Some time after the death of the testator, I.T. and W. Stackhouse, as executors, recovered judgment against Jeremiah Rowell, as administrator cum testamento annexo of William Rowell. The judgment roll, after search, could not be found among the records, and there was no testimony showing when itwas recorded. On the 2d of March, 1857, the sheriff executed a deed purporting to convey to Jeremiah Rowell the lands of William Rowel, including the tract in dispute, which contains the following recital:
"Whereas, by a writ of fieri facias, issued out of the Court of Common Pleas for the district of Marion; tested the 28th day of March, 1856, and returnable according to law, to me directed, and lodged in my office on the 10th day of April, 1856, commanding me of the goods, chattels, houses, lands, and other hereditaments, and real estate of Jeremiah Rowell, administrator with the will annexed of William Rowell, to levy the sum of sixty dollars and sixty-one cents, debt and costs, which I.T. and W. Stackhouse, executors, the plaintiff, by the judgment of the said Court at Marion, lately recovered against the said Jeremiah Rowell, administrator, I have levied upon a certain tract, piece or parcel of land, or the interest of the said Jeremiah Rowell, administrator, in a certain tract in the district of Marion aforesaid, hereinafter more particularly described."
After the lapse of 20 years it will be presumed that there was a valid judgment. Corbett v. Fogle, 72 S.C. 312,51 S.E. 884.
Through successive conveyances from Jeremiah Rowell to his grantees, the land came into the possession of the *Page 310 defendant, D.H. Hyatt, who claims to be the owner thereof. None of the remaindermen, nor those claiming under or through them, have ever been in possession of the land. Conceding that the remaindermen were not made parties to the proceedings, under which the land was sold, it by no means follows that they were not concluded by said judgment. The rule is thus stated in Huggins v. Oliver,21 S.C. 159, by Associate Justice McIver (afterwards Chief Justice):
"It seems to us that the rule to be deduced from the foregoing cases is this: That while, as a general proposition, it is true that lands of an intestate may be sold under a judgment recovered against the administrator, upon a debt of the intestate, yet if the lands have passed into the actual and exclusive possession of the heirs before the judgment has been recovered, and before any lien has thus been fixed upon them, they can no longer be sold under such judgment, and can only be reached by the usual proceedings to subject real estate, in the hands of the heir, to the payment of the debts of the ancestor, * * * to which proceedings the heir would, of course, be a necessary party."
This language was quoted with approval in Brock v.Kirkpatrick, 60 S.C. 322, 38 S.E. 779, 85 Am. St. Rep. 847. In the last mentioned case, the Court, in discussing the proposition that the exclusive possession of the heirs, and acts of ownership exercised by them, protected their inheritance from levy and sale, under a judgment and execution against the personal representative, said:
"This does not mean that the mere fact of actual and exclusive possession in the heir will prevent the application of the rule in D'Urphy's case, 3 S.C.L. (1 Brev. 289). Such a construction would amount to a practical abrogation of the rule; for, as was pointed out by Mr. Chief Justice Moses in Rogers v. Huggins (6 S.C. 377): `In the very large proportion of the instances in this State (and the case before us presents one) they, upon whom the inheritance is *Page 311 cast, are in possession at the very moment of the death of the ancestor, for in nine cases out of ten, they are members of his own household.'"
It cannot be successfully contended that the said proceedings were not binding upon the remaindermen, by reason of the fact that there was a division of the property among the devisees before the sale. In the first place, the testimony does not show when the judgment was recovered; and, in the second place, the testimony does not show when the division was made, or whether the possession was such as to protect the land from levy and sale, without making the heirs parties to an action for that purpose. The inferencesfrom the facts were to be drawn by the jury, and not by thepresiding Judge.
Nor can it be urged that the judgment was not in proper form, in that it was against Jeremiah Rowell, as an individual, and not in his representative capacity. This would constitute a mere irregularity, and could be cured at any time by amendment, even after a sale under the judgment, as shown by the case of Carroll v. Tompkins, 14 S.C. 223, in which the Court says:
"Even before the adoption of the Code, it was within the jurisdiction and the constant practice of the Court to amend its own proceedings and orders, especially in cases of mere clerical mistake as to form. As was said by the Court, in the case of Hubbell v. Forgartie et ux., 8 S.C.L. (1 Mill) 169 (26 Am. Dec. 163): `It is every day's practice to permit judgments and executions to be amended, according to the right of the case, even after a sale under execution. If authority be necessary to sustain this practice, it will be found in the case of Hancock v. Proud, 1 Sand. 336, note 10, in which it is said: "But if the judgment be entered debonis propriis, instead of de bonis testatoris vel si non, etc., it is considered as a mere clerical mistake, which the Court below will amend on motion, even after the record has been removed by error and argument in the Court of Errors"'" *Page 312
Even if the judgment was voidable, it could not be attacked collaterally. Sanders v. Price, 56 S.C. 1,33 S.E. 731.
For these reasons I dissent.