Ex Parte Darby

Full title: EX PARTE: DARBY BRANYON v. SMITH ET AL

Court: Supreme Court of South Carolina

Date published: Jul 30, 1930

157 S.C. 434 (S.C. 1930)

154 S.E. 632

Opinion

12957

July 30, 1930.

Before TOWNSEND, J., Anderson, December, 1928. Affirmed.

Ex parte by Talulah Darby to vacate and set aside judgment rendered in the action of William Branyon, individually and as administrator cum testamento annexo of Thomas M. Branyon, deceased, against Lucinda Smith and others. From a decree dismissing the petition, petitioner appeals.

The decree of Judge Townsend directed to be reported was as follows:

This matter comes before me on petition and motion of Talulah Darby to vacate and set aside a judgment rendered on February 3, 1905, in Court of Common Pleas for Anderson County in the case of Wm. C. Branyon, individually and as administrator cum testamento annexo of Thos. M. Branyon, deceased, plaintiff, against Lucinda Smith, Talulah Darby, et al. For the sake of clearness, it will be necessary to have some knowledge of the facts of the case leading up to the judgment (February 3, 1905) sought to be vacated in this proceeding. Thos. M. Branyon died the 15th day of April, 1882, leaving a will, which was admitted to probate on the 16th day of June, 1882. The will is as follows (omitting formal and irrelevant parts):

"Item 1. I give, devise and bequeath to my beloved son, Wm. Calhoun Branyon, all that tract of land situate in Honea Path Township, containing 180 acres, more or less, being a part of the home tract whereon I now live (then gives description of this tract of land).

"Item 2. I will and bequeath to the children of my said son, Wm. Calhoun Branyon (if he has any) the other portion of my home tract of land, containing 170 acres more or less (then gives description of this tract of land). If my said son should die without children then I desire this tract the first being given to my son to go to John M.G. Branyon's heirs, the other tract to Martha Shirley's heirs.

"Item 3. I will, devise and bequeath to my said son my other tract of land known as the Westly Greer place, containing 117 acres, more or less, if I do not sell the same in my lifetime and if I do, the proceeds I will to go to him.

"Item 4. All the rest and residue of my property of what kind so ever not herein before enumerated I will to my said son, W.C. Branyon, including notes and accounts and all other property."

Testator left as his sole heirs-at-law his widow, Lucinda Branyon, and his son, Wm. C. Branyon. The testator in his will made no provision for his wife. She and her son made an agreement as to her rights in the estate. At the time of the execution of the will and at the death of testator, Wm. C. Branyon had no children and was unmarried. John M.G. Branyon, a brother of Thos. M. Branyon, predeceased Thos. M. Branyon; and Martha Shirley, a sister, died in 1888, after the death of Thos. M. Branyon. Wm. C. Branyon married June 8, 1889, and thereafter, on March 16, 1890, a son was born, named Wm. Sherwood Branyon. In 1904, Wm. C. Branyon, individually and as administrator cum testamento annexo, commenced an action against Lucinda Smith, Talulah Darby, et al. All persons who could possibly have had an interest under the will of Thos. M. Branyon were made parties defendant, or at least their names appeared in the caption of the summons and complaint. The firm of Bonham Watkins represented the plaintiff. The firm of Tribble Prince represented Elizabeth C. Branyon, who was guardian ad litem for Wm. Sherwood Branyon, an infant then about five years of age, T. Frank Watkins, Esq., was guardian ad litem for all of the other infant defendants. The complaint is lengthy, and the Court deems it unnecessary to set out the complaint in full. The formal parts of the complaint, including a chronology of all of the interested parties to the action, are contained in the first thirteen paragraphs. The allegations of the complaint pertinent to the issue in this proceeding are as follows:

"Paragraph 14. That the plaintiff, William C. Branyon, is the owner in fee simple of the land hereinbefore described, but a question has arisen as to the proper construction of the will of the said T.M. Branyon hereinbefore set out, and it is claimed that the defendants have some interest either vested or contingent in said land, and by reason thereof, a cloud has been cast upon plaintiff's title, preventing him from making an advantageous sale of the said lands, or any portion thereof.

"Paragraph 15. That the plaintiff had brought this action for the purpose of having the Court to construe the will hereinbefore set out, and also to procure the decision of the Court as to plaintiff's rights and title to the land in dispute, and to have the cloud removed from plaintiff's title.

"Paragraph 16. That the lands hereinbefore described are farming lands, and are situated near the growing Town of Honea Path, S.C. and can be disposed of in lots to great advantage, and made thereby to yield a much larger revenue than plaintiff now obtains therefrom. That if the Court should decide that plaintiff is not the fee-simple owner of said premises, or any portion thereof, plaintiff desires to be allowed to sell off lots from the premises from time to time as may be found advisable, and to re-invest the funds under order of the Court.

"Wherefore plaintiff prays:

"1. That the absent defendants be served with a summons and complaint herein by publication.

"2. That a guardian ad litem or guardians ad litem be appointed to represent the minor defendants.

"3. That the Court construe the will set out in the complaint, and determine what interest plaintiff has in the property described therein under the terms thereof.

"4. That the plaintiff be declared the owner in fee simple of the premises described in the complaint, or

"5. If the plaintiff should not be declared to be the owner in fee simple of said premises, that he have leave to sell off lots from time to time, under the direction of the Court, as may be found advisable, and to re-invest the proceeds in such property and under such terms as to the Court may seem proper.

