Blackwell v. Tucker
| Decision Date | 30 June 1876 |
| Citation | 7 S.C. 387 |
| Court | South Carolina Supreme Court |
| Parties | BLACKWELL v. TUCKER. |
A and B were seized as tenants in common of equal undivided moieties in three tracts of land. B died intestate and A became his administrator, and afterwards, under a bill in equity filed by the heirs of B against A, A became the purchaser of the lands at a sale by the Commissioner. The heirs of B were his widow and children-the latter infants. The Bond of A to the Commissioner was given in 1860, and early in 1863 A applied to the widow to receive Confederate money in payment of a moiety of the purchase money, which she declined to do. In July, 1863, A paid to the Commissioner, in Confederate Treasury bonds, one-half the amount of his bond for the purchase money, but did not inform the Commissioner of the widow's refusal to receive Confederate money: Held, That the payment was fraudulent and void, and that A was liable to the widow and children for their moiety of the purchase money.
BBFORE CARPENTER, J., AT EDGEFIELD, JUNE, 1875.
This was an action by Susan Blackwell and her four children, who were infants, and sued by their guardian ad litem against Landon Tucker, to set aside and vacate, on the ground of fraud, a payment made in July, 1863, on a bond held by the Commissioner for the benefit of the plaintiff.
The case was as follows:
James Blackwell, husband of the plaintiff, Susan Blackwell, and father of the infant plaintiffs, and the defendant, Landon Tucker, were seized in fee as tenants in common of three tracts of land, each being entitled to one moiety thereof. Blackwell died intestate and the defendant became the administrator of his estate. The widow and children of Blackwell then filed a bill against the defendant for partition of the real estate and a decree was made for the sale thereof. In December, 1860, the sale was made by the Commissioner of the Court and the defendant became the purchaser, and on 3d of December, 1860, gave his bond to the Commissioner for $7,525, the amount of the purchase money, one-half payable one year after date and the other half two years after date.
The following payments were endorsed on the bond:
+-----------------------------------+
¦Received December 3d, 1860¦$ 263 16¦
+--------------------------+--------¦
¦Received July 6th, 1863 ¦4,293 00¦
+--------------------------+--------¦
¦(One-half of the bond.) ¦ ¦
+-----------------------------------+
The endorsements were made by the Commissioner. The case was referred by the Circuit Court to a Referee to take and report the testimony. He reported the testimony of two witnesses, Susan Blackwell and John Blackwell, and they testified that in January or February, 1863, the defendant had a conversation with Mrs. Blackwell in the presence of the other witness, and the defendant said that he wished to pay up what he owed the plaintiff and settle the whole matter. Mrs. Blackwell declined to receive the money; said that it had so greatly depreciated that it was worthless; that he would not pay when money was good, and now that it had become worthless because of its great abundance he wished her to take it, but that she would not do.
Landon Tucker testified for the defense that in his conversation with Mrs. Blackwell, to which she and her son had testified, he (the witness) had reference to the personal estate; it was that he wished to settle up and pay for in Confederate money.
It further appeared that the payment in July, 1863, was made in Confederate Treasury bonds, and that Tucker said nothing to the Commissioner when he made the payment or at any time before about the conversation with Mrs. Blackwell, which she and her son had testified to or about her refusal to receive Confederate money in payment of the bond to the Commissioner.
His Honor Judge Carpenter decreed that the payment made on the 6th July, 1863, be disallowed and rejected, and that the defendantdo pay the full amount due the plaintiffs on the bond to the Commissioner on or before the 1st of October next. That the plaintiffs had a statutory lien on the lands to secure the payment of the purchase money, and that in default of such payment the lands be sold to satisfy the amount due the plaintiffs.
The defendant appealed on the following grounds:
1. Because plaintiffs, being neither obligees nor legal owners of the bond, cannot maintain this action.
2. Because the defendant, having an equal interest with the plaintiffs in the proceeds of said bond, and having paid half thereof to the obligee, the plaintiffs cannot maintain their action against him.
3. Because Z. W. Carwile, the then Commissioner in Equity for Edgefield, the obligee of the bond, having in his official capacity received and acknowledged the receipt of so many dollars from defendant in part payment thereof, the defendant is thereby discharged, if not entirely, at least pro tanto from payment thereof, and plaintiffs' redress, if any, for any loss or injury sustained thereby is against Carwile and his sureties on his bond as Commissioner.
4. Because, even admitting the liability of defendant, defendant's payment in Confederate currency having been made and received in good faith, any loss incurred thereby should be borne equally by plaintiffs and defendant, and the judgment of the Court is therefore for too large an amount of money.
Youmans, for appellant, with whom was Griffin:
On December 3, A. D. 1860, defendant gave bond to Commissioner in Equity for payment of $7,525, one-half in one year and one-half in two years after date, with interest, on which he paid at the date $263.16, and on 6th July, 1863, $4,293. Of the land sold to secure payment of the purchase money of which this bond was given, defendant was half owner and entitled to half the proceeds of sale.
Upon the pleadings set forth and the report of the Referee the Circuit Judge disallows the payment made by defendant and decrees against him for half of the said bond debt and interest, with order for sale and foreclosure. Defendant appeals.
1. The plaintiffs are neither payees or assignees of the bond, nor are they entitled to receive proceeds of the bonds when collected, the defendant being entitled to one-half.
2. The defendant not liable to account to plaintiffs for their moiety, having been discharged by his payments.- Meyer vs. Mordecai, 1 S. C., 383, and cases cited at 389.
3. The payment in Confederate money having been accepted by the obligee of the bond discharges the obligor.-Austin vs. Kinsman, 13 Rich. Eq., 266. Even though the obligee be liable.-McPherson vs. Lynah & Gray, 14 Rich. Eq., 121;Wiseman & Finley vs. Hunter et al., 14 Rich. Eq., 167.
4. Decretal order erroneous, not containing statement of facts found and conclusions of law as required.-Code, § 291.
Bacon, contra, filed the following points and authorities:
All of the decisions of this State, as well as those of the United States Courts, sustaining payments in Confederate money proceed upon the ground of necessity.
This is true, in especial, of payments made to the Commissioner in Equity (as in this case) by the obligor of bonds given for the purchase of real estate at sales by that officer.
The general opinion of the Court in such cases seems to be that it is hard that the beneficiaries (especially when women and children, as here,) should lose, as it were, the real estate of the testator or intestate because of the inflexible rule of law that payment in Confederate notes by the obligor to the obligee (the Commissioner) is a good and valid payment; and the entire current of the decisions-from Wiseman & Finley vs. Hunter et al., ( ,) to the late case of Pickens vs. Dwight, (in 4 S. C., 360,)-go to show that if there is the slightest fraud or circumvention or improper combination on the part of the obligor in making such payment the Court will gladly avail itself thereof in order to avoid the inflexible rule and to deal out even-handed justice.
Thus, in Wiseman & Finley vs. Hunter et al., it is said: “If any party in the cause was unwilling for Confederate currency or anything but coin to be received, that was the time to say so,” (meaning the time when the plaintiffs presented their claims under the order in the case calling in claimants).
If such an objection as that indicated in the above case would have been noticed and enforced by the Court, how much more so the objection set up and proved in the present case? For here we have the direct testimony that the widow, when approached by the defendant, Tucker, some months before he made payment to the Commissioner, actually refused to receive the Confederate notes in payment, and assigned a good reason therefor-that they were worthless; that when, on a former occasion, she could have gotten a guardian for her children, he (Tucker) would not pay, and now no one would take such money; and that, notwithstanding such refusal on her part and on the part of her oldest son, John, who was present, (he and the rest of the children being then infants,) the said Tucker sought the Commissioner and paid his bonds in the identical Confederate bonds at a later date, when they were still more worthless than when refused by the plaintiffs. Such a transaction indeed evinces intentional and premeditated fraud upon the beneficiaries and upon the Commissioner, and fraud vitiates every transaction. It was not only a fraud, but a base one, towards the plaintiff and her children, and certainly a suppressio veri as to the Commissioner.
And it is remarkable in this case...
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