Elrod v. Cochran

• Decision Date: 13 March 1901
• Citation: 38 S.E. 122,59 S.C. 467
• Parties: ELROD v. COCHRAN et al.
• Court: South Carolina Supreme Court

38 S.E. 122

59 S.C. 467

ELROD v. COCHRAN et al.

Supreme Court of South Carolina

March 13, 1901

Appeal from common pleas circuit court of Anderson county; O. W Buchanan, Judge.

Suit by Mattie Elrod against Sue Cochran and another. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Bonham & Watkins and Quattlebaum & Cochran, for appellant.

E. M Rucker, Jr., and Tribble & Prince, for respondents.

GARY A. J.

This action was brought to recover possession of a lot or parcel of land in the city of Anderson. Sue Cochran answered the complaint, alleging that plaintiff is seised of said property for the use and benefit of said defendant. She further claims that she purchased the lot from M. Kennedy, paid the purchase money thereof, and permitted the title to be executed to plaintiff, who is her daughter, with the understanding that the plaintiff was to hold the title for her benefit; that, although the deed was taken in the name of the plaintiff, a trust resulted in favor of the defendant Sue Cochran. Isham Cochran also answered, alleging substantially the same defense as was made by Sue Cochran. The issues of law and fact were referred to the probate judge as special referee, whose findings of fact were as follows: "First, I find as matters of fact that Sue Cochran, one of the defendants herein, on or about March 11, 1895, entered into a contract with M. Kennedy for the purchase of a house and lot in the city of Anderson, S. C., for the sum of five hundred dollars. Second. I find that the purchase price for said premises has been paid in full, and that said Sue Cochran made all the payments, with the exception of one or two, made by her daughter, Mattie Elrod, the plaintiff herein. Third. I find that all of the receipts for said payment made on said premises by Sue Cochran and her daughter, Mattie Elrod, were issued in the name of Sue Cochran. Fourth. I find that on or about December 11, 1897, M. Kennedy, under the directions of Sue Cochran, executed and delivered a deed to said premises to the plaintiff Mattie Cochran, now Mattie Elrod, and a daughter of the said Sue Cochran. Fifth. That on said same date Mrs. J. G. Kennedy, the wife of said M. Kennedy, was called on to renounce her dower in said premises, and Mrs. J. G. Kennedy, seeing the deed was drawn in the name of Mattie Cochran, refused to renounce her dower until she was informed why the deed was in Mattie's name; and that Mrs. Kennedy then and there asked Sue Cochran why the deed was drawn in Mattie's name. Sue then stated to Mrs. Kennedy, in the presence of Mattie, the plaintiff herein, that she said Sue Cochran wanted it in Mattie's name for prudential reasons, and stated that she thought it best to put it in Mattie's name, so that her husband, Isham Cochran, could not mortgage it, or that it would not be taken for Isham's debts; and under these statements, made to Mrs. Kennedy, the deed was drawn in the name of Mattie Cochran." His conclusions of law were in favor of the defendant Sue Cochran, and he recommended that the plaintiff be required to execute to said defendant a quitclaim deed to the premises, and that the complaint be dismissed, with costs. The decree of his honor, the circuit judge, concludes as follows: "Let Mattie Elrod execute and deliver to the defendant Sue Cochran a quitclaim deed to the premises herein, and a trust (resulting) is declared in said land."

There are quite a number of exceptions, but, as stated by the attorneys in the cause, it will not be necessary to consider them in detail. The first exception is as follows: "(1) Because his honor, the circuit judge, erred in sustaining the referee in permitting secondary evidence of the contents of the written contract between M. Kennedy and Sue Cochran, no notice having been given plaintiff to produce the instrument and there being no sufficient proof of its loss,...