"6. For such other and further relief, as may be just and for costs."

The case was heard by Special Judge C.C. Featherstone, who decreed that Wm. C. Branyon was the owner in fee simple of all the lands described in the complaint. The judgment was entered and duly enrolled February 3, 1905, in Court of Common Pleas for Anderson County. No appeal was taken from this judgment.

The movant, Talulah Darby, is seeking in this proceeding, commenced March 12, 1928, to have the decree of Judge Featherstone vacated. In form, she is making a direct attack by motion in the original case. The rule to show cause was issued by Special Judge L.E. Croft, requiring the defendants (respondents) to show cause why the judgment should not be vacated and set aside as to Talulah Darby. The rule to show cause was bottomed on the verified petition of Talulah Darby. She alleges that she was never served with summons and complaint or other process, and that she was ignorant of all proceedings in the original case, and that she did not hear of same until after the death of Wm. C. Branyon, who died in 1927. She also served further notice of motion in November, 1928, on the additional ground that the Court had no jurisdiction of the subject-matter.

The defendants (respondents) J. Furman Evans, Town of Honea Path, S.C. J.M. Mitchell, R.R. Gambrell, C.L. Lollis, A.M. Graham, H.A. Wiles, L.W. Davis, H.B. Roper, Blanche Tice and Elizabeth C. Branyon made return to the rule, alleging, in substance:

(1) That Talulah Darby was properly before the Court in the original case, having been duly served with summons, and that she is now concluded by the judgment rendered in said action.

(2) That said judgment should not now be vacated, no proceeding to vacate having been commenced within three years from the rendition and enrollment of said judgment, and that Section 831 of Volume 1 of the Code of 1922 is a bar to this proceeding, and said statute is specifically pleaded as a bar.

(3) The ten-year Statute of Limitations.

(4) Estoppel.

(5) Laches.

(6) That respondents are innocent third parties, having purchased and improved the lands since the original judgment was rendered and in reliance of the validity of said judgment.

(7) That movant has no meritorious claim.

(8) That Wm. C. Branyon died during the year 1927, and that his personal representative should be made a party, and that the judgment cannot be attacked without notice to his personal representative.

It was referred to H.E. Bailey, Probate Judge, as Special Referee, to take the testimony. The matter was heard by me on the testimony taken and reported by the Referee.

Upon call of the case for argument, the movement, Talulah Darby, through her attorney, moved the Court to set aside and to declare null and void the judgment and decree of his Honor, Special Judge C.C. Featherstone, for lack of jurisdiction of the subject-matter. Two questions confront the Court for answer: First, should the judgment be declared null and void for lack of jurisdiction of subject-matter? Second, should the judgment be set aside as to Mrs. Darby for lack of jurisdiction of her person; she claiming not to have been served with process?

The movant claims that the Court was without jurisdiction to construe the will and to determine the quantity of the estate therein created, and relies upon the statement in Bussy v. McKie, 2 McCord, Eq. (7 S.C. Eq.); 23, 16 Am. Dec., 628: "Equity will not entertain jurisdiction merely to construe a will. Nor will it entertain jurisdiction of a cause involving titles to land * * * no other equity existing."

The respondents rely upon the statement of Chancellor David Johnson in Baker v. Baker, 1 Rich. Eq., 392, 394, that the Court of Equity has the power to sell the absolute fee in lands, on the application of the person having a defeasible fee, against the will of the contingent devisee; the exercise of the power being forced on the Court by necessity, as that is the only means by which equal justice can be done between the parties. "There can be no doubt of the power of the Court of Common Pleas to order a sale of specific property, held either under a trust or under a direct limitation vested or contingent, and a re-investment of the proceeds of sale." Harris v. Harris, 86 S.C. 409, 410, 68 S.E., 628, 629; Cagle v. Schaefer, 115 S.C. 35, 104 S.E., 321. In order to determine whether it was necessary for the Court to exercise its power, it was first necessary that the Court should construe the will and determine the quantity of the plaintiff's estate, and the circumstances creating the necessity for the sale and re-investment. Hence I conclude that the complaint in Branyon v. Smith et al., presented to the Court for its determination a controversy between parties in esse as to legal rights, which urgently required settlement in order to determine whether or not the plaintiff should have a sale of the fee in the land, and whether the fee was his unconditional property or whether the proceeds of sale, if authorized, should be reinvested for his benefit and that of contingent devisees. Gladden v. Chapman, 106 S.C. 486, 491; 492, 91 S.E., 796.

For the foregoing reasons the Court refuses to vacate the judgment for lack of jurisdiction of the subject-matter.

