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In Foster v. Pruitt, 168 S.C. 262, 167 S.E. 410, 411, the Court, in holding that the Probate Court was empowered to modify or set aside an order previously made, said: "The court of common pleas and any court for that matter, may modify or set aside judgments made therein, if said action be taken in proper time."
Summary of this case from Peagler v. A.C.L.R. Co. et alOpinion
13554
January 11, 1933.
Before SEASE, J., Spartanburg, February, 1932. Order of the Court of Common Pleas reversed, and order of the Probate Court affirmed.
Action by John L. Foster as administrator of the estate of Russell Pruitt, deceased, against Susan Pruitt and others. From an order of the Court of Common Pleas reversing an order of the Probate Court, defendant named appeals.
The order of the Court of Common Pleas, Sease, J., was as follows:
This cause was originally brought in the Probate Court for Spartanburg County by John L. Foster, as administrator of the estate of Russell Pruitt, against Susan Pruitt and others. Susan Pruitt is the widow of Russell Pruitt, deceased, and the other defendants, except the defendant Mrs. L.W. Foster, are his brothers. The defendant Mrs. L.W. Foster holds a mortgage over the interest of Susan Pruitt in the estate of her deceased husband.
This action was brought by the administrator in aid of assets, the complaint alleging, and the proof amply proving, that the personal estate was exceedingly small, and that most of the debts would have to be paid, if paid at all, out of a small tract of land in Spartanburg County. The petition for the sale of the land showed all the facts above alleged, and prayed the Court for an order of sale of the real estate for the purpose of paying the debts of the deceased. The defendant Susan Pruitt was personally served, made default, and a decree of the Probate Court was duly rendered ordering a sale of the property and the payment of the proceeds thereof, after costs and expenses to the administrator, John L. Foster, for the payment of debts.
When the parties herein appeared before the Probate Court for the purpose of having a settlement and using these funds which were in the hands of the Probate Court, realized from the sale of the land, attorneys for Susan Pruitt asserted her claim for such proceeds under the homestead laws of the State. After argument, the Probate Court held that Susan Pruitt, notwithstanding the fact that she was a party to the cause in which the land was sold, and notwithstanding the fact that she had made default, was still entitled to her homestead, and ordered the proceeds, after payment of necessary costs of sale and attorney's fees, turned over to her or her attorneys.
From the judgment of the Probate Court, an appeal was taken to this Court. Attorneys for respondent in a written brief cite only the case of McMaster v. Arthur, 33 S.C. 512, 12 S.E., 308, and base their argument upon it. The quotation in the brief is from the majority decision rendered by Chief Justice Simpson. The attorneys for appellant cite two cases; namely, Culler v. Crim, 52 S.C. 574, 30 S.E., 635, and more specially the recent case of Haddon v. Lenhardt, 54 S.C. 88, 31 S.E., 883. This latter case expressly overrules the case of Ex parte Strobel, 2 S.C. 309, upon which the decision of the majority of the Court in McMaster v. Arthur was based, and adopted the dissenting opinion of Mr. Justice McIver rather than the majority decision of Chief Justice Simpson, thus practically overruling the case of McMaster v. Arthur.
This case, then, as I conceive it, is settled by the cases cited by appellant's counsel. The plaintiff herein asks that the proceeds be applied to the payment of debts. The respondent herein made default, and the Court adjudicated that the proceeds should be so applied. It would seem, then, and it is so decided, that the Probate Judge was wrong in his conception of the law, and that the debts under the circumstances have a prior claim to that of homestead. I quote in support of this view from the case of Haddon v. Lenhardt: "We are unable to see why persons who are made parties to an action are not as fully concluded by a judgment, the necessary effect of which is to destroy their right of homestead, as they would be in any other case. This conclusion is antagonistic to the case of Ex parte Strobel, and it is hereby overruled."
In view of the above, the judgment of the Probate Court is reversed, and the administrator is ordered to pay out the proceeds of the real estate to the debts as proven before him.
Mr. R.S. Moore, for appellant, cites: As to homestead exemption: Sec. 5490, Vol. 3, Code 1922; 33 S.C. 505; 30 S.E., 635.
Messrs. Carlisle, Brown Carlisle, for respondent, cite: Contra view: 2 S.C. 309; 24 S.C. 29; 54 S.C. 88; 52 S.C. 574.
January 11, 1933. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Sease, reversing the Court of Probate for Spartanburg County.
On February 10, 1932, Probate Judge Foster ordered a sale of certain lands in Spartanburg County in aid of assets in pursuance of a proper complaint for that purpose. This decree, among other things, provided: "That the proceeds of such sale be applied first to all taxes due on said land, then to the costs of administration and fees, and then to the payment of any debts against the estate of Russell Pruitt deceased, etc."
It may be stated at the outset that this order ought not to have been granted, if appellant was entitled to a homestead, and would not have been, if timely objection had been made. We must begin the case with this principle clearly in view.
Also that appellant is bound by the decree of the Court till the same is modified or set aside.
The Court of Common Pleas, and any Court for that matter, may modify or set aside judgments made therein, if said action be taken in proper time.
We hold that the order of Judge Foster, dated May 2, 1932, is a modification and setting aside of the order dated February 10, 1932, so far as ordering the application of the proceeds of sale to the payment of debts of Russell Pruitt.
While his decree does not say so in express words, yet the effect is to modify and set aside that part of the decree, and the law looks at the substance and not at technicalities. The cases of Culler v. Crim, 52 S.C. 574, 30 S.E., 635, and Haddon v. Lenhardt, 54 S.C. 88, 31 S.E., 883, relied on by the Court below, were directed to purchasers at the sale, and no Court could upset their titles. These cases were decided on correct principles, and no fault can be found with them. But here the situation is altogether different. The funds are still in the hands of the administrator and not in the hands of the creditor. No innocent purchaser at a public sale is involved. The funds are still in Court, for the administrator is the organ of the Court.
The law of this State provides ways in which a homestead may be waived, and the method here adopted is not one of them.
Let the order of Judge Sease be set out in the case.
It is the judgment of this Court that the order of Judge Sease be reversed, and the order of Probate Judge Foster be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE G. DEWEY OXNER concur.