Opinion
13780
February 15, 1934.
Before WHALEY, J., County Court, Richland, July, 1933. Appeal dismissed and order affirmed.
Action by L.C. Truesdale against G. Duncan Bellinger, Judge of Probate, and another. From an order sustaining defendant's demurrer to the amended complaint, plaintiff appeals.
Following is the order of County Judge Whaley sustaining demurrer to the amended complaint:
This matter comes on to be heard before me upon demurrer to the amended complaint in the above-stated matter.
The action is brought against G. Duncan Bellinger, in his official capacity as Probate Judge for Richland County, and the United States Fidelity Guaranty Company, who is surety on the bond of the said Probate Judge.
The amended complaint alleges in substance that in a proceeding had before the Probate Court for Richland County for the sale of lands in aid of assets in the estate of G.E. Murtiashaw, deceased, that the said G. Duncan Bellinger, as Probate Judge for Richland County, failed to pay certain taxes out of the proceeds from the sale due and owing to the State of South Carolina and County of Richland, and that therein he violated the duties placed upon him by law, and the order of the Probate Court ordering the sale and directing the application of the proceeds therefrom.
The defendants, G. Duncan Bellinger and United States Fidelity Guaranty Company, have demurred to the amended complaint served upon him and it upon the following grounds:
1. It is not alleged in the complaint that in the action brought by Leon E. Murtiashaw, as administrator of the estate of G.E. Murtiashaw, deceased, in the Probate Court for Richland County, for the sale of land in aid of assets for the payment of the debts of said estate, that the taxes upon said property which the plaintiff in this action now seeks to recover from the defendants herein, was proven as a debt due by the estate of the said G.E. Murtiashaw, deceased.
2. That it is not alleged in the complaint that any application or motion was made in the cause instituted by Leon E. Murtiashaw, as administrator of the estate of G.E. Murtiashaw, deceased, brought in the Probate Court for Richland County, for the purpose of selling land in aid of assets, by the purchaser, or any other party interested in said cause, before the funds were distributed to have any specific portion of the proceeds of sale applied to the payment of taxes.
3. That the complaint fails to state sufficient facts going to show a violation of any duties resting upon the defendant G. Duncan Bellinger, as Probate Judge, to pay the taxes which the plaintiff seeks to recover in this action.
4. That if the Probate Court erred in the proceedings brought by Leon E. Murtiashaw, as administrator of the estate of G.E. Murtiashaw, deceased, for the sale of real estate in aid of assets, in failing to adjudge any amount due by the estate for taxes on the property so sold, this was a judicial error on the part of the defendant G. Duncan Bellinger, in this action, as Judge of said Court, for which there is no liability at law.
In the complaint the plaintiff does not set forth that any motion was made in the cause in the Probate Court for Richland County ordering the sale of lands in aid of assets for an application of any part of the proceeds from the same to the payment of the taxes alleged to be due, but the plaintiff relies on Section 2569, Code of Laws, 1932, to show that it becomes the duty of the Probate Judge selling land in aid of assets to pay the taxes due and owing upon the property sold. Section 2569, Code of Laws, 1932, is as follows:
"§ 2569. Taxes a Debt Due State and a First Lien upon Property — Enforcement. — All taxes, assessments and penalties legally assessed shall be considered and held as a debt payable to the State by a party against whom the same shall be charged; and such taxes, assessments and penalties shall be a first lien in all cases whatsoever upon the property taxed; the lien to attach at the beginning of the fiscal year during which the tax is levied; and such taxes shall be first paid out of the assets of any estate of deceased persons, or held in trust as assignee or trustee, as aforesaid, or proceeds of any property held on execution or attachment; and the county treasurer may enforce the said lien by execution against the said property; or, if it cannot be levied on, he may proceed by action at law against the person holding said property.
"When any real estate shall be sold under any writ, order or proceedings in any Court, the Court shall, on motion of any person interested in such real estate or in the purchase or proceeds of the sale thereof, order all taxes, assessments and penalties charged thereon to be paid out of the proceeds of such sale as a lien prior to all others."
It will be noted therein that when any real estate is sold under any writ, order, or proceedings in any Court, the Court shall, on motion of any person interested in such real estate or the proceeds of the sale thereof, order the taxes, etc., to be paid out of the proceeds of such sale.
Under the section pertaining to the sale of land in aid of assets by the Probate Court, it is therein set forth that upon the Probate Court selling the lands the proceeds shall be turned over to the administrator and he, the administrator, to pay the debts of the estate. This is found in Section 9000, Code of Laws 1932.
Under the order of the Probate Court selling the lands in question, there is nothing therein directing the Probate Court to pay the taxes, but simply provides that any taxes due and payable should be paid; hence the construction of the order would be that the taxes in question were to be paid by the one who by law is charged with the duty of paying the debts of the estate and disbursing the funds, to wit, the administrator. In the absence of a duty placed upon the Probate Court by statute to pay the taxes out of funds derived from the sale, the Probate Judge is not required to pay taxes out of the funds derived from the proceeds of the sale of land in aid of assets, and his failure to pay the taxes would not be a breach of his duty. There is no such statute requiring the payment by the Probate Judge of the taxes, and there is no allegation that a motion was made in the original cause in the Probate Court for Richland County as required by law for the proceeds of the sale in question to be applied to the payment of taxes on the property purchased by the plaintiff in the sale had.
I thereby find and hold that the complaint does not state facts sufficient to constitute a cause of action, and the demurrer is therefore sustained and the complaint dismissed.
Mr. Buford Jackson, for appellant, cites: As to complaint: 70 S.C. 572; 154 S.C. 138; 148 S.C. 133; 153 S.C. 305; 68 S.C. 410. As to amendments: 80 S.C. 215; 70 S.C. 94; 12 S.C. 1; 70 S.C. 31; 63 S.C. 525; 21 S.C. 434; 64 S.C. 389; 22 S.C. 375.
Messrs. Heyward Brockinton and Roger M. Heyward, for respondents, cite: Duty of Probate Court: Sec. 2569, Code 1932; 141 S.C. 290; 65 S.C. 308; 162 S.C. 133.
February 15, 1934. The opinion of the Court was delivered by
Leon E. Murtiashaw, as administrator of the estate of G.E. Murtiashaw, deceased, brought action in the Court of Probate for Richland County for leave to sell the real estate of his intestate in aid of personal assets to pay the debts of the estate. By order of the Court the leave was granted and the lands were sold by Hon. G. Duncan Bellinger, Probate Judge, at public outcry, and were bought by L.C. Truesdale, the appellant herein. This action was brought by appellant to recover of the Judge of Probate and his surety, United States Fidelity Guaranty Company, the sum of $69.16, the amount of State and county taxes alleged to be due on the real estate sold by the Probate Judge in the said proceeding.
The allegations of the complaint, upon which appellant relied as stating a cause of action against the respondents, are:
That at the sale appellant asked if the property was being sold free of all claims and was told by the Probate Judge that "the sale was being made for the purpose of raising money to pay up all indebtedness of the estate."
That appellant's attorney, after the sale, had several conferences with the Judge of Probate when, among other things, the State and county taxes were discussed; that when the purchase money was paid in, appellant's attorney asked the Probate Judge to deduct therefrom the pro rata of the taxes for 1931, and was told that only past-due taxes could be so deducted; that the attorney asked if the purchaser should deduct these taxes and was told not to do so, but to make the check to the Probate Judge for the full amount; that he was to pay all claims. That due to the negligence of the Probate Judge in not paying the taxes a lien was left on the property of appellant. That such negligence was a breach of the bond of the Probate Judge which renders him and his surety liable to the appellant in the amount of the taxes, to wit, $69.16. That it was the duty of the Probate Judge to pay the taxes assessed against the estate of the decedent.
The defendants demurred to the complaint for that it did not state a cause of action for the reasons that:
It is not alleged in the complaint that in the action in the Probate Court for leave to sell the lands of the decedent the taxes upon the property now sought to be recovered of the defendants was proved as a debt against the estate.
That it is not alleged in the complaint that any motion was made by the administrator, or the purchaser, or any other person interested in the estate, before the funds were distributed, to have any specific proceeds of sale applied to the payment of taxes.
That the complaint fails to show a violation of any of the duties resting upon the Probate Judge to pay the taxes which plaintiff seeks to recover.
That if the Probate Judge erred in failing to adjudge any amount due by the estate for taxes on the property sold, this was a judicial error on the part of G. Duncan Bellinger, as Judge of the Probate Court, for which there is no liability at law.
The demurrer was heard by Judge Whaley in the County Court for Richland County who, in an order of date August 31, 1933, sustained the demurrer.
He held that the complaint does not show that any motion was made in the proceeding brought in the Probate Court to sell land in aid of assets; that any part of the proceeds of such sale should be applied to the payment of taxes alleged to be due; that Section 2569, Code of Laws 1932, upon which plaintiff relied, did not impose any duty upon the Judge of Probate to pay the taxes unless a motion for that purpose be made by "any person interested in such real estate or in the purchase or proceeds of the sale thereof."
He further held that under the section (Section 9000, Code of Laws 1932), pertaining to the sale of lands by the Probate Court in aid of assets to pay debts, the Probate Judge, upon selling the land, shall turn over the proceeds to the administrator and he shall pay the debts of the estate. He held further that there is nothing in the order of the Probate Court which directed the Judge of Probate to pay the debts, but that it simply directed that any taxes due and payable should be paid; that the proper construction of that order was that the taxes were to be paid by the person charged by law with the duty of paying the debts of the estate, viz., the administrator. That no duty is placed by statute upon the Probate Judge requiring him to pay the taxes out of the proceeds of land sold by him in aid of assets to pay the debts of the estate, and his failure to do so would not be a breach of duty.
From this order the appeal is made to this Court, upon seven exceptions, which practically repeat the allegations of the complaint. We think the order of Judge Whaley correctly disposes of the issues made. Let it be reported. We may say, in addition thereto, that when an action is brought in the Probate Court for leave to sell lands in aid of assets to pay debts, the proper practice is for the administrator in his complaint, or petition, to set forth the debts of the estate, properly proved, and the assets available to pay them. When the proceeds of sale are paid to the Court, the Judge may, if he so elect, pay the claims so proved before him, but he may turn over the proceeds of sale to the administrator, who is required to give bond for their proper disbursement. If any one in interest desires that a particular claim be paid, not included in the schedule proved before the Court, he must give notice of it by motion before the funds are disbursed. One of the exceptions alleges as error that the trial Judge held that such notice must be in writing. We do not find from the record that he so held. If he had done so, we do not think it would have constituted error. The Court of Probate is a Court of record and its proceedings must be kept in the record of each case.
It is true that Section 2569, Code 1932, provides that taxes shall be considered and held as a debt payable to the State, and that they shall be a first lien upon the property taxed; the lien to attach at the beginning of the fiscal year in which the tax is levied, etc. But there is in this nothing which makes it the duty of the Judge of Probate to pay the taxes. If, however, he should assume the obligation of paying the debts of the estate and should negligently fail to pay a debt duly approved that would be an act of negligence which might subject him and his bondsman to liability — that would be a ministerial act. But in the present instance he declined to pay the taxes for that current year because, as he held, they were not then due. He overlooked the fact, as above stated, that the State's lien for taxes attaches from the beginning of the year for which the taxes were levied. If that was error, it was an error made in his judicial capacity for which no liability at law attaches.
It appears from appellant's exceptions that after paying the claims proved before him, the Judge of Probate turned over to the administrator $778.00 of the proceeds of sale. The record is silent as to whether appellant ever demanded of the administrator that he pay these taxes. This matter is of interest in connection with the issue that no motion was made that these taxes be paid before the funds arising from the sale of the lands be distributed.
The appeal is dismissed. The order appealed from is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE W. C. COTHRAN concur.