Rowell v. Hyatt

• Decision Date: 09 November 1917
• Docket Number: (No. 9826.)
• Citation: 108 S.C. 300,94 S.E. 113
• Parties: ROWELL et al. v. HYATT.
• Court: South Carolina Supreme Court

94 S.E. 113

(108 S.C. 300)

ROWELL et al.

v.HYATT.

(No. 9826.)

Supreme Court of South Carolina.

Nov. 9, 1917.

Gary, C. J., dissenting.

Appeal from Common Pleas Circuit Court of Dillon County; Geo. E. Prince, Judge.

Action by J. D. Rowell and others against D. H. Hyatt and others. Judgment for plaintiffs, and defendant named appeals. Affirmed.

This is an action by plaintiffs, children of John Rowell, to recover possession of a tract of land devised in the will of their grandfather, William Rowell, in terms as follows:

"Item First. I give to my wife Lecia and bequeath to her all my personal estate, after the payment of my debts of every name and kind except so much as I shall hereafter dispose of in this instrument during her natural life and at her absolute disposal with the exceptions hereinafter made for the benefit of my daughters. I also give and bequeath to my said mte the use of my plantation and one hundred and twenty acres of land including it during her natural and at her death the said plantation and one hundred and twenty acres including it, I give and bequeath to my son Jesse subject to the provisions hereinafter made. I give and bequeath to my son James sixty acres of land in the fork of Little Cypress end off of the south western end of my land subject to the provisions hereinafter made. I give and bequeath to my son Jeremiah eighty acres of my land including the house and clearing where he now lives, subject to the provisions hereinafter made, I give and bequeath to my son David Rowell eighty acres of my land along the south side of it adjoining David C. Howell's land and to extend to the land which I give to my son Jeremiah subject to the provisions hereinafter made. I give and bequeath to my son John ninety acres of my land along the Surles laud, from what I give my son Jeremiah to Little Pee Dee river subject to the provisions hereinafter made and if my sons cannot agree on laying out each ones share then my will is that each one choose a man to divide and lay off for them, my wife choosing for my son Jesse, all of whom shall be disinterested freeholders and the division made by them shall be a final adjustment of the division between them, these men having in view the interest of each so as to mark out the lines dividing so as to give each justice. But the bequest of the above named lands to my several sons is made only for their use and benefit during their natural lives and not at their absolute disposal or to become subject to sale for any debt which they contract, but at their death to go to and be the lawful property of their legitimate heirs, the children born of their bodies and in the event that any one of them or more of them should die without any legitimate issue the lands given to him or them shall become the absolute property of my daughters, Elizabeth and Sarah to be equally divided between them."

The defendant Hyatt claimed title under the deed from Ellie Godbold, sheriff, to Jeremiah Rowell, dated March 2, 1857, the recitals of which are stated in the dissenting opinion, and also under a deed from John Rowell, father of plaintiffs, to Jeremiah Rowell, dated April 2, 1856. At the close of the testimony, Judge Prince, on Circuit, directed a verdict for plaintiffs. The defendant Hyatt appeals.

J. W. Johnson, of Marion, and Gibson & Muller, of Dillon, for appellant.

Sellers & Moore, of Dillon, for respondents.

HTDRICK, J. [1] The devise to John was a life estate, with remainder to his children. Testator defined the word "heirs, " as he used it, to mean "children." That obviates the necessity for construction, which would only confuse what he made plain, to wit, his intention that John should have only a life estate, with remainder to his children.

Appellant contends, however, that the record of the will in the "will book" was different from the original, in that testator's definition of the word "heirs" was omitted, and that, as purchasers for value without notice, he and those under whom he claims had the right to rely upon the record copy of the will. It is sufficient answer to that contention to say that appellant neither alleged nor proved the facts necessary to establish that defense. Lupo v. True, 16 S. C. 579; Merck v. Merck, 95 S. 0. 328, 78 S. E. 1027; Carr v. Mouzon, 93 S. C. 161, 76 S. E. 201, Ann. Cas. 1914C, 731.

