Stewart v. Blease

Citation4 S.C. 37
PartiesSTEWART v. BLEASE.
Decision Date14 December 1872
CourtUnited States State Supreme Court of South Carolina

4 S.C. 37

STEWART
v.
BLEASE.

Supreme Court of South Carolina.

Dec. 14, 1872.


The Probate Court is not ousted of its jurisdiction in cases of dower, because questions of fact are involved. The Probate Judge has power to decide all such questions, and the remedy is to appeal to the Circuit Court, and apply in that Court for an issue to be joined under the direction of the Court and tried by a jury, as provided by Section 28 of the Act of 1868, and Section 62 of the Code of Procedure. If no such issue is demanded, the Circuit Judge hears the appeal upon the copy of the proceedings, certified by the Probate Judge and filed in the Circuit Court.

Plaintiff in dower may give in evidence a copy of a deed of the United States Marshal purporting to convey to defendant the land in which dower is claimed as the property of her husband, and this without notice of her intention to offer the same, or to produce the original deed.


BEFORE MOSES, J., AT NEWBERRY, SEPTEMBER TERM, 1871.

This case will be understood from the decree of the Circuit Judge, which is as follows:

MOSES, J.

The petitioner, Eliza R. Stewart, filed her petition in the Probate Court for the County of Newberry on the 2d day of November, A. D. 1869, against the defendant, Henry H. Blease,

[4 S.C. 38]

for the recovery of dower in a certain tract of land therein described. By the answer of Henry H. Blease, her right to dower was denied.

The cause came to be heard by the Probate Court, and on the 7th day of February, 1870, John T. Peterson, Esq., as Probate Judge, pronounced his decree, wherein he sustained the petitioner's claim of dower, and ordered a writ for its admeasurement to issue.

From this decree the defendant appealed, on the following grounds, to-wit:

First. Because the Probate Judge erred in allowing the petitioner to offer in evidence a paper, purporting to be a copy of a deed from the United States Marshal to the defendant, for the land described in the petition, without notice of her intention to offer the same, or to require the production of the original.

Second. Because the Probate Judge erred in not sustaining the objection to the jurisdiction taken by the defendant upon the ground that a question of fact had been made by the evidence so important and material as to require the verdict of a jury, which the Probate Judge had no right to empannel.

Third. Because the Probate Judge erred in deciding that the petitioner could not be barred of her dower in consequence of any promise, either expressed or implied, which she may have made before, or even after, the death of her husband.

Fourth. Because the weight of the testimony clearly established that the petitioner did consent and promise to relinquish her dower in the lands described in the petition upon certain conditions, with which the defendant fully complied.

In the trial before me, copies of all the proceedings in the Court below were submitted. From them it appears that the demandant, Eliza R. Stewart, is the widow of Robert Stewart, who, in his lifetime, was seized in fee of a valuable plantation of land, lying in this County, containing about nine hundred and thirty-two acres; that, on the 17th day of February, 1869, the United States Marshal, under a fieri facias, sold the lands, at public auction, to Henry H. Blease, the defendant, at the price of sixteen thousand dollars; and, that, on the same day, but prior to the United States Marshal's sale, Robert Stewart, by deed, conveyed the said lands to the defendant at the price of twelve thousand five hundred dollars. That, by the testimony of the defendant, an arrangement was entered into by Robert Stewart and the defendant that he should purchase the land at the United States Marshal's sale, and when this conversation

[4 S.C. 39]

occurred between them, Mr. Stewart said “there were judgments against him for which the lands now to be sold were to satisfy.” Stewart said, “if the lands sold for more than the judgments, certain persons would enter suit against him in the Bankrupt Court, and never let the money come into his hands.” He asked me (Blease) “to first...

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