Simms v. Kearse

• Citation: 20 S.E. 19,42 S.C. 43
• Parties: SIMMS, Clerk of Court, v. KEARSE et ux. SAME v. WILLIAMS et al.
• Decision Date: 26 July 1894
• Court: United States State Supreme Court of South Carolina

20 S.E. 19

42 S.C. 43

SIMMS, Clerk of Court, v. KEARSE et ux.

SAME v. WILLIAMS et al.

Supreme Court of South Carolina

July 26, 1894

Appeal from common pleas circuit court, Barnwell county; James F Izlar, Judge.

Two actions--one by W. Gilmore Simms, clerk of the circuit court of Barnwell county, S. C., against Henry C. Kearse and wife and the other by the same plaintiff against C. A. Williams and others--to foreclose certain mortgages. From a judgment for plaintiff in each case, defendants appeal. Reversed.

James E. Davis, Patterson & Holman, and I. L. Tobin, for appellants.

Joseph M. Skinner and Thos. S. Moorman, for respondent.

POPE J.

These two actions were tried separately in the court of common pleas for Barnwell county, in this state, on its equity side by Judge Izlar. By his decree in each case he adjudged the plaintiff entitled to the relief as prayed for in each complaint. The defendants respectively have appealed from such decrees, but, inasmuch as the issues in each case are the same, arising from identically the same state of facts, an order was passed, by consent, in this court, consolidating the two appeals. It seems that one John Manuel, while a citizen of Barnwell, in this state, departed this life in September, 1857, intestate, leaving as his heirs at law his widow, Mary; his sons, William, John, Melford, and Owen W. Manuel; and his daughters, Mary Bowen and Nancy E. Bowen. He was seised at the time of his death of two tracts of land, one containing 217 acres of land, and the other tract of land containing 186 acres. In April, 1859, an action for partition of said lands among the said heirs at law was commenced in the court of equity for Barnwell, and such proceedings were had in such action that Johnson Hagood, then commissioner of equity for said Barnwell district (now county), was directed to sell said lands, to the end that the proceeds of such sale might be divided among the heirs at law of said John Manuel, deceased, according to their respective rights therein under the laws of this commonwealth. At such sale, which occurred on the 7th November, 1859, the said Owen W. Manuel became the purchaser of said 217 acres of land at the price of $500, and as such purchaser executed his bond to said Hagood, as commissioner in equity, his successors in office and assigns, in the penalty of $1,000, conditioned to pay $250 and interest thereon on the 7th November, 1860, and to pay $250 and interest thereon on the 7th day of November, 1861, and also executed a mortgage of said 217 acres of land to secure the payment of said bond. This bond and mortgage were duly recorded in the office of the register of mesne conveyances for Barnwell county. Of the purchase money only the sum of $139 was credited on said bond as of the 7th November, 1859. And at such sale the said Owen W. Manuel became the purchaser of the second tract, containing 186 acres, at the price of $450; and such purchaser executed his bond to said Hagood, as commissioner in equity, his successors in office and assigns, in the penalty of $900, conditioned to pay $225 on the 7th November, 1860, and $225 on the 7th November, 1861, with interest on each installment from date of bond; and also executed a mortgage of said 186 acres of land to secure the payment of its purchase money. Of the said purchase money only $42 is credited on the bond as of the 7th June, 1859. This mortgage was also duly recorded in the office of the register of mesne conveyances for Barnwell county. On the 7th day of February, 1860, an order was passed in the court of equity confirming the sale of the two aforesaid tracts of land, and directing the commissioner in equity to collect the bonds when due, and pay out the same to the parties in interest. Early in 1861, Johnson Hagood resigned his office as commissioner in equity, and a successor was duly appointed, who served as such until the duties of said office were devolved, by a change in our organic law, upon the clerk of the circuit court. The present incumbent of that office is the plaintiff, who was elected to such office in 1883.

The present plaintiff, at the request of the distributes of John Manuel, deceased, has instituted--in February, 1893--these two actions for the foreclosure of the two mortgages executed by Owen W. Manuel to Johnson Hagood, as commissioner, etc. Owen W. Manuel sold both parcels of land during his lifetime, and died in 1869. Accordingly the plaintiff brought his actions for foreclosure against the present owners, the defendants named in the two actions. The defendants rely upon the presumption of payment arising from the lapse of more than 20 years from November 7, 1861, up to commencement of these actions, February, 1893. The plaintiff insists that such presumptions cannot be allowed to exist (1) because Owen W. Manuel admitted in his lifetime that he had not paid his two bonds, and promised to do so; (2) because the purchasers who now hold said lands had notice from the recording of the mortgages and the proceedings of record in the partition suit that such lands were held under the lien of the mortgages executed by Owen W. Manuel to Johnson Hagood, as commissioner in equity; (3) because the defendants hold such lands as trustees for the distributees of the estate of John Manuel, deceased; (4) because the act of 1791 gives a lien upon lands sold to effectuate partition among heirs at law until such purchase money is paid. We will dispose of these positions in their order.

When it is remembered that Owen W. Manuel, the principal obligor,--whose promise to pay the bonds is relied upon to defeat the presumption of payment arising from the lapse of more than 20 years from the execution of the same by him,--died in 1869, and that more than 20 years have elapsed since 1869 to February, 1893, at which time the actions for foreclosure were commenced, it seems to us that no force can be given to this proposition to repel this presumption of payment. Such a conclusion would be at variance with the well-recognized principles of our laws. Reference to and reliance upon the decision of this court as made in the case of Nobles v. Hogg, 36 S.C. 328, 15 S.E. 359. In that case, a trustee appointed under a will which created a trust, when sued by his cestui que trust, admitted under oath in the trial of the cause that he had never at any time paid a farthing to such cestui que trust. It was there held that, inasmuch as the...