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Opinion of the Court.
but, finding that the credit was unfounded, he insisted that he should not be charged therewith. In our judgment the court ought not to have allowed the taxes under the circumstances.
We notice that interest should have been allowed at the rate of eight per cent on the $700 paid by Hastings to Dillman, February 2, 1886, from that date to February 12, being $1.55, as shown by the account annexed to the bill.
The amount found due by the master was $15,694.50, from which he deducted $700 in cash, paid February 2, 1886, and $600 for compensation. We think from the $15,694.50 there should be deducted $701.55, and also $1080 as compensation, as found by the court. This leaves a balance of $13,912.95, and to that extent the decree is modified.
The result is that the decree will be reversed with costs, and the cause remanded with a direction to enter a decree for $13,912.95, with interest at six per cent from February 12, 1886, to the date of the decree.
BEDON v. DAVIE.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DIS
TRICT OF SOUTH CAROLINA.
No. 210. Argued March 16, 1892. – Decided March 28, 1892.
A judgment for the plaintiff's was rendered in August, 1873, in a United
States Court in South Carolina, in an action at law in ejectment, in which a minor was defendant, and appeared and answered by a guardian ad litem, and which minor became of age in December, 1885, and brought a writ of error from this court, under $ 1008 of the Revised Statutes, within two years after the entry of the judgment, exclusive of the term of the disability of the minor. The case involved the title to land in South Carolina under a will made in 1819, the testator dying in 1820. In June, 1850, a suit in equity was brought in a state court of South Carolina, which set up that the title to the land, under the will, was either in the grandmother of the minor or in her sons, one of whom was the father of the minor, the grandmother and the father of the minor being parties defendant to the suit, and the bill having been taken pro confesso
Opinion of the Court.
against all the defendants, and dismissed by a decree made in March, 1851, which remained unreversed, an appeal taken therefrom having been abandoned. The ly title set up by the plaintiff in error was alleged to be derived through his father and his grandmother. In September, 1854, au action of trespass to try title to the land was brought in a state court of South Carolina, and which resulted in a judgment for the plaintiff therein, but to which the plaintiffs in the ejectment suit were not parties or privies. Held, that, as the decree in the equity suit was prior to the judgment in the trespass suit, and as the plaintiffs in the ejectment suit were not parties to the trespass suit, the judgment in the last named suit was of no force or effect in favor of the plaintiff in error, as against the decree in the equity suit.
The case is stated in the opinion.
Mr. S. P. Hamilton and Mr. Mills Dean for plaintiff in
Mr. Edward McCrady, Jr., for W. R. Davie, defendant in
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is an action at law, in ejectment, brought in the District Court of the United States for the Western District of South Carolina, in June, 1873, by Doctor William Richardson Davie and others against James B. Heyward, the younger, and others, to recover a plantation situated in Chester district, in South Carolina, on the Catawba River, and known as Landsford.
Both the plaintiffs and the defendants respectively claimed the property under the will of General William Richardson Davie, the elder, made in September, 1819. The testator died in November, 1820. His will was duly executed to pass real estate, and was duly admitted to probate in the proper court. The plaintiffs were great-grandchildren of the testator, and were four in number. They were the children, and only heirs at law, of William Richardson Davie, doctor of medicine, who was the eldest male issue of Allen Jones Davie, who was a son of the testator.
The defendants were James B. Heyward, the younger, and
Opinion of the Court.
Sarah B., his wife; Mary Wysong and her husband, Dr. R. Wysong ; Alice Bedon and Josiah Bedon, minor children of the late Josiah Bedon and Mary, his wife, now the said Mary Wysong; Hyder D. Bedon; William Z. Bedon ; Julia Izard and her husband, Allen C. Izard ; Jeannie B. Farrow and her husband, T. Stobo Farrow; A. Stobo Bedon; Richard Bedon; and Robin Carr Bedon, a minor.
Sarah B. Heyward, the wife of James B. Heyward, the younger, was called Sarah Bedon before she was married, and was the daughter of Julia A. Davie and her husband, Richard S. Bedon, the said Julia A. being the only daughter of Hyder Alli Davie, who was a son of the testator.
Mary Wysong, the wife of Dr. R. Wysong, was the widow of Josiah Bedon, who was a son of Richard S. Bedon and his wife, the said Julia A. Davie. Alice Bedon and Josiah Bedon were the children of the said Josiah Bedon and Mary, his wife. Hyder D. Bedon, William Z. Bedon, Julia Izard, Jeannie B. Farrow, A. Stobo Bedon, Richard Bedon and Robin Carr Bedon were children of the said Richard S. Bedon and Julia A., his wife. The defendant Josiah Bedon was a minor when this suit was brought, and during the entire time of its pendency, to a final judgment.