Should the judgment be set aside as to Mrs. Darby for lack of jurisdiction of her person? In the consideration of this question, however, it should be kept in mind that the respondents in this proceeding were not parties to the original action which resulted in favor of W.C. Branyon. The persons who are defending here purchased from W.C. Branyon since the judgment of February 3, 1905, and in reliance on it. All of the land which was decreed by the Court to be owned in fee simple by W.C. Branyon has been conveyed in fee simple to the respondents. So this controversy is now between Mrs. Darby, named as defendant in the original action, and the respondents, innocent purchasers for value, without notice of any infirmity in the judgment, and upon the faith of the validity of the judgment, in form, Mrs. Darby is making a direct attack upon the judgment. Her right, under the circumstances, to do so as against strangers to the judgment, may well be doubted, especially as the purpose of this proceeding by her is to recover the land involved in the former suit, as against these strangers, and the infirmity claimed does not appear affirmatively from the record. Of course a collateral attack could not be successfully maintained, under these circumstances, for it would take evidence to overcome the presumption of the validity of the judgment, and on a collateral attack no testimony is admissible. While I am in doubt as to whether the attack being made can, under these circumstances, be maintained as against strangers to the original judgment, who have purchased in reliance on the record, I will consider this question of fact as to service of summons on Mrs. Darby as if made in a direct attack on the judgment. Was Mrs. Darby served with summons? She and her husband and daughter testify that she was not served. She has also offered other testimony in support of her contention. Judge Watkins, Judge Bonham, Judge Featherstone, and T. Frank Watkins, Esq., as well as other witnesses, testify to circumstances tending to sustain the presumption as to service. The recitals in order of reference, report of Referee, and decree of Judge Featherstone, say all of the parties are before the Court. The judgment roll contains proof of service on all of the defendants except Mrs. Darby. There is no affidavit of service as to her in the judgment roll. She was living at Newberry, S.C. when the action was commenced. The other resident defendants were living near Honea Path. All of the defendants near Honea Path were served by G.Y. Moore. All of the nonresidents were served by publication. The judgment roll is complete as to all papers except there is no affidavit or certificate as to service on Mrs. Darby. Mr. Moore was not delegated to serve Mrs. Darby. He was only delegated to serve the defendants who lived near Honea Path. Mrs. Darby's brothers, nephews, and nieces were served with summons. The records of Bonham Watkins and Elizabeth Branyon, made just prior to the commencement of the action, show that the residence of Mrs. Darby was known to them at that time. The presumption is that Mrs. Darby was served with summons; the older the judgment, the stronger the presumption. This presumption exists in favor of the jurisdiction of the person when a direct attack is made upon a judgment. Our Courts have uniformly refused to vacate judgments for lack of jurisdiction of the person after a lapse of twenty years. As said by Chancellor Harper, in Cruger v. Daniel, Riley, Eq., 102, 110, where there was no proof of service of process of any kind: "We have no doubt but that we must recognize the validity of the decree of 1790, and that it is conclusive as to everything determined by it, on all who were parties to it, and their representatives and privies. We have no doubt either, but that every presumption is to be made in favor of the regularity of the proceedings of the Court, and that we must take for granted that all persons were properly made parties, on whose rights as parties the decree purports to decide. This is the presumption in every case in relation to the proceedings of Courts — and more especially after so great a lapse of time, and with us, where records are so carelessly preserved. If we should require the production of every subpoena, with proof of service, or the proof of every order of publication to make parties, it would be to obliterate all the ancient proceeding of our Courts."

So in 1807, Chancellor James, in Coit v. Owen, 2 De Saus., 459, declining to vacate a decree rendered in 1787, said: "Nothing would more shake the title to property in this country, or render its tenure more uncertain than thus by a side wind to overturn a decree of this Court."

Almost any reasonable presumption of fact will be indulged in order to sustain rights which are asserted under a decree which is twenty years old. Thompson v. Thompson, 91 Ala., 591, 8 So., 419, 11 L.R.A., 443.

In Clyburn v. Reynolds, 31 S.C. 112, 9 S.E., 973, 978, the Court says: "It must be remembered that this record is now an old one — over twenty years. * * * It would be very dangerous, after such lapse of time, to hold that the mere absence from the record of affidavits. * * * Should render invalid proceedings under which important rights have been adjudicated and valuable titles been acquired."

"If the record is silent as to such jurisdictional matters with respect to a Court of general jurisdiction, it will be presumed that what ought to have been done was done." Clark v. Neves, 76 S.C. 490, 57 S.E., 614, 616, 12 L.R.A. (N.S.), 298. In the case against Clark v. Neves, supra, the Court further says: "In view of the long lapse of time, the posibility that portions of the record may have been lost or misplaced, and the presumptions that must be indulged wherever the record is silent, we must hold that plaintiffs were parties to the proceedings in the Probate Court, and were thereby divested of all their interest in the premises."

In Ex parte Gray, 48 S.C. 569, 26 S.E., 786, 787, the Court says: "The proof of service, aided by the recitals in the orders, is sufficient. All presumptions must be indulged in favor of the jurisdiction of a Court of general jurisdiction. To avoid such a judgment for want of jurisdiction, the jurisdictional defects must appear affirmatively on the record."

"The Court, in Coogler v. Crosby, 89 S.C. 509, 72 S.E., 149, says: "The entire absence of proof of service is not to be taken as conclusive evidence that no such service was made; on the contrary, the Court before which the judgment roll is offered in evidence must presume that the Court, on the hearing of the case in which the judgment was rendered, had before it proper proof of service of the summons, or it would not have rendered the judgment."

It was held by the Court in the case of Prince v. Dickson, 39 S.C. 477, 18 S.E., 33, that a certificate by the sheriff declaring a summons to have been personally served by his special deputy is a sufficient service by the sheriff, and shows jurisdiction acquired by the Court, and after a lapse of seventeen years the Court would assume, if necessary, that the sheriff was present when his deputy handed it by his direction to the defendant. The judgment in this case was sustained, although the deputy sheriff and the movant both testified that service had not been made.

