the same to my children begotten of her; but, should such children die without lawful issue, then the same, after the payment of one-fourth of the value of the land to my sister-in-law, Miss Elizabeth Arnold, to my son John Whetstone and his heirs, forever." The will, after specifying certain personal property for the payment of debts, provides as follows: "And, should the proceeds prove insufficient to satisfy all the debts, I give them [the executors] power to sell so much of my real estate from the western portion of my plantation known as 'China Grove' as will satisfy them all." The testator left surviving him two children by Susan H. Whetstone,--Eugenia M. Rice, the plaintiff, who attained her majority on the 13th January, 1889, and a son named Adam, who was born in 1869, and died 14th March, 1896. Mrs. Whetstone died in November, 1898. After the death of the testator it was discovered that his estate was insolvent, and his executrix filed her complaint in 1871 to marshal the assets and sell the real estate, including China Grove, for the payment of debts. Under a decree in that case, China Grove was divided and sold in parcels by the sheriff, except the dwelling and 200 acres of land, which were by a compromise agreement assigned to Mrs. Whetstone as a homestead, and this was confirmed by the court. This homestead was occupied and enjoyed by Mrs. Whetstone and her two children until the death of her son, afterwards by her and her daughter until her death, and since that time by her daughter. At the time of the testator's death there was a judgment against him, upon which the sheriff held an execution, in active energy when he sold the land in dispute, and which was found in the record of the case, to sell the land. The defendant traced his title, through several successive occupants, to the conveyance made by the sheriff, which was apparently regular and complete, except as hereinafter mentioned. In the record of the case of Susan H. Whetstone to sell the land, there is no petition for the appointment of a guardian ad litem for the plaintiff herein and her brother, but such petition is referred to as being read and filed, and proof of due service thereof is recited in the order appointing the guardian ad item. There is no record that the summons was served on the infants. There are two summonses in the record, each appearing as an original. On the one directed "To the defendants, H. A. Smith, John C. Whetstone, Eugenia M. Whetstone, and Adam W. Whetstone," is the following proof of service:

"We acknowledge service of the within summons and a copy of the complaint in this action for the defendants H. A. Smith and John C. Whetstone. Izlar, Dibble & Dibble, Defendants' Attorneys. September 23rd, 1871.

"I admit due and personal service of the within summons this 28 September, A. D. 1871. J. C. Whetstone. Witness: L. H. Wannamaker."

On the summons directed "To the defendants Eugenia M. Whetstone and Adam W. Whetstone, infants residing with their mother, the plaintiff, in the county and state aforesaid," is the following proof of service:

"On the part and behalf of my infant children, the within-named defendants, I accept service of this summons. September 27th, 1871. S. Whetstone."

It is admitted that S. Whetstone is Susan H. Whetstone.

The records in the case hereinbefore mentioned were for a time out of the clerk's office, and in the hands of the attorneys. Upon search they could not, at one time, be found, as they had inadvertently been misplaced. The lands were sold under a consent decree signed by the guardian ad litem of the infants and the other parties to the action. The lands did not sell for enough to pay even the judgment creditors. This action was commenced 7th March, 1899.

The jury rendered a verdict in favor of the defendant. The plaintiff appealed, upon exceptions, the first of which is as follows: "(1) That his honor the presiding judge erred in charging the jury, 'That is a question of fact for the jury to say,-whether the copy summons was delivered to the child,'-in that: (a) That the only testimony or evidence as to the service of the summons in the case of Whetstone Executrix, v. Smith et al., on the infants, was the judgment record in said cause, the legal effect of which record should have been construed by the judge, not the jury; (b) that, said record disclosing on its face the mode of service on said infants to have been an acceptance by their mother for them, no presumption could be drawn from the evidence that said service was made in any other or different mode; (c) there was no testimony tending to show that any other proof, of service ever existed, other than that disclosed by the record." After stating the requirement of the law that a copy of the summons must be served upon the infant, his honor the presiding judge says: "The question that perplexes me is whether this record must stand as conclusive proof that such a copy summons was not furnished to the child. I charge you, the record would be the highest evidence. If the summons was served upon the child, the law has been complied with; and you are the judges of that. The record must speak for itself as to what's here. I charge you that after a lapse of twenty-five years, and the record having been out of the custody of its proper keeper (that is, the clerk of the court), and you are satisfied that parts of it are lost and other parts absent, and if only parts of the record have been recorded as the law requires, then it is a question of fact for the jury to say whether the copy summons was ever delivered to the child; and, if they find it was, then the child, Eugenia, was bound; the court had jurisdiction of that action. If you find that a paper like this was not given to her, then everything done was void. While I say that this case was commenced in '71 or '73,-more than twenty-five years ago,-I leave it for the jury to say if this record has been out of the custody of its proper keeper; and I leave it to the jury to say if parts of it have been lost, and certain parts not recorded; and I leave it to the jury to say whether another paper-another summons-was once in the record, bearing evidence of the service on the infants, and was lost. I don't know any authority for that, but I think it is the justice of the case. I freely confess to you I am not bigoted in that opinion, but, so far as I can find the reason of the law, that ought to be the law, if it ain't.'' As a general rule, the legal effect of a record is to be determined by the court upon inspection of the record, without resort to extrinsic testimony. If a party to the action relies upon the fact that the record is not complete, the burden is devolved upon him to make a prima facie showing, to the satisfaction of the presiding judge, by competent testimony, that the part necessary to sustain his contention is lost. In this case there was no evidence whatever that the fact upon which the defendant relied ever constituted any part of the record, nor were there any facts proved from which this could be legally inferred. It is true, there was testimony to the effect that the...