Herndon v. Moore

Citations

• 18 S.C. 339
• 1883 S.C. LEXIS 4

Syllabus

<p>1. The decision in Davenport v. Caldwell, 10 S. C. 317, that the legislature cannot confer upon Probate Courts jurisdiction in partition, affirmed.</p> <p>2. Proceedings for partition regularly had in the Probate Courf prior to November 27th, 1878, when the judgment in the case of Davenport v. Caldwell was filed, is binding upon all the parties concerned.</p> <p>Per McGowan, A. J.—</p> <p>. 3. The legislature has no power as parens patrios to authorize the Probate judge to sell or partition the property of one not sui juris, especially where the property is owned in common with others.</p> <p>4. The jurisdiction given by the constitution to Probate Courts “ in all matters testamentary and of administration,” does not include the right to make partition.</p> <p>5. And “ business appertaining to minors ” in this grant of jurisdiction, means business peculiar to minors, and, therefore, does not include partition.</p> <p>6. Adult parties to proceedings in partition in a court without jurisdiction, under which the lands are sold, and who receive the proceeds, are estopped from asserting title against the purchasers at such sale.</p> <p>7. Communis error faeit jus is a doctrine exceptional in character, but should be applied where the erroneous opinion has furnished the ground-work and substratum of practice, and has, to a large extent, affected the titles to land.</p>