The law is well settled in this jurisdiction that a purchaser who acquires real property under a voidable judgment cannot be affected by evidence de hors the record, and the title is good if acquired before the judgment is vacated. Hunter v. Ruff, 47 S.C. pages 551, 553, 554, 25 S.E., 65, 58 Am. St. Rep., 907; Ex parte Pearson, 79 S.C. 307, 60 S.E., 706; Gladden v. Chapman, 106 S.C. 490, 91 S.E., 796; Bradley v. Calhoun, 116 S.C. 20, 106 S.E., 843; Fleming v. Chappel, 118 S.C. 290, 110 S.E., 148; Turner v. Malone, 24 S.C. 399.

From the evidence I find that the respondents are innocent purchasers for value in reliance on the judgment record, and the testimony of the petitioner and of her husband is insufficient to overcome, after a lapse of twenty years, the presumption that she was served with the summons, and I conclude that, under the above-cited authorities and the contradictory evidence, the Court would not be justified in vacating the judgment, thereby divesting the respondents of their titles, acquired for value in reliance on the judgment.

As the judgment and decree has been found to be binding in its effect on the movant, it is improper for me to review it or to search for error therein.

The defense of the respondents as to the three and ten-year statutes of limitations, interposed as a bar to this proceeding, is overruled, as being inapplicable to the facts of this proceeding.

The defenses of estoppel and laches are also overruled.

Under the facts of this case, the land now being in the hands of strangers, the Court is of opinion that it is not necessary to have a personal representative of W.C. Branyon made a party.

After consideration of the evidence, I find from the evidence that the movant has failed to overcome the presumptions from the record, that she was served with summons in the original case, and that the Court had jurisdiction of the subject-matter. The judgment is binding upon Mrs. Darby, the movant, and the motion to vacate the judgment is therefore refused.

Mr. B.F. Martin, for appellant, cites: Estate in William C. Branyon was a fee defeasible: 146 S.C. 194; 129 S.C. 345; 118 S.C. 111; 115 S.C. 275; 102 S.C. 178; 102 S.C. 475. Whether party was served with summons is question of fact: 22 C.J., 643, 632, 726. Opinion or conclusion as to the facts is for the Court: 22 C.J., 485. Recital is not part of judgment: 33 C.J., 1095, 1194-95. Judgment against party not before the Court void: 33 C.J., 1074-5, 1072-3; 144 S.C. 509. Void judgment: Freeman Judgments (4th Ed.), Sec. 117; 60 A.S.R., 643; 111 Pac., 785; 68 Pac., 446; 15 R.C.L., 841. Presumption of service rebuttable: 24 C.J., 68, 76, 79, 82, 156, 157; 84 S.C. 275; 127 S.C. 215. Defense of bona fide purchaser must be specially pleaded: 95 S.C. 328; 93 S.C. 161; 59 S.C. 137. Elements of defense of bona fide purchaser: 57 S.C. 6; 8 C. J., 1146-7; 2 Pom. Eq. Jur., Sec. 745; 48 S.C. 496; 112 S.C. 555; 57 S.C. 121. Purchaser must make reasonable inquiry: 32 Cyc., 512; 120 U.S. 605. In absence of statute Court cannot render declaratory judgment: 33 C.J., 1097; 12 A.L.R., 53; 146 S.C. 194. Jurisdiction at law: 33 C. J., 1097. Jurisdiction in equity: 1 Pom. Eq. Jur., Sec. 652; 58 S.E., 590; 15 L.R.A. (N.S.), 599; 2 McC. Eq., 23; 2 McC. Eq., 59; 40 Cyc., 1838-1840. Not a suit to remove cloud on title: 32 Cyc., 1314, 1315; 12 A.L.R., 52, 73; 5 R.C.L., 662; 67 Am. Dec., 111; 11 C.J., 920; 85 S.C. 543; 64 S.C. 229; 89 A.S.R., 561. Complaint does not show case for sale and reinvestment: 115 S.C. 35; 135 S.C. 188; 148 S.C. 62. "Heirs" must be determined as of time of distribution: 116 S.C. 125; 123 S.C. 371; 104 S.C. 95; 102 S.C. 178; 85 S.C. 383.

Mr. A.H. Dagnall, for respondent, cites: Trial Court presumed not to have considered incompetent testimony taken by Master: 133 S.C. 1; 92 S.C. 501; 94 S.C. 652; 96 S.C. 44; 98 S.C. 8; 109 S.C. 160; 98 S.C. 289. Courts of Equity have jurisdiction to remove clouds from title: 137 S.C. 463. Power of Court to sell estates of remaindermen: 3 Rich. Eq., 1; 33 S.C. 302; 66 S.C. 155; 86 S.C. 409; 115 S.C. 43. Jurisdiction once obtained Court of Equity will give complete relief: 21 C.J., 134, 137, 138; 83 S.C. 176; 109 S.C. 310. Jurisdiction: 15 C.J., 723, 729, 733, 734; 106 S.C. 492; 84 S.E., 933. Presumption raised by lapse of twenty years: 1 Hill Eq., 378; 17 S.C. 487; 72 S.C. 320; 78 S.C. 155; 1 Rich. Eq., 299. Presumption of service: 79 S.C. 307. Purchaser of real property under voidable judgment cannot be affected by evidence outside the record if title acquired before judgment is vacated: 47 S.C. 551; 79 S.C. 307; 106 S.C. 490; 116 S.C. 20; 118 S.C. 399; 24 S.C. 399; 144 S.C. 525. Statute a complete bar: Code of Proc., Sec. 831. Equity does not grant useless relief: 34 C.J., 433. Petitioner must show merit in claim: 34 S.C. 452; 56 S.C. 96; 79 S.C. 53; 137 S.C. 464. Personal representative of Branyon necessary party: 2 Rich. Law, 111; 34 C.J., 352. Petitioner should have spoken promptly: 43 S.C. 441.