The clause of the will of the testator under which the title was claimed by both parties is set forth in the margin.
1 Item I give and devise all the rest and residue of my lands and real estate in the State of South Carolina to my son Frederick William Davie to him and his heirs forever, subject however to the incumbrances mentioned in this will. And it is my will and I do hereby devise that in case of the death of my said son Frederick William, without issue male living at the time of his death, then in that case I give and devise the lands and real estate, so devised as above to the said Frederick William to his brother Hyder Alli Davie to him and to his heirs forever, subject however to the incumbrances in this will mentioned. And in case the said Hyder Alli Davie die without issue male living at the time of his death, then in that case I give and devise the said lands and real estate to the eldest issue male of my son Allen Jones Davie then living when such event shall take place; that is of the sons he may have living at my death, to him and his heirs forever, subject to the incumbrances, directed in this will. And should my said son Frederick William have issue male, and such issue male of my said son Frederick William should, or shall die without issue male living at
Opinion of the Court.
Frederick William Davie, named in the will, died in April, 1850, leaving no issue surviving him. He left a last will and testament, duly executed, appointing as his executors Frederick G. Fraser and William Davie DeSaussure.
Hyder Alli Davie, named in the will, died in June, 1848, before the death of Frederick William Davie. He left no male children, but only a daughter, the said Julia A., who, after the death of General William Richardson Davie, married the said Richard S. Bedon.
Allen Jones Davie, named in the will, was the eldest son and the eldest child of the testator, and when the testator died had three sons and a daughter, the eldest of which sons was Dr. William Richardson Davie, father of the four plaintiffs.
Frederick William Davie, under the will, entered into possession of the plantation and held the same during his lifetime. At his death, Dr. William Richardson Davie entered into the possession of it, and held it until he died, in January, 1854, intestate. In January, 1873, the defendant Heyward and his wife entered into possession of the plantation.
In July, 1873, on the petition of the defendant James B. Heyward for the appointment of a guardian ad litem for the infant defendants Alice Bedon and Josiah Bedon, as minor children of the late Josiah Bedon and Mary, his wife, then Mary Wysong, the said infants residing in the State of Mary
the time of his death, then in that case it is my will and I do devise the lands and real estate, so devised and described above first to my son Hyder Alli Davie and his heirs, and then to the eldest issue male living at the time, of Allen Jones Davie, under the same limitations, and on the same contingencies, and in the same order and manner, as above directed, and devised, should my son Frederick William die without any issue male living at the time of his death, to them and their heirs forever. And should my son Hyder Alli Davie have issue male living at the time of his death and such issue male shall die without leaving issue male living at his death then in that case I give and devise the said lands and real estate so described and devised above should they so have vested under the above contingencies in such issue male to the eldest issue male then living of my son Allen Jones Davie being of his sons living at my death to him his heirs and assigns forever.
Opinion of the Court.
land, an order was made by the Circuit Court appointing said Heyward their guardian ad litem in this cause, and authorizing and directing him to appear and defend the action on their behalf. On August 1, 1873, Heyward, as their guardian ad litem, filed an answer for them, stating that, by reason of their tender years, they were wholly ignorant of the facts and statements set forth in the complaint, and, therefore, not able to admit or deny the same, but that they submitted their case to the discretion of the court and prayed its judgment for their costs and disbursements.
The defendants Heyward and wife, Dr. and Mrs. Wysong, Hyder D. Bedon, William Z. Bedon, Julia Izard and her husband, Jeannie B. Farrow and her husband, A. Stobo Bedon, and Richard Bedon, answered the complaint, in July, 1873, setting up, as a special defence, that Dr. William Richardson Davie, in his lifetime, while in possession of the plantation, executed to Frederick G. Fraser, as executor of Frederick William Davie, deceased, a lease of the plantation; that afterwards, Dr. William Richardson Davie and said Fraser both of them died, and William Davie DeSaussure became the sole executor of Frederick William Davie; that, as such executor, the said DeSaussure, being in possession of the plantation under said lease, was impleaded in the court of common pleas for Chester district, to answer to Lewis A. Beckham and William F. DeSaussure, survivors of themselves and Frederick William Davie, trustees under the will of Hyder Alli Davie, in an action of trespass for breaking and entering the premises in question; that said defendant pleaded not guilty, and the cause was tried before a jury at the fall term, 1855, and the jury found a verdict for the plaintiffs ; that the defendant appealed, and the case was heard upon exceptions, in the Constitutional Court of Errors, the highest court of the State of South Carolina, at May term, 1856; that the appeal and motion of the defendant for a new trial were dismissed, and a judgment was entered in favor of the plaintiffs in that action, September 29, 1856, reciting a special verdict in the court of common pleas, which found certain facts set forth therein, and concluded by stating that if, upon those facts, the court should