Bradley v. Calhoun

April 13, 1921. The opinion of the Court was delivered by This is an action for partition of what is generally known as the John W. Bradley home place; said place contains 148 acres or 153 acres. Appellants contend that they are the children and grandchildren of John W. Bradley, deceased, and as such are entitled to seven-eighths undivided interest in said land, under the will of William Cave. They concede one-eighth undivided interest is in the respondent, who was the only daughter of said John W. Bradley, by a second wife, Julia R. Bradley.

The answer of the respondent denied title in the appellants and claims absolute title in herself as sole heir at law of Julia R. Bradley, the second wife of John W. Bradley; it being contended that the said Julia R. Bradley acquired title to said tract of land by sale by the Probate Judge of Barnwell County in the year 1877 under proceedings instituted to sell said property of John W. Bradley for payment of his debts. Respondent also sets up proceeding, under which it is claimed said sale took place and the deed of Probate Judge to Julia R. Bradley as res adjudicata of the question of title which is at issue in this section, and a further plea of res adjudicata, of said title under certain proceedings in the old Court of Equity, and also sets up statute of limitations, presumption of a grant and adverse possession and a general denial.

Appellants claim title to land in dispute under the will of William Cave, dated May 11, 1849, and probated in the county of Barnwell November 16, 1855. The cause was tried before Judge Bowman and a jury at February term, 1920, and he directed a verdict for the defendant. Plaintiffs appeal, and by six exceptions allege error. Exceptions 1, 2, 3, and 4 will be considered together. They complain of error on the part of his Honor in admitting in evidence the alleged equity records, because it appears affirmatively in said records there was nothing to show that the plaintiffs were ever parties to that proceeding, and there is nothing to show in any paper produced in these records that their names were ever mentioned. The records not even mentioning the remaindermen by name, and there is nothing therein by which it could be presumed that they were parties to that suit.

We do not see any error on the part of his Honor 1, 2 in admitting in evidence for what it was worth the record, in so far as the tract of land, the subject of this controversy, is concerned. But after they were admitted in evidence his Honor should have submitted the question as to whether they were parties or not to these proceedings; for if they were not parties, then the decree of Chancellor Johnstone and Chancellor Inglis did not preclude them from asserting their rights as remaindermen under the will of William Cave. No one shall be personally bound until he has had his day in Court; he must be cited to appear and afforded the opportunity to be heard.

"A judgment against a party not named in the complaint nor any part of the record is void. We cannot presume that one who does not appear to have been a party had his day in Court." Freeman on Judgments (2d Ed.) § 141.

"If the judgment or decree is silent upon the subject of service of summons and the service shown by the return upon the summons is not such as will give the Court jurisdiction, no doubt the judgment is void." Freeman on Judgments, § 133.

If the decrees are void and the parties not served, that is a fatal defect without proof. If it is a voidable judgment and a hidden infirmity which can only appear by proof, in the latter case the infirmity cannot be shown in a collateral manner, but only a direct proceeding instituted for that purpose. Turner v. Malone, 24 S.C. 404.

The contention of the appellants here is that the record does not show they were parties; that by reason of that the judgment is void; that it is not a voidable judgment, but a void judgment. In Finley v. Robertson, 17 S.C. 438 the minors accepted service. Judge Hudson held that could not be done, and says:

"The record of this inferior Court fails to show the law has been complied with in that action, either in making the infants parties, or in the appointment of guardian ad litem; on the contrary, it shows proper steps not taken."

In that case Judge Hudson sustained the judgment as to the adults, and only avoided it as to the infants. Justice McGowan, in delivering the opinion of the Court, says:

"There was no proof offered that contradicted the record, and this case may also be considered as coming within the category of those where the mere exhibition of the record disclosed the fatal infirmity, and, to that extent, made the judgment void." 24 S.C. 406.

Justice Jones, in Clark v. Neves, 76 S.C. 484,57 S.E. 614, 12 L.R.A. (N.S.) 298, says:

"When it appears affirmatively on the face of the record that an infant has not been served with summons, the infant is not bound by the proceedings. Bailey v. Bailey, 41 S.E. 337, 19 S.E. 669, 728, 44 Am. St. Rep. 713. If the record is silent as to such jurisdictional matters with respect to a Court of general jurisdiction, it will be presumed that what ought to have been done was done; but when the record discloses the manner in which service on the infants was attempted to be made, there is no presumption that they were served in any other way. Rice v. Bamberg, 59 S.C. 505," 38 S.E. 211.

The Cave will created a trust. By his will Cave gave the real estate to his executors in trust for his grandchildren, to be equally divided amongst them. The land in specie belonged to the life tenant and the remaindermen. He provided that, if partition was impracticable equally and fairly, the property should be sold and the proceeds invested in other real or personal property by the executors for the use of the life tenants and the remaindermen. This was a trust with implied powers, to be executed in a specific way by partition in kind, and, if that was impracticable, by sale, and a specific declaration that the proceeds of the sale were to be reinvested.