July 30, 1930. Opinion of the Court was delivered by

MR. JUSTICE CARTER.

The facts and issues involved in this case are set forth in the decree of his Honor, Judge William H. Townsend, who heard the case. We agree with the conclusion reached by Judge Townsend. Therefore the exceptions are overruled, and the judgment of the Circuit Court affirmed.

MR. CHIEF JUSTICE WATTS concurs.

MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur in result.

MR. JUSTICE COTHRAN (concurring in result):

This is an appeal from an order or decree of his Honor, Judge Townsend, dated December 21, 1928, refusing a petition and motion of the petitioner, Talulah Darby, a daughter of John M.G. Branyon, to vacate and set aside a judgment rendered on February 3, 1905, in the Court of Common Pleas of Anderson County, in the main cause above entitled, upon the ground that the Court did not have jurisdiction of the subject-matter of the action, and upon the further ground that the petitioner, Talulah Darby, though named as a party defendant in the suit, was not made a party thereto by personal service of the summons and complaint, or otherwise.

On March 12, 1928, the petitioner filed her petition and obtained from the Court a rule to show cause why the judgment referred to should not be set aside as to her, upon the grounds stated above. The petition and order were served upon a number of persons who had purchased from W.C. Branyon severally certain portions of the real estate involved, namely: J. Furman Evans, the Town of Honea Path, John Frank, J.S. Fowler, J.M. Mitchell, R.G. Gambrell, C.L. Lollis, J.A. Alewine, A.M. Graham, H.A. Wiles, L.W. Davis, H.B. Roper, E.J. Lewis, W.A. Pinson, Mrs. Blanche Tice, and W.R. Wright, and Mrs. Elizabeth (W. C.) Branyon, individually and as administratrix of the estate of W.C. Branyon, deceased, and Mrs. Alice L. Sykes.

The respondents made return to the petition and rule denying the allegation that there was no service, and pleading additional defenses, as set out in Judge Townsend's decree and order herein.

The matter was referred to a Special Referee to take the testimony and report the same, who performed that duty on December 1, 1928.

On December 21, 1928, his Honor, Judge Townsend, filed his decree dismissing the petition and motion, and from it the petitioner has appealed.

The case is quite complicated, and a review of the antecedent facts appear essential to a proper determination of the issues involved.

Thomas M. Branyon lived in or near the Town of Honea Path. He owned at least three parcels of land probably contiguous — 180 acres, a part of the home tract, 170 acres also a part of that tract, and 117 acres known as the Wesley Greer tract. He died April 15, 1882, leaving a will dated October 22, 1878, in which he failed to appoint an executor. His sole heirs at law were his widow, Lucinda, and a son, William Calhoun Branyon, hereinafter referred to as W.C. Branyon. The son was unmarried at the time of the death of the testator, Thomas M. Branyon, but later, in 1889, married. Two sons were born of the marriage — one, William, born in 1900 and died in 1906; the other born in 1908 and died in 1921. W.C. Branyon died in September, 1927, without leaving a surviving child.

The testator devised the 180-acre tract to his son, W.C. Branyon, by the first clause of his will, apparently an absolute fee-simple estate, but in a subsequent clause of the will this provision appears: "If my said son (W.C. Branyon) should die without children," the tract was to go to the heirs of the testator's brother, John M.G. Branyon.

As stated, W.C. Branyon, although married in 1889 and having had two sons born of that marriage, both of whom predeceased him, died in 1927 "without children."

The testator's brother, John M.G. Branyon, died in 1866, sixteen years before the death of the testator in 1882. His heirs at law, as of the date of the death of the testator, were his sons and daughters, R.O. Branyon, J.L. Branyon, Emily Pruitt, and the petitioner, Talulah Darby. Later the daughter, Emily Pruitt, died, leaving as her heirs at law her husband and seven children.

The testator devised the 170-acre tract "to the children of my said son, Wm. C. Branyon (if he has any)," and coupled the devise with the same limitation as above set forth:

"If my said son should die without children," the tract was to go to the heirs of the testator's sister, Martha Shirley. She died in 1888, after the death of the testator, leaving as her heirs at law a daughter, Carrie Saul, and a number of grandchildren, children of her two daughters, Martha Gantt and Jane Donehoo, who predeceased the testator.

The testator devised the Wesley Greer tract, 117 acres, to his son, W.C. Branyon, absolutely. No question has arisen as to this devise.

The will contained also a residuary clause by which his estate not therein disposed of was devised and bequeathed to his son, W.C. Branyon.

For some reason not disclosed, the testator made no provision in his will for his widow, Lucinda. She instituted proceedings in dower, and thereupon a compromise agreement was entered into between her and W.C. Branyon, in September, 1882, whereby the said Mrs. Lucinda A. Branyon received a certain portion of the land of said deceased, including his homestead, for and during the term of her natural life, in consideration whereof she conveyed to the said William C. Branyon all other interest that she had in the estate of Thomas M. Branyon.

The widow, Lucinda, died in 1888, leaving as her heirs at law, the son W.C. Branyon, and three children by a former marriage. They and their heirs at law were made parties to the suit hereinafter referred to, the suit in which the judgment which is attacked by the petitioner in the present proceeding was rendered. The same statement is applicable to all of the heirs at law of the brother, John M.G. Branyon, and of the sister Martha Shirley, except the petitioner, Talulah Darby, a daughter of John.

