Ketchin v. Patrick

Citations

• 32 S.C. 443
• 11 S.E. 301
• 1890 S.C. LEXIS 74

Syllabus

<p>1. Under levy upon the undivided interests of three tenants in common (there being nine in all) they claimed a homestead each, which was allowed them, M, one of the judgment debtors, having 121 acres assigned to her. The sheriff then sold these three interests in the tract as thus reduced in quantity by these homesteads, and the defendants to this present action became the purchasers. Under partition proceedings subsequently had, these assignments of homestead were adjudged to be nullities because made before partition was effected. It was then adjudged in that case, that 80 acres out of the tract sold should be set apart as a homestead to M, and that the 121 acres previously claimed by her should vest in the said purchasers as a portion of their share. Before this, however, another judgment was obtained against these same three tenants in common, under which their interest in these 121 acres was levied and sold, and was purchased by the plaintiffs in this present action. Held, that neither plaintiffs nor the judgment creditor under whom they purchased, being parties to the partition proceeding, they were not hound thereby, and that all rights acquired by defendant under that proceeding as against the parties to that cause, to the 121 acres, which they did not purchase at the sheriff’s sale, were subject to the lien of the second judgment, and plaintiffs acquired a good title, at least against the three-ninths interest of their judgment debtors.</p> <p>2. A judgment is a lien upon the judgment debtors’ undivided interest as tenants in common in a tract of land, but this lien being subordinate to the rights of the co-tenants to enforce a partition, it is transferred after partition to the debtor’s portion assigned to him in severalty or to his share in the proceeds of sale.</p> <p>3. Where partition has been made by law, none of the partitioners is a warrantor to the alienee of one of them.</p>