Ariail v. Ariail

Citations

• 29 S.C. 84
• 7 S.E. 35
• 1888 S.C. LEXIS 114

Syllabus

<p>1. In 1868 an administrator filed with the ordinary a return, in which was struck a balance against himself, which he claimed to have funded in Confederate securities, and the ordinary endorsed this return as follows: “Examined and passed and the administrator hereby discharged from said administration but in fact this was not a correct return. Held, that this act of the administrator in the proper public office was a disavowal of his trust and the statute of limitations began to run in his favor from the filing of this return.</p> <p>2. This disavowal having been made in 1868, the case was governed by the statute then of force, even as to minors who came of age after the now statute of 1870. Adults were barred in 4 years and 9 months (the administrator having died in 1870) from the date of the return, and the infants in 4 years and 9 months after attaining their majority.</p> <p>3. A judgment against the executor does not arrest the currency of the statute in favor of devisees as to real estate devised and in their possession.</p> <p>4. Nor is it necessary to have a return of nulla bona on such judgment before commencing action against the heirs to subject real estate descended to the payment of this debt.</p> <p>5. A question of fraud not made in the pleadings nor passed upon on Circuit, cannot properly be raised in this court.</p>