Moore v. Smith

Citations

• 24 S.C. 316
• 1886 S.C. LEXIS 40

Syllabus

<p>1. Where a verdict has been rendered establishing the legal title of the ■ plaintiff to the land in dispute, but judgment is suspended to await an investigation of the equities sot up by defendant as a defence to the action, an appeal would ordinarily be premature (Whitesides v. Barber, 22 S. C., 47); but the defendant here having moved for a new trial of the issue submitted to the jury, and his motion being refused, he has the right to have his appeal heard now. Code, § 11, ¶ 2.</p> <p>2. Where an administrator filed in the Probate Court an ex parte petition praying the sale of the lands of his intestate in aid of assets, and the heirs were not mentioned in any of the proceedings, in action subsequently brought by the heirs to recover the land from the purchaser at the Probate Court sale it cannot be presumed that these heirs, who were necessary parties to such a proceeding, had been brought within the jurisdiction of the Probate Court.</p> <p>3. In an action by these heirs to recover the possession of this land, the defendant alleged that the purchase money paid by him had been applied to the payment of debts of the intestate. The Circuit Judge properly submitted only the legal issue to the'jury, withholding from their consideration the equitable defence; and upon verdict rendered for plaintiffs, he properly suspended the entry of judgment thereon, and referred the equitable defence to the master for testimony and report.</p>