Turbeville v. Flowers

• Decision Date: 06 October 1887
• Parties: TURBEVILLE and Wife v. FLOWERS and others.
• Court: South Carolina Supreme Court

3 S.E. 542

27 S.C. 331

TURBEVILLE and Wife v. FLOWERS and others.

Supreme Court of South Carolina

October 6, 1887

Appeal from Marion county; COTHRAN, Judge.

McIVER J.

On or about the first of January, 1864, Richard Brown departed this life, intestate, leaving as his heirs at law his widow, Mary who has since intermarried with the plaintiff Willis Turbeville, and a number of children and grandchildren, whose names may be found in the record.

The intestate at the time of his death was seized and possessed of three tracts of land and some personal property administration of which was duly committed to C. D. Evans Esq., then commissioner in equity, as a derelict estate under the provisions of the act of 1857. In the fall of the year 1864, the administrator made sale of the personal property, which was bought principally by some of the distributees, though some of them bought nothing at the sales of the personalty. On the fourth of January, 1867, a bill in equity was filed by the plaintiffs calling upon the administrator to account, and asking for partition of the real estate. Accordingly, an order was granted that a writ of partition do issue, and that the administrator do account.

The commissioners made their return, recommending that one of the tracts of land be set apart to the widow of the intestate, then the wife of plaintiff Turbeville, and that the other two tracts be sold for distribution. Some dissatisfaction having arisen among the other heirs at law at this arrangement, Willis Turbeville and wife, on the second of December, 1867, executed a paper, a copy of which is set out in the record, whereby they formally waived the assignment of one of the tracts of land to Mary Turbeville as her portion, and consented that all three of the tracts should be sold on the terms recommended by the commissioners in partition; and on the eleventh of December, 1867, an order was granted by the court of equity, upon the motion of the attorneys for the plaintiffs, confirming the return of the commissioners, except so much thereof as assigned one of the tracts of land to the plaintiff Mary, and directing that all three of the tracts be sold on the terms specified. In pursuance of this order the three tracts of land were offered for sale on the first Monday in January, 1868, when tract marked "A" was bid off by A. II. Ford, tract "B" by Robert Collins, and tract "C" by the plaintiff Willis Turbeville. Ford complied with the terms of sale, and has paid his bond for the purchase money in full. The bond of Turbeville still remains unpaid as part of the assets of the estate of Richard Brown for distribution. Collins, the other purchaser, though he never complied with the terms of sale, and never paid any part of the purchase money, except three bales of cotton delivered to the administrator, (when, does not appear,) went into possession, and he, and those to whom he sold, continued to occupy the tract of land until a resale was made in 1879, 11 years after the first sale, at which resale one Thomas Collins became the purchaser, complied with the terms of sale, and paid the purchase money to the master.

No further step appears to have been taken in the case until the twenty-eighth of March, 1873, when an order was granted by the court, on the motion of the attorney for plaintiffs, for the distribution of the funds in the hands of the clerk of the court of common pleas among several of the heirs named in the record, but not including the plaintiff Mary. After this, the case rested until twelfth of October, 1883, when, on motion of the attorneys for plaintiffs, and with the consent of W. J. Montgomery, Esq., who had in the mean time been employed to represent certain of the heirs of Richard Brown, and with the consent of C. D. Evans, Esq., administrator, an order was granted reviving the action, giving leave to amend the complaint, bringing in certain infant distributees as parties, and allowing the administrator to account.

On the thirtieth of April, 1886, another order was passed referring all the issues of law and fact to J. D. McLucas, Esq., as special master, with leave to report any special matter. In pursuance of this order, the special master made his report, in which, after stating the facts hereinbefore substantially set forth, together with other matters which do not now appear to be in dispute, accompanied with statements of the accounts of the several parties, including that of the administrator, showing the balances due to and by them respectively, he recommends the adoption of the same by the court. To this report exceptions were filed by the plaintiffs, as well as by Mr. Evans, as administrator. The circuit judge overruled all the exceptions, and rendered judgment confirming the report; and from this judgment the same parties appeal, upon the following grounds:

"(1) That the plaintiff Mary Turbeville, nee Mary Brown, her husband, Willis Turbeville, joining her, having waived her right, her husband joining her, to the assignment of the tract to her made by the commissioners in partition as the widow of Richard Brown, and consenting to a sale thereof by the commissioner in equity, ___, A. D. 186--, the said Mary Turbeville was entitled, as of the day of sale of all the real estate of Richard Brown, to-wit, the second of January, 1868, to her distributive portion, one-third, of the proceeds of the sale of the three tracts of land; and also having assignments of John Brown and ___ Brown, heirs at law of Richard Brown, which aggregate a sum of money exceeding the amount of the bond, conditioned for the payment of eleven hundred and fifty-six dollars, she is entitled to have the bond delivered up to be canceled; and the balance due them on assignment to be paid them of the fund in hand; and that the cumulation of interest as reported by the master is unjust and inequitable."

The exceptions of Mr. Evans, as administrator, are as follows: "(1) That he is charged with two hundred and fifty-nine 12-100 dollars, cash received in Confederate currency, which perished in his hands. (2) That he is charged with notes for purchases at sale, viz.: W. W. Durant, $196; J. A. Parham, $210; A. Robbins, $186, --$592, --aggregating five hundred and ninety-two dollars; which, on account of the disordered state of the times in 1865, and the absence of courts, could not be collected, and on the expiration of his term of office, in 1865, were turned over to his successor in office. (3) That he is charged with seventy-five dollars as money received for the estate of Richard Brown, when, in fact, the said money was for taxed costs in the foreclosure of mortgage against Robert Collins, a purchaser of one of the tracts of land of estate of Richard Brown, and which charge against C. D. Evans, as administrator, is unsustained by a particle of testimony."

The special master, in his report,...