In May, 1904, the son, W.C. Branyon, instituted an action in the Court of Common Pleas of Anderson County for the declared purpose of having the will of Thomas M. Branyon construed and of having it adjudicated by the Court that he was the owner in fee-simple of the three tracts described in the complaint — the 180-acre tract, the 170-acre tract, and the 117-acre Greer tract. It appears beyond question that all of the heirs at law of the various persons who might possibly be interested in the real estate were made parties defendant except the petitioner in the present proceeding, Talulah Darby. She contends that she was never served with copies of the summons and complaint. It is conceded that in the judgment roll there is no documentary evidence of service upon her, and there is no direct parol evidence of the fact elicited in the present proceeding.

The report of the Special Referee was in favor of the plaintiff, W.C. Branyon, and was confirmed by a decree of his Honor, Special Judge (now Circuit Judge) Featherstone, dated February 3, 1905. The report of the Referee and the decree of the Circuit Judge both declare that all of the parties interested were properly before the Court. The decree of Judge Featherstone passes upon the title of W.C. Branyon to both the 180-acre tract and the 170-acre tract. As to the 170-acre tract, his Honor held that, as W.C. Branyon had no living children at the time of the death of the testator, the devise of that tract to the children of W.C. Branyon, "if he has any," lapsed; that consequently it became intestate property and vested in the widow, Lucinda, and the son, W.C. Branyon; and that she having conveyed her entire interest to him, he became seized of the whole.

It is not necessary to discuss the correctness of this construction, as to which there may be a question, as all of the heirs who could possibly have asserted a contrary interest in the 170-acre tract were properly before the Court and are bound by the decree — in fact their interests are not at all involved in the present proceeding, only the interest of Talulah Darby, who claims as an heir of the brother John G. M. Branyon.

As to the 180-acre tract, his Honor held that the heirs of John M.G. Branyon took no interest at all in the land. He held as follows:

"We are next to inquire what interest the said W.C. Branyon took under said will in the one hundred and eighty-acre tract of land described in item one of the will. In order to do this, we must determine the extent to which this item of the will is modified by the words used in item two of the will, to wit: `If my said son should die without children, then I desire this tract, the first being given to my son, to go to Jno. M.G. Branyon's heirs, the other tract to Martha Shirley's heirs.' Remembering that the primary and chief object of the testator's beneficence was Wm. C. Branyon, and remembering further that the law favors the early vesting of estates, and remembering also that next to the said Wm. C. Branyon, the testator desired to provide for the children of Wm. C. Branyon, I hold that the heirs of Jno. M.G. Branyon have no interest, whatever, in the said tract of land. There is nothing whatever in the will tending to show that the testator intended to cut down Wm. C. Branyon's interest in the property to a life estate only. It is evidence to my mind that his real intention was to give all his property, except the one hundred and seventy acres embraced in item two of the will, to Wm. C. Branyon absolutely and as to that tract, that he intended to give it directly to the children of W.C. Branyon, if he should have any. I am convinced also that the testator only desired to provide for the heirs of Jno. M.G. Branyon, and of Martha Shirley, in the event that Wm. C. Branyon should die without ever having any children. It will be observed that as to the one hundred and eighty-acre tract described in item one of the will, not only were there no words to indicate the intention of limiting the life estate of Wm. C. Branyon, but also that there is no provision in any instance for the children to take an interest in it by way of remainder or otherwise. Only one of Jno. M.G. Branyon's heirs has answered in this case, and that is the minor, Moffet Pruitt, who has filed a formal answer by his guardian ad litem. The adult heirs of Jno. M.G. Branyon, by their failure to answer, have admitted the allegations of the complaint, and the claim of the plaintiff to the fee-simple title in said land. If any interest was intended by this will to be given to the children of W.C. Branyon in the one hundred and eighty-acre tract of land, it was no more than the interest given by a fee-conditional deed, and a child having been born to W.C. Branyon, and being now in esse, W.C. Branyon would have a right to convey the property."

I do not agree with this construction. The devise was of a fee-simple estate to W.C. Branyon, but coupled with it was the limitation that, if he should die without children, the tract should go to the heirs of John M.G. Branyon. He being dead at that time, there was no question as to who his heirs were; a clear case of an executory devise in their favor, which upon the death of W.C. Branyon in 1927, without children, vested in said heirs, giving to Talulah Darby one-fourth undivided interest.

The following cases show that the estate in Wm. C. Branyon was a fee-defeasible upon a specific event, to-wit, his dying without children: Drummond v. Drummond, 146 S.C. 194, 143 S.E., 818; Wilson v. Poston, 129 S.C. 345, 123 S.E., 849; Kennedy v. Rogers, 118 S.C. 111, 110 S.E., 107; Hall v. Hall, 85 S.C. 475, 67 S.E., 735; Schnell v. Sottile, 115 S.C. 275, 105 S.E., 415; Davis v. Hodge, 102 S.C. 178, 86 S.E., 478.

We come then to the vital question in the present proceeding, whether the petitioner, Talulah Darby, is concluded by the decree of his Honor, Judge Featherstone, dated February 3, 1905.

The petitioner denies that she is so concluded for two reasons:

(1) That the Court was without jurisdiction to entertain the action which resulted in said decree.

(2) That she was not properly served with process therein.

I do not think that there can be a doubt as to the correctness of the proposition that, where the sole object of the plaintiff is to procure an adjudication upon the construction of a will, dissociated from some particular equity, a Court of Equity would be without jurisdiction to entertain the action.

In Bussy v. McKie, 2 McCord, Eq., 23, 16 Am. Dec., 628, it was held, quoting syllabus: "Equity will not entertain jurisdiction merely to construe a will. Nor will it entertain jurisdiction of a cause involving titles to land, when no discovery or partition is sought; the defendant not being in possession of any title deeds necessary to enable the complainant to sue at law, and no other equity existing. A Court of Law is as competent to construe a will as a Court of Equity."

See, also, Anway v. R. Co., 211 Mich., 592, 179 N.W., 350, 12 A.L.R., 26; 33 C.J., 1097. 40 Cyc. 1838; Willing v. Auditorium, 277 U.S. 274, 48 S.Ct., 507, 72 L.Ed., 880; Drummond v. Drummond, 146 S.C. 194, 143 S.E., 818; 1 Pom. Eq. Jur. (4th Ed.), § 652; Hart v. Darter, 107 Va., 310, 58 S.E., 590, 15 L.R.A. (N.S.), 599, 13 Ann. Cas., 1; note 129 Am. St. Rep., 80.

Attention is called to the Act of 1922, 32 Stat., 967, permitting declaratory judgments in certain cases, which would affect the conclusion above announced. It is without application, manifestly, to the present case. Consult the case of Anway v. R. Co., 211 Mich., 592, 179 N.W., 350, 12 A.L.R., 26, upon the question of the constitutionality of such acts.

If the plaintiff had sought in his complaint nothing more than a construction of the will of Thomas M. Branyon, I think that the Court could not have entertained jurisdiction of his action. An examination of the complaint and of the facts therein stated discloses a very embarrassing situation in which the plaintiff was placed; under the will, he held a fee-simple defeasible title to the 180-acre tract, defeasible upon his dying without children; the heirs of John M.G. Branyon held an interest contingent upon the defeasance of W.C. Branyon's fee; W.C. Branyon had a living son at that time, a boy about 5 years old; it appeared reasonable that the boy would outlive him, in which event the defeasance would disappear; the land was partly or perhaps wholly within the corporate limits of the Town of Honea Path, a thriving, bustling town; as farm land it could not possibly be as remunerative as if cut up into town lots and sold. Under these circumstances it appeared improbable that the title of W.C. Branyon would be defeated by his death without children, and this no doubt is why the adult defendants, who were unquestionably properly made parties, took absolutely no interest in the action which W.C. Branyon instituted. The action was then brought with a double purpose: Either to have the fee-simple title adjudicated in W.C. Branyon, or, if held to be a fee-defeasible in him with an executory devise over to the heirs of John M.G. Branyon, that he be permitted, instead of holding the land as farm lands, to sell it as town lots, necessarily more remunerative, and to invest the proceeds for the benefit of the executory devises in the event that they should become entitled to the estate upon a defeasance of W.C. Branyon's title.

Unquestionably, if W.C. Branyon had made no claim to the absolute, indefeasible, fee-simple title to the 180-acre tract, and had recognized the situation to have been as I think a construction of the will required, as above stated, he would have had the right to institute an action in equity to permit him to adopt the alternative course above indicated.

It has been held in Baker v. Baker, 1 Rich. Eq., 392, that the Court of Equity has the power to sell the absolute fee in lands, upon the application of the person having a defeasible fee, even against the will of the contingent executory devisee, provided his interests be protected and it be shown to be for the best interests of all concerned.

"There can be no doubt of the power of the Court of Common Pleas to order a sale of specific property, held either under a trust of under a direct limitation vested or contingent, and a reinvestment of the proceeds of sale." Harris v. Haris, 86 S.C. 309, 410 68 S.E., 628, 629.

See, also, Bofil v. Fisher, 3 Rich. Eq., 1, 55 Am. Rec., 627; Bouknight v. Brown, 16 S.C. 155; Pearson v. Carlton, 18 S.C. 47; Leroy v. City Council, 20 S.C. 71; Mosely v. Hankinson, 22 S.C. 323; De Leon v. Barrett, 22 S.C. 412; Covar v. Cantelou, 25 S.C. 35; Powers v. Bullwinkle, 33 S.C. 293, 11 S.E., 971; Smith v. Winn, 38 S.C. 188, 17 S.E., 717, 751; Hunt v. Gower, 80 S.C. 80, 61 S.E., 218, 128 Am. St. Rep., 862; Mauldin v. Mauldin, 101 S.C. 1, 85 S.E., 60; Cagle v. Schaefer, 115 S.C. 35, 104 S.E., 321; Patton v. Church, 129 S.C. 15, 123 S.E., 493; Mitchell v. Mitchell, 129 S.C. 321, 123 S.E., 854; Cannon v. Cannon, 135 S.C. 183, 133 S.E., 556; Des Champs v. Mims, 148 S.C. 52, 145 S.E., 623; Kirkham v. Bank, 149 S.C. 545, 147 S.E., 648.

W.C. Branyon was not compelled to accept the construction which I think should have been put upon the will. He had the right to insist that he had the fee-simple absolute title to the property, and it appears that, as he was able to impress that view upon a very learned Circuit Judge, he was justified at least in making the contention. He had the right, too, to insist that, if that contention should not be sustained, to rely upon the alternative indicated. The Circuit Judge having sustained his contention of title, it became unnecessary to consider the equitable right set up in the alternative, which did not at all rob the Court out of its properly assumed jurisdiction.

I do not think that the jurisdiction of the Court may be sustained upon the ground that the action was for the purpose of removing a cloud from the title of the plaintiff. Jurisdiction to remove a cloud from title does not extend to a case of mere construction of a will or other instrument, or, in other words, to a case where plaintiff looks alone to the written instrument to raise the doubt and looks alone to the written instrument to solve it; in such case the invalidity, if any, appears "on its face," and "equity will not interfere to remove a cloud from title where the invalidity of the instrument of claim complained of appears on its face." 32 Cyc., 1315, and many cases cited. In 32 Cyc., 1314, note 58, it is said: "Where both parties are claiming under the same instrument and the question is purely one of construction, no case is presented for the removal of a cloud on the title. Ecton v. Smith, 6 Ky. Law Rep., 224; Brown v. Austen, 35 Barb. (N.Y.), 341, 22 How. Prac., 394."

"A doubt as to the legal construction of a deed is not a cloud on title that a Court of Equity can be called on to clear away;" Brown v. Austen, 35 Barb. (N.Y.), 341, 22 How. Prac., 394; 41 Cent. Dig. Quieting Title, § 18, Col., 1257.

"A doubtful construction of a clause in a will or deed does not constitute a cloud giving a Court of Equity jurisdiction to remove cloud from title;" Button v. Mitchell, 1 Mich. N.P., 295 (1870); 16 First Decennial Digest, p. 1807, "Quieting Title," 7 (2).

Another reason why there is no action to remove cloud from title is that equity has no jurisdiction to consider and determine mere contingent and speculative claims, claims that may never arise. Branyon might have living children and not a single one of the parties in existence in 1904 might outlive him. If so, there would be no member of the class of executory devisees whatever before the Court. Anway v. R. Co., 211 Mich., 592, 179 N.W., 350, 12 A.L.R., 52, and special note at page 73; also 5 R.C.L., 662.

Still another reason against this claim of jurisdiction is that there must be a necessity to resort to extrinsic evidence in order to defeat the claim that plaintiffs would say was apparently valid, but actually invalid. In Pom. Eq. Juris. (3d Ed.), 399, it is said: "If the defect appears upon the face and a resort to extrinsic evidence is unnecessary, the reason for equitable interference does not exist if it cannot be said that no cloud whatever is cast upon the title."

To the same effect, see Judge Freeman's note to Scott v. Onderdonk, 67 Am. Dec., 111.

Cloud on title is thus defined in 11 C.J., p. 920: "An outstanding claim or encumbrance which if valid would affect or impair the title of the owner of a particular estate, and which apparently and on its face has that effect but which can be shown by extrinsic proof to be invalid or inapplicable to the estate in question."

See, also, Trustees v. Trustees, 85 S.C. 546, 67 S.E., 951; Kittles v. Williams, 64 S.C. 229, 41 S.E., 975.

The other objection of the petitioner to the proceedings resulting in the decree of Judge Featherstone, dated February 3, 1905, upon the ground that the Court did not acquire personal jurisdiction of the petitioner, will next be considered.

It must be kept in mind that the respondents upon this appeal were not parties to the original action of W.C. Branyon against Lucinda Smith et al., in which by decree of Judge Featherstone the title of W.C. Branyon to the land was confirmed. They purchased from W.C. Branyon after the decree of February 3, 1905, was passed and in reliance upon it. All of the land which was decreed by the Court to be owned in fee-simple by W.C. Branyon has been conveyed severally to these respondents.

The petitioner would have the Court to decide that personal jurisdiction of her was not obtained and these purchasers who relied upon a solemn adjudication of the Court should lose their property upon testimony given more than 20 years after the decree was entered. The petitioner and her husband and daughter testified that she was not served with process; she has also offered other testimony in support of that contention. The recitals in the order of reference, report of Referee, and the decree of Judge Featherstone are to the effect that all of the parties were before the Court. The judgment roll contains proof of service on all of the defendants except Mrs. Darby; there is no affidavit of service as to her therein. She was living in Newberry when the action was commenced, a fact that was known to the plaintiff and his attorneys. The judgment roll is complete as to all papers, except that there is no affidavit or certificate as to service upon the petitioner. At the time of the commencement of the action, W.C. Branyon had a living son about 5 years old which apparently satisfied the condition which made his fee defeasible. This fact naturally accounts for the failure of any of the adult parties to file answers in the case, and, after the lapse of 20 years, I do not think that great reliance should be placed upon the recollection of the petitioner and her husband that she had not been served with process. She lived at Newberry, a fact, as stated, which was known to the plaintiff and his attorneys, and it is singular that attorneys of the high repute of those bringing the action should have omitted the precaution of having her served. In addition to this, the title was frequently examined by able and careful attorneys, none of whom discovered the absence of proof of service upon her. It is known that such proof is usually supplied by a separate paper thrown into the judgment roll, and, in the great number of examinations made, it is more than probable that it escaped from the judgment roll in some unaccountable way. I do not think that the title of these respondents should be destroyed by evidence as weak as appears in this case. The ruling of his Honor, Judge Townsend, as to the presumption which exists in favor of the jurisdiction of the person of the petitioner, is entirely satisfactory, supported as it is by the very pertinent and conclusive authorities cited by him.

I think, therefore, that the decree of Judge Townsend should be affirmed for the reasons which I have stated.