Cowan v. Neel , 17 S.C. 588 ( 1882 )

This was an action by the holder of two junior judgments to recover from the sheriff of Abbeville County the proceeds of the sale of the judgment debtor’s lands, sold under plaintiff’s executions, and the assignee of two senior judgments was made a party defendant. A jury trial was waived and the case was tried by Kershaw, J. His findings of fact were that the two senior judgments were obtained by confession in 1855 and 1856, renewed without objection and by consent of the judgment debtor in 1869, destroyed by fire in 1872, and restored under legal proceedings with the debtor’s consent in July, 1878, previous to which time they had been assigned to B. P. Neel, as trustee for the judgment debtor’s wife; that the plaintiffs judgments were obtained in May and June, 1878,. and the executions were soon afterwards levied on the debtor’s-lands, which were sold and purchased by B. P. Neel, trustee. The judgment' was that the complaint be dismissed, and on plaintiffs-appeal to this court, the judgment was affirmed.. Seld:

April 14th, 1882. S. 0.. Oason, for appellant; M. P. DeBrxM, contra.

1. That this court has no power to review the findings of fact by the Circuit Judge.

2. That without considering the effect of a simple admission, or whether any one other than the judgment debtor could claim the benefit of a presumption of payment from lapse of time, the clear admission of the debt here given made a new starting point of time from which the presumption ran' and the lien continued while the judgment was a subsisting valid obligation. Opinion by

Mr. Justice Fraser

(sitting in the place of Mr. Justice McGowan),