As Jeremiah was administrator with the will annexed, acceptance by him of the deed from John was inconsistent with the idea that he still had possession of the land for purposes of administration. Therefore it estopped him, and, as it was matter of record affecting his title of which purchasers under him were bound to take notice, it estopped them, to deny that he had assented to the devise to John. A devisee's possession of the devise, with bona fide assent of the executor, ousts the right of creditors to sell the devise under a judgment obtained against the executor alone, after such assent and possession. Harley v. Bates, 2 Brev. 419; Thompson v. Schmidt, 3 Hill, 156, 165; Alexander v. Williams, 2 Hill, 522; Green v. Iredell, 31 S. C. 588, 10 S. E. 545; 18 Cyc. 599. And these authorities show that assent to the devise of a life estate inures to the benefit of the remaindermen.

Nevertheless, as we shall see later, as Jeremiah took nothing by the deed from John, except John's life estate, which he and his grantees enjoyed, it is of little or no consequence whether he assented to the devise or not. But defendant had the right to rely upon the sheriff's deed as a distinct and independent source of title. It becomes necessary, therefore, to determine what interest that deed conveyed.

One who claims title to land under an execution sale must prove a judgment and execution which authorize the sale of the interest which he claims. Sheriff v. Welborn 14 S. C. 480; Bonham v. Bishop, 23 S. C. 96; Parr v. Lindler, 40 S. C. 193, 18 S. E. 636.

The form of judgment and execution against an administrator or executor which is necessary to authorize sale of the property of decedent's estate, when the heirs or devisees have not been made parties, has been determined and pointed out in many cases. Hubbell v. Fogartie, 1 Hill, 167, 26 Am. Dec. 163; Trimmier v. Thomson, 19 S. C. 247; Muggins v. Oliver, 21 S. C. 147; Gowan v. Gentry, 32 S. C. 369, 11 S. E. 82; 18 Cyc. 1075, 1077. The judgment must be recovered upon a debt or liability of decedent, and it must be against his personal representative de bonis testatoris, etc. And the execution must conform to the judgment. A substantial variance from the correct form in such cases is not treated as a mere irregularity, but as matter of substance, which vitiates the sale; for as said in Small v. Small, 16 S. C. 64:

"Forms must be exact when the right is claimed to sell land without making the owner a party."

There is no evidence that the judgment under which the sale was made was recovered upon a debt of William Rowell, the testator. There is no evidence that there was any judgment or execution, except the recitals in the sheriff's deed. But, assuming, without deciding, that, when the judgment and execution have been lost, the recitals of the sheriff's deed may be relied upon to prove them (but Sheriff v. Welborn, supra, seems to hold otherwise), and giving these recitals the utmost effect, they utterly fail to prove a judgment and execution which authorized the sale of the property of William Rowell's estate. They are sufficient to prove only a judgment and execution against "Jeremiah Rowell, administrator, " etc., of that estate. It is needless to cite authority that an administrator or executor has no power to contract debts which will bind the estate, except by special authority, which will not be presumed.

In his deed, the sheriff recites an execution "commanding me of the goods, chattels, houses, lands, and other hereditaments, and real estate of Jeremiah Rowell, administrator with will annexed of William Rowell to levy, " etc., the sum recovered "against the said Jeremiah Rowell, administrator, " and that he levied upon a certain tract of land, or the interest of the said Jeremiah Rowell, administrator in a certain tract" described. He then recites the sale to E. T. Stackhouse, the transfer of his bid to Jeremiah Rowell, and the 'conveyance to the latter of "all that certain tract or parcel of land on which the said Lucy Rowell lives with interest of Jeremiah Rowell therein, " situate, etc., "together with all and singular the members and appurtenances thereunto-belonging, and all the estate, title, and interest which the said Jeremiah Roxcell, administrator of the estate of William Roivell, deceased, of right had in and to the same." The italicized pacts of the deed fail to show that the judgment was recovered upon a debt of William Rowell, or that it was adjudged that the recovery should be out of his estate. The judgment and execution recited were against Jeremiah Rowell, individually, the words "administrator, " etc., added to his name, being merely descriptio persona?. Tobin v. Addison, 2...