The weekly Union times. [volume] (Union C.H., South Carolina) 1871-1894, 1883-01-19
Important Judicial Decision.
PARTITION OF REAL EsrArs--DAvESPouT VS.
CALDWELL REVIEWED

Important Judicial Decision.
PARTITION OF REAL EsrArE--DAvESPouT VS..
CALDWELL Reviewed.
Her.doa ps Moore ct al.
DIR. John N. Herndon died intestate in March
1872, possessed OF considerable real aul person
nj property, leaving surviving him, rs dstribu-
tees, his widow, the plaintiff and six children,
the defendants.
Soon afler his death the plaintiff Instituted
Proceedings in the Court OF Probate against the
other distributes to partition the lands of the
estate, considerable in extent and value.
Four of the defendants were minors represcn-
tel by guardians al litem, and the proceedings
in all other respects were regular aud formal
The Probate Judge, to effect partition, granted
order of sa!c and the lands were sold. The
purchaser complied with the terms of sale and
received titles. The purchase money was also
paid and distributed among the parties.
After the decision in the case of Davenport
vs.. Caldwell, 10 S. c., 3l7, which declared that
the Act of the Legislature giving to the Probate
Court jurisdiction TO partition lands was uncou
s'itutional and void, the plaintiff, fearing that
some of the parties in consequence of that de-
ciSinn, might make an effort to disturb the
proceedings had, rs stated in the Probate Court
instituted this action in the Court Of Common
Pleas against the other distributes to validate
that proceeding in the Probate Court and quiet
the titles Hereunder, and to restrain and perpet-
ually enjoin each and all of the distributes from
prosecuting any action for the recovery of the
lands, or any part ofthem, or any interest there
in, under claim by Inheritance. Tho adult
defendants interposed no objections. The infants
object TO the confirmation prayed for. The clerk
Of the Court, as referee, took the testimony and
reported the record of the proceedings in the
Probate Court that nearly all the purchase
money had been paid into the office Of the Judge
of Probate according 10 the terms of sale, and by
him paid out TO the distributes respectively {;
t1Nnttl &C, g. =.
paid to their guardians duly appointed; that all
the guardianship bonds were good at the time
they were taken that the bonds Of the guar
dians of two of the distributes arc still good,
and that the bonds Of the guardians of two Of
the distributes are worthless.
The Circuit Judge decided that the sales
der the proceedings in the Probltc Court, hay
ing been made pior to the decision in Davenport
vs. Caldwell, should not be affected by that
judgment, and that nj! the parties TO the pro-
cccdings cstoppcd from asserting the inva.
idity Of the sale or questioning the titles of the
purchasers, unless prepared to restore things to
the exact status of the day of sale. Three of
tic minors appealed.
The Suprcme Court, after careful review Of
the decision in Davenport VS. Caldwell, and the
authorities bearing uron the subj ject, a!tirms the
judgment OF the Circuit Court. The Supreme
Court decides that the decisions in Davenport
VS.. Caldwell must stand without limitations or
"
arising thereafter.
All persons of full age who were parties to the
proceedings in the Probate Court in this case
are estcpped from denying the validity of the
proceedings. Aa to the minors, although the
doctrine Cf technical estoppe! does not apply to
them, yet higher right is invoked in behalf OF
the Iona fde purchasers. These are cases in
which communis error fdcH jus and in which there
fore the Courts will sanction prevalent con
struction which is erroneous. rather than dis
turb titles which have been settled under such
construction.
The Act of September 2lst, 1853, "To define
the jurisdiction and regulate the practice of the
Probate Court by which jurisdiction ex-
pressly given to that Court TO partition lands,
might well be considered as q contemporanc cous
construct ion of the Constitution. This Act was
re-aflirmed in the Code of 1870 and rc-cnacted
in the General Statutes in 1872. For more than
ten years. until November, 1878. when Daven-
Fort VS. Caldwell was decided, it was general :
accepted as the undoubtcG law of the State
10 the decision of Davenport vs. Caldwell
should be held binding upon all the parties
concerned.
Judgment below affirmed. Opinion by Nc.
Gowan, A. j., Simpson, C. j., AMI McIver, A. J .
concur in the result.
Messrs. David Johnson, Jr., Rawls, Moormar
y Simkins, Culbrcath for appellants. Messrs
Shand, Jones & Jones, George Johnstone 70,
Respondents.