Witte Bros. v. Clarke

Citations

• 17 S.C. 313
• 1882 S.C. LEXIS 67

Syllabus

<p>1. Tbe Court of Common Pleas bas concurrent jurisdiction with tbe Court of Probate in cases of dower. Therefore, after action commenced in tbe Common Pleas for tbe foreclosure of mortgages on a tract of land, and notice of Us pendens filed, tbe Court of Probate cannot entertain jurisdiction of a petition by tbe widow of a former owner for dower in sucb land.</p> <p>2. Tbe rights of the mortgagees against a decree in the Court of Probate granting dower on sucb petition, are not affected by an application subsequently made by them in that Court for leave to become parties and refused upon tbe ground that tbe cause bad ended, nor by their failure to appeal from sucb refusal or from tbe decree for dower.</p> <p>3. No person can appeal from a decree of tbe Court of Probate, except parties to tbe cause. They are tbe only “persons interested” in sucb decree, or that could be “ injured thereby,” within tbe meaning of section 57 of tbe Code of Procedure.</p> <p>4. A mortgagee, put by tbe mortgagor in possession of tbe mortgaged premises for tbe purpose of having tbe rents applied to tbe interest due on tbe debt, must account for sucb rents, and, if so put in possession-before her assignmnent of tbe mortgage to third persons, must credit the same on the debt.</p> <p>5. Where a testator, who died in 1861, bequeathed to bis daughter a sum of money which was not to be delivered until tbe executor had caused tbe same to be secured to sucb daughter, free from tbe debts, control, etc., of any husband she might marry, the executor in 1869 could properly pay over this legacy to the daughter herself, then a married woman, the constitution of 1868 having effected that which the testator directed.</p> <p>6. This money being lent to the husband under the security of his mortgage deed, the wife could assign such mortgage to secure the payment of debts due by the husband. Peker, Bodgm’s & Go. v. Oampbell & Go., and Glmlcscales v. Sail, 15 S. G., 581 and 60% appivved.</p> <p>7. The fact