McKibben v. Salinas

Citations

• 41 S.C. 105
• 19 S.E. 302
• 1894 S.C. LEXIS 94

Syllabus

<p>1. Partition — Assessment—Limitation op Actions. — -Under proceedings for partition in the Probate Court in 1870, a tract of land was vested in A, upon the condition that he pay to his sister, the present plaintiff, a stated sum of money. A conveyed to B with full notice, who mortgaged to C, and C purchased with notice at a sale under this mortgage. ' This action was commenced in 1889, to subject this land to the payment of this assessment. Held, that the action was not barred by the statute of limitations, as there was no adverse possession, nor was the action upon a liability created by statute.</p> <p>2. Common Pleas — Probate Court — Jurisdiction.—This action was properly brought in the Court of Common Pleas, as the Court of Probate had no power in 1870 of enforcing its decrees, and subsequent acts gave no power as to pre-existing decrees; nor could the Probate Court proceed in any matter of partition after the decision in 1878 declaring that such court had no jurisdiction in partition.</p> <p>3. Novation — Presumption.—-The taking by plaintiff of a note from A for the amount of her Probate Court judgment, did not operate as satisfaction, A not having shown such an intention; nor did such act, together with the lapse of nineteen years, raise a presumption of payment of the judgment.</p> <p>4. Parties — Debtor and Former Owner. — To this action by plaintiff against the present owner, to subject this land to the payment of her debt, A, who had parted with all interest, was not a necessary party.</p>