Sutton v. Sutton

• Decision Date: 29 November 1886
• Citation: 26 S.C. 33,1 S.E. 19
• Parties: Sutton and others v. Sutton and others.
• Court: South Carolina Supreme Court

1 S.E. 19

(26 S.C. 33)

Sutton and others

v.Sutton and others.

Supreme Court of South Carolina.

November 29, 1886

1. Judgment—Assignment—Compromise—Partition.

Where a judgment creditor agreed with his debtor to reduce his judgment a certain sum. and received it, and afterwards assigned the judgment in general terms to B., he could only convey by the assignment such interest as he then had in it, and, in a suit for a partition of the debtor's estate, B,, as assignee, could only set up the balance on the judgment after it was thus reduced, and not the amount of the entire judgment.

2. Same—Equitable Assignment—Paying the Debt of Another to Protect Future Interest.

When any person having a future interest in property on which there is a judgment lien, for the purpose of protecting such interest pays the debt of the judgment debtor, ho thereby becomes an equitable assignee of the judgment, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit.

3. Partition—Improvements—Rents and Profits.

Where one of several co-tenants has made improvements which add to the value of the common property, and at the same time is chargeable with rents and profits, equity requires that the rents and profits shall be regarded as paid and discharged pro tanto, by the increased value which may have been imparted to the premises by the improvements, and the same equity should be enforced where there is no actual partition, but the land is sold for a division of the proceeds among them. ¹

Appeal from common pleas, York county.

Proceeding to partition real estate among the heirs at law of Jane Sutton. Judgment for plaintiffs. Defendants appealed.

Hart & Hart, for plaintiffs.

C. E. Spencer, for defendants.

McGowan, J. This was a proceeding to partition real estate among the heirs of Jane Sutton under the following circumstances, as wellas we can gather them from the argument and brief in manuscript. It seems that originally the land belonged to Jonathan L. Sutton and his mother, Mary, as tenants in common. On March 8, 1867, a judgment was entered against both Jonathan L. and his mother, Mary, by one Youngblood, as executor of Gillespie, for $978. 34, besides interest and costs. This judgment, of course, was a lien upon the whole land, —the interest of Jonathan L. as well as that of his mother. In 1872, Mary, the mother, died, leaving her interest by will to Jonathan L., who thereby became sole owner. He made efforts to have the judgment scaled, but on December 2, 1873, he was declared a bankrupt, and his assignee in bankruptcy conveyed his interest to Ervine & Steele, lien creditors, who thereupon gave their bond to Jonathan L. to execute titles to him upon the payment of the purchase price agreed upon. In 1876, Jonathan L. died, without having paid the stipulated amount to Ervine & Steele, and in 1878 they sold the land to pay their claim. At that sale the land was bid off by Jane Sutton, the widow of Jonathan L., but titles were made to J. F. Wallace as security for an advance made by him, as we suppose, to Ervine & Steele.

On February 14, 1874, after Jonathan L. Sutton became a bankrupt, but before his death, the distributees of Gillespie, the owners of the Youngblood judgment, (through their attorney in fact, one Garrison,) agreed to compromise the judgment for $800, which was considerably less than its face value, and on that day they gave two receipts, —one to Jonathan L. Sutton for $100, and the other to William E. Sutton for $60, which also acknowledged that he (W. E. S.) had paid previously $400, making in the aggregate $560 paid on the compromise, and leaving unpaid $240. William E. Sutton paid $460. He was not the defendant in execution, and really it does not appear who he was, except that he was spoken of as having an interest in the land "to the extent of one-seventh, " and we suppose he was a son of Jane. The judge found, as a matter of fact, that this money was paid by W. E. Sutton at the instance of the bankrupt debtor, and no credits were placed on the execution, but loose receipts given. In 1877 the balance due on the compromise of the Youngblood judgment had grown to $326. 50, and both the defendants in execution, Jonathan L. and Mary, being dead, Garrison was about to levy on the land for the balance, when William E. Sutton again appeared, and made an arrangement with one B. T. Wheeler, by which he (W.) paid $325. 50, the remainder of the compromise; taking from the judgment creditor a general assignment of the execution, and making an agreement in writing with the said William E. Sutton that, as soon as he (Sutton) refunded to him (W.) the money advanced by him, with the stipulated interest, etc., he (W.) would assign the execution to him. The money was never all actually paid, but William E. paid $100 in March, 1883. Wheeler was made a party, and he set up the judgment to recover the balance due him. And William E. Sutton, one of the heirs, claimedto be the owner of the whole judgment, subject to the rights of Wheeler, and reduced only by the amounts actually paid by J. L. Sutton, $100; and he also claimed that, as the land was sold, he should be paid $700, the amount added to the value of the land by improvements made by him while he was in possession of the land.

The issues were referred to W. B. McCaw, Esq., as special referee, who substantially denied the claims of W. E. Sutton, and, on the contrary, charged him with $665. 75 as rents; holding that, although he paid out of his own money $460, for which the first receipt was given, it was done voluntarily, without the request of the debtor, and without an assignment, or promise of an assignment, pro tanto of the execution, and the same was to that extent satisfied; and, as to the alleged betterments to the land, that, although his improvements had added to the value of the land $700, he was not entitled by law to be paid therefor by his co-tenants.

The cause came up on exceptions before Judge Kershaw, who confirmed the report, except in two particulars: First, he found, overruling the referee in that respect, that the $460 were paid by William E. Sutton on the compromise, "at the instance and request of J. L. Sutton, the defendant in execution; " and, second, reducing the amount for which William E. Sutton should be charged with rent from $661. 25 to $496. 31.

From this decree William E. Sutton appeals, upon the following grounds:

"(1) For error of fact in not finding that the payment of $460 by William E. Sutton upon the Youngblood judgment was made in pursuance of an understanding and agreement, between him and J. L. Sutton, the judgment debtor, that the same should stand open as a security for the return of said money, and interest.

"(2) For error of law in not holding that said payments, made by William E. Sutton, operated as a purchase of said judgment to himself as security as aforesaid, in view of the fact, found in said decree, that they were made at the special instance and request of the judgment debtor.

"(3) For error of law in not adjudging that, at the time of the assignment of the judgment to B. T. Wheeler, (procured to be made by the said William E. Sutton, after the death of the judgment debtor,) there remained due thereon at least the sum of $649, which should go to him after satisfaction made to said Wheeler.

"(4) For error of law in not holding that William E. Sutton is at least a creditor of the judgment debtor to the amount of his payments, and interest therein, and that he should be reimbursed before the payment of any sum to the heirs at law.

"(5) For error of law in holding that, in the event of a sale of the premises, the said William E. Sutton is not entitled to the value of his improvements (found by the referee to be $700) out of the proceeds of sale, before distribution among the heirs, " etc.

The exceptions 1, 2, 3, and 4 make the point that William E. Sutton, having an interest in the land as one of the heirs, paid §460 in order to make certain of the compromise, and Wheeler agreed with him that the judgment should be assigned to him as soon as the advance by Wheeler was refunded, and is in equity the owner of that judgment, and entitled to set it up as unpaid except as to $100 paid by Jonathan L., the debtor. There can be no doubt that the...