Now, the respondent presents the decrees of Chancellors Johnstone and Inglis to the Court, and insists that these decrees show that the fee to the land in controversy went into John W. Bradley. The Johnstone decree put the land in dispute into John W. Bradley for life, in accordance with the terms and limitations of the will of Cave, and effectually completed what the executors were empowered to do. But the Inglis decree, a new proceeding, reverses the status entirely, and declares it invested in the life tenant, John W. Bradley, in fee simple, and does not require the executors, as required by the will in the trust created, to reinvest the proceeds, and takes from the remaindermen entirely their right to the land, and in no way orders a sale for the purpose of reinvestment. The trustees made no sale, although authorized to sell, but the decree simply put the fee in John W. Bradley without any words of inheritance. The decree of Chancellor Inglis did not direct a deed to be made, but simply put the fee in John W. Bradley. The effect of the Inglis decree destroys the purpose of the will of Cave, and, unless the appellants were before the Court when it was passed, by person, privies, or class, or some competent person to represent them, then what was done, as far as their rights are affected, is an absolutely void act. In Dumas v. Carroll, 112 S.C. 296, 99 S.E., 804, Mr. Justice Hydrick says:

"It has been held by this Court, in cases too numerous to mention, that the Courts have no power to make or modify deeds or wills made according to law. If the right, which is deemed by most people a very sacred one, of disposing of one's property as he may see fit, is to be preserved in this State, the Judges must resolutely set their face against a practice, which is said to be too common, of destroying trusts created by will or deed, or interfering with the testator's or grantor's disposition thereof by consent decrees, especially where the rights and interests of infants or contingent remaindermen are affected. Where the parties are sui juris and their rights alone are affected, they may, of course, do as they please. But where the rights of infants or unborn remaindermen who are only constructively before the Court are to be affected, the Court should see to it that theirs are not injuriously affected. It is the duty of the Courts to preserve and not destroy or allow the parties in interest to destroy or alter trusts and other dispositions of property, where the same have been made and created according to law, and violate no rule of law; otherwise the jus disponendi is of no value.

"It must not be understood that the Courts should exercise such power over trust estates, which is a well-recognized feature of equitable jurisdiction, as may be necessary to prevent them from going to waste, or to make necessary improvements for the maintenance of the beneficiaries, or to change investments, and the like. But even these powers are to be exercised with great caution, and generally so as to preserve rather than to destroy trusts and other dispositions of property."

In Mauldin v. Mauldin, 101 S.C. 1, 85 S.E. 60, a family settlement was agreed on to obviate a family litigation between the members of the family, some of whom were dissatisfied with some of the provisions of the will, and a consent decree was taken, carrying out the proposed settlement. This Court reversed the decree on the ground, among others, that it disturbed the testator's disposition of his property, which cannot be done without cogent reason therefor. Again, in Cagle v. Schaefer et al., 115 S.C. 89; 104 S.E. 321, it is held:

"A guardian ad litem is bound to look after the infant's interest and to act for him in all matters relating to the suit as the infant might act if of capacity; and the mere filing of a formal answer submitting the infant's rights to the protection of the Court is not a sufficient compliance with the guardian's duty. * * * Where a Court of equity has before it all the parties in interest who are in esse, it may for protection of an estate order the sale of lands, which are subject to remainders, etc., and a possible trust, but the power cannot be exercised save in case of a reasonable necessity."

All persons in esse who have any special interest in the subject-matter, without reference to what may be the precise character of that interest, should be made parties. So in the present case these appellants, as remaindermen, under their great-grandfather's will, should have been made parties to any suit that affected their special interests.

The law provides for the manner in which all records in judgment rolls are to be kept, and we have both criminal and civil statutes providing a penalty for any officer allowing them to go out of his possession. The violations of these wise statutes by the officers and attorneys are to be deplored.

As we have said before, the records or parts of them produced and where they come from should be admitted in evidence for what they are worth, but the question should have been submitted to the jury as to whether or not these appellants' rights had been adjudicated by the Johnston and Inglis decrees, or whether, notwithstanding these decrees, they are to be entitled to assert their rights as remaindermen, under the will of William Cave and recover. All presumptions one way or the other should be solved by a jury, under proper instructions of law, by the Court.

The exceptions raising the questions passed on are sustained. Exception 5 is sustained for the reason that, if John W. Bradley only had a life estate in the land, nothing else was sold, and his widow only purchased and acquired such title as he had. If it should turn out the fee was in him, then she purchased that, but there is testimony in the case that John W. Bradley frequently asserted that he had only a life estate, and that his widow knew that, and should be charged with that notice when she purchased at Probate Court's sale. In Sullivan v.Latimer it is held, 35 S.C. 422; 14 S.E., 933.

"Where one purchases * * * land sold as the absolute estate of A, knowing at the time that A held it only as a trustee for his sister and her children, the purchaser takes the land subject to the trust, and becomes himself the trustee, and cannot, while retaining possession, acquire title by prescription, or hold it under the statute of limitations, without clear proof of adverse possession. The mere retention of possession of land, subject to a trust, is not adverse to the cestuis que trust, nor are they barred by laches from asserting their rights because of their nonaction for the space of 20 years."

All questions of ouster, adverse possession, the minorities of the appellants, affecting the different periods of possession, whether of adverse possession, statute of limitations, or presumptions of grant, are disputed questions, and should be submitted to the jury.

The record in the Probate Court does not show that the title was adjudicated other than such title as John W. Bradley had in the land ordered sold, and it was not an adjudication against the appellants.

Judgment reversed, and a new trial granted.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.