McKibben v. Salinas

Citations

• 36 S.C. 279
• 15 S.E. 208
• 1892 S.C. LEXIS 72

Syllabus

<p>1. Lien in Partition — Assessment for Equality. — The statutory lien imposed by the act of 1791 upon lands of an intestate sold for partition, did not attach to a portion of such lands, assigned to one of the dis-tributees, to secure the payment of a sum of money directed to be paid by him to another distributee.</p> <p>2. Partition — Conditional Assignment — Estoppel.—A petition filed in the Probate Court in 1870 by all of the distributees of an intestate, they being adults, sought the partition of the lands of the deceased. Under these proceedings a tract of land was vested in A, conditionally upon the payment of a stated sum to the plaintiff - here, a co-distribu-tee. A, without payment of this sum, conveyed to B, who had full knowledge, and mortgaged to C, who purchased under this mortgage. Held, that neither A, B, nor C could question the proceedings in the Probate Court, and that their title was subject to plaintiff’s right of payment.</p> <p>3. Extent op Decision — Partition in Probate Court. — It does not follow that a question has been overlooked because not discussed in the opinion.' Whether the provisions of the act of 1791 could be applied to proceedings for partition in the Probate Court, was necessarily involved in the decision of this case.</p> <p>4. Jurisdiction — Demurrer.—Whether the remedy here sought could be enforced in the C.ourt o.f Common Pleas, or.only in the original cause in the Court of Probate, could not arise on this demurrer. It should have been raised by demurrer for want of jurisdiction.</p> <p>5. Leave to Answer. — Leave given by this court to defendant to answer over, his demurrer having been overruled on appeal.</p> <p>6. Petition for BEHEARiNG.refused.</p>