Martin v. Bowie

Citations

• 37 S.C. 102
• 15 S.E. 736
• 1892 S.C. LEXIS 3

Syllabus

<p>1. Service of Summons—Collateral Attack..—In action for the recovery of real property purchased by plaintiffs at an execution sale, the defendants, strangers to the action under which the sale was made, cannot question the sufficiency of the acceptance of service of the summons by the judgment debtor in the original action. If necessary, the court would presume an appearance that cured any defect- in service.</p> <p>2. Improper Venue—Waiver—Collateral Attack.—The record of a judgment not disclosing the fact that the defendant was sued in the wrong county, the allegation of such fact could not form the basis of a collateral attack upon the judgment. And such defendant having made no such objection by plea or appeal, it is doubtful whether any person could ever afterwards make it; it certainly could not avail strangers in a collateral attack on the judgment.</p> <p>3. A Levy in proper form, endorsed by the sheriff on an execution, is valid without his entry on the land levied; and a sale under a second levy insufficiently endorsed is valid by reference to the first levy, and because defects in levies may be cured.</p> <p>4. Deed—Proof of Execution.—A deed is not proved by testimony of one of the subscribing witnesses to his own signature and to that of the other witness.</p> <p>5. Ibid.—Ibid.—Lost Papers.—After proof of the death of both subscribing witnesses to a deed, any person, including the grantee, may make proof of the due execution of the deed.</p> <p>6. Parol Evidence—Possession of Land.—Parol evidence of a sale of land, and of the contents of deeds alleged to be lost, may be received where offered only for the purpose of showing possession.</p> <p>Y. Proof of Loss—Trial Judge.—It seems that it is for the trial judge to determine what proof of the loss of deeds is sufficient to authorize testimony as to their contents.</p> <p>8. Evidence—Non-Suit.—Where there is some evidence to sustain the plaintiff’s claim, the trial judge cannot order a non-suit on the