[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 302 November 9, 1917. The opinion of the Court was delivered by The devise to John was a life estate, with remainder to his children. Testator defined the word "heirs," as he used it, to mean "children." That obviates the necessity for construction, which would only confuse what he made plain, to wit, his intention that John should have only a life estate, with remainder to his children.
Appellant contends, however, that the record of the will in the "will book" was different from the original, in that testator's definition of the word "heirs" was omitted, and that, as purchasers for value without notice, he and those under whom he claims had the right to rely upon the record copy of the will. It is sufficient answer to that contention to say that appellant neither alleged nor proved the facts necessary to establish that defense. Lupo v. True, 16 S.C. 579; Merck v. Merck,95 S.C. 328, 78 S.E. 1027; Carr v. Mouzon, 93 S.C. 161,76 S.E. 201, Ann. Cas. 1914c, 731.
As Jeremiah was administrator with the will annexed, acceptance by him of the deed from John was inconsistent *Page 305 with the idea that he still had possession of the land for purposes of administration. Therefore it estopped him, and, as it was matter of record affecting his title of which purchasers under him were bound to take notice, it estopped them, to deny that he assented to the devise to John. A devisee's possession of the devise, withbona fide assent of the executor, ousts the right of creditors to sell the devise under a judgment obtained against the executor alone, after such assent and possession. Harleyv. Bates, 4 S.C.L. (2 Brev.) 419; Thompson v. Schmidt, 21 S.C.L. (3 Hill) 156, 165; Alexander v. Williams, 20 S.C.L. (2 Hill) 522; Green v. Iredell, 31 S.C. 588,10 S.E. 545, 18 Cyc. 599. And these authorities show that assent to the devisee of a life estate inures to the benefit of the remaindermen.
Nevertheless, as we shall see later, as Jeremiah took nothing by the deed from John, except John's life estate, which he and his grantees enjoyed, it is of little or no consequence whether he assented to the devise or not. But defendant had the right to rely upon the sheriff's deed as a distinct and independent source of title. It becomes necessary, therefore, to determine what interest that deed conveyed.
One who claims title to land under an execution sale must prove a judgment and execution which authorize the sale of the interest which he claims. Sheriff v. Welborn,14 S.C. 480; Bonham v. Bishop, 23 S.C. 96;Parr v. Lindler, 40 S.C. 193, 18 S.E. 636.
The form of judgment and execution against an administrator or executor which is necessary to authorize sale of the property of decedent's estate, when the heirs or devisees have not been made parties, has been determined and pointed out in many cases. Hubbell v. Fogartie, 19 S.C.L. (1 Hill) 167, 26 Am. Dec. 163; Trimmier v.Thomson, 19 S.C. 247; Huggins v. Oliver, 21 S.C. 147;Gowan v. Gentry, 32 S.C. 369, 11 S.E. 82, 18 Cyc. 1075, 1077. The judgment must be recovered upon a debt or liability *Page 306 of decedent, and it must be against his personal representativede bonis testatoris, etc. And the execution must conform to the judgment. A substantial variance from the correct form in such cases is not treated as a mere irregularity, but as matter of substance, which vitiates the sale; for as said in Small v. Small, 16 S.C. 64: "Forms must be exact when the right is claimed to sell land without making the owner a party."
There is no evidence that the judgment under which the sale was made was recovered upon a debt of William Rowell, the testator. There is no evidence that there was any judgment or execution, except the recitals in the sheriff's deed. But, assuming, without deciding, that, when the judgment and execution have been lost, the recitals of the sheriff's deed may be relied upon to prove them (but Sheriff v. Welborn, supra, seems to hold otherwise), and giving these recitals the utmost effect, they utterly fail to prove a judgment and execution which authorized the sale of the property of Wiliam Rowell's estate. They are sufficient to prove only a judgment and execution against "Jeremiah Rowell, administrator," etc., of that estate. It is needless to cite authority that an administrator or executor has no power to contract debts which will bind the estate, except by special authority, which will not be presumed.
In his deed, the sheriff recites an execution "commanding me of the goods, chattels, houses, lands, and other hereditaments, and real estate of Jeremiah Rowell, administrator,with will annexed of William Rowell to levy," etc., the sum recovered "against the said Jeremiah Rowell,administrator," and that he levied upon a certain tract of land, or the interest of the said Jeremiah Rowell, administrator,in a certain tract" described. He then recites the sale to E.T. Stackhouse, the transfer of his bid to Jeremiah Rowell, and the conveyance to the latter of "all that certain tract or parcel of land on which the said Lucy Rowell lives *Page 307 with interest of Jeremiah Rowell therein," situate, etc., "together with all and singular the members and appurtenances thereunto belonging, and all the estate, title, andinterest which the said Jeremiah Rowell, administrator ofthe estate of William Rowell, deceased, of right had in andto the same." The italicized parts of the deed fail to show that the judgment was recovered upon a debt of William Rowell, or that it was adjudged that the recovery should be out of his estate. The judgment and execution recited were against Jeremiah Rowell, individually, the words "administrator," etc., added to his name, being merelydescriptio persona. Tobin v. Addison, 33 S.C.L. (2 Strob.) 3; Beazley v. Dunn, 42 S.C.L. (8 Rich.) 345;Small v. Small, 16 S.C. 64; Huggins v. Oliver, 21 S.C. 147;Gowan v. Gentry, 32 S.C. 369, 11 S.E. 82, 18 Cyc. 880, 881, 1075-1077. It follows that the purchaser at the sheriff's sale acquired only the individual interest of Jeremiah Rowell in the land described, which, so far as the tract devised to John was concerned, was only the life estate that John had conveyed to him.
This conclusion makes it unnecessary to decide whether the evidence showed so conclusively that John had such actual and exclusive possession of the tract devised to him before the judgment was obtained as would oust the right of the judgment creditor to sell the land under that judgment that the Court might direct the verdict on that issue. Nevertheless, it may be said David Rowell testified that, after testator's death, a survey was made and the lines of the several devisees were located, and John took possession of the tract devised to him, and lived on it two or three years. That testimony is not only uncontradicted, but it is strongly corroborated, by the undisputed facts and circumstances and the inferences to be drawn from the indisputable records, so that a finding to the contrary would have been without any evidence to support it. *Page 308 Therefore, even if that were an issue in the case, the verdict was properly directed.
The appellant contends that even if John was in such actual and exclusive possession before the judgment was obtained as would have prevented a sale of the land under it, nevertheless, when he conveyed his interest to Jeremiah, the latter was then in possession both as administrator and as devisee, and, under the ruling inSmith v. Byers, 102 S.C. 215, 86 S.E. 481, the fee might have been sold under the judgment against him. But, inSmith v. Byers, the possession of the executor had never been changed. He took possession originally both as executor and as life tenant under the will; and it was held, nothing appearing to the contrary, that it would be presumed — not necessarily, and as a matter of law, but as a matter of fact — that he was still holding the possession for the purposes of administration, when the judgment was obtained against him, especially as the judgment was against him both individually and as executor upon an obligation of his testator. This case is differentiated by the facts. Appellant's contention overlooks the legal effect of an assent by the executor to a legacy or devise and possession taken under it. The authorities cited above show that, once it is given bona fide, it cannot be recalled. It would be more consonant with justice and equity and authority to hold in this case that, when the executor bought the land of his testator at sale under execution against himself upon a debt which it was his duty to pay, he became a constructive trustee of the legal title, if that had been conveyed, for the benefit of the remaindermen. 18 Cyc. 287, 349, 769.
The remaindermen are not barred by the statute of limitations. They had no cause of action, until the death of the life tenant. Rice v. Bamberg, 59 S.C. 507,38 S.E. 209, and cases cited. The provisions of section 134 of the Code of Civil Procedure are not applicable, *Page 309 unless a defendant has been in possession 40 years after the accrual of a cause of action.
Judgment affirmed.
MESSRS. JUSTICES WATTS, FRASER and GAGE concur in the opinion of the Court.