Alexander v. Du Bose

• Citation: 52 S.E. 786,73 S.C. 21
• Parties: ALEXANDER v. DU BOSE.
• Decision Date: 16 November 1905
• Court: South Carolina Supreme Court

52 S.E. 786

73 S.C. 21

ALEXANDER v. DU BOSE.

Supreme Court of South Carolina

November 16, 1905

Appeal from Common Pleas Circuit Court of Florence County; Dantzler Judge.

Action by M. Eliza Alexander against Charles W. Du Bose. From an order striking out certain allegations of the complaint, and refusing to strike out others, both parties appeal . Affirmed.

A. B Stuckey and Galletly & Ragsdale, for plaintiff. J. P. McNeill and Willcox & Willcox, for defendant.

JONES J.

Both sides appeal in this case from an order of Judge Dantzler made on the hearing of defendant's motion to strike out certain portions of the complaint as irrelevant or redundant. The defendant moved to strike out those portions of the complaint, herein set out in full, which are italicized, and of those italicized portions, the judge struck out those enclosed within brackets and refused to strike out those not so enclosed. The defendant appeals from so much of the order as refuses to strike out, and the plaintiff appeals from so much of the order as strikes out. The complaint is as follows:

"(1) That the plaintiff is the owner in fee, and in the possession of a part, and entitled to the immediate possession of the whole, of all that tract situate in the county of Florence, state aforesaid, containing, by a recent survey, 826 acres, more or less, in the deeds of conveyance thereof, and is bounded by lands owned by persons now or formerly as follows: North by lands of W. M. Timmons, S.E. B Hickson, and Adeline Sims; east by lands of S.E. Carter and Margaret Conyers; south by Lynches river; and west by lands of J. J. Ward.

(2) That there is a cloud upon the title of the plaintiff to the said premises, by reason of the fact that there appears of record in the clerk's office of said county, in Book 1, on page 728, an instrument of writing, purporting to be a deed of conveyance by the plaintiff to the defendant, for the consideration, therein expressed, of $3,347.49, and which purports to have been signed by the plaintiff, as the grantor, and two subscribing witnesses, namely J. E. Du Bose and May Du Bose. That, while the plaintiff admits that she placed her signature to the original of said instrument of writing, her signature thereto was obtained by the defendant by fraud and deception practiced upon her by him as hereinafter more fully stated. Yet at the time she signed the same there was no consideration whatever, expressed or stated in the instrument, nor was it witnessed by the subscribing witness May Du Bose, whose name appears as a witness thereto [ who was then, at the time of the signing of said original instrument, not at the plaintiff's home, where she signed the same, but was many miles away, as the plaintiff is informed and believes] and that the plaintiff has never acknowledged to her that she signed or executed said instrument of writing. [ That the other subscribing witness, J. E. Du Bose, was present at the plaintiff's home on or about the date of said instrument, to wit, the 16th day of September, 1897 and did witness the plaintiff's signature thereon. That if the signature of the said May Du Bose was placed upon the original instrument, of which the said record purports to show a copy, it was put there without the authority or consent of the plaintiff] and that the deed is, therefore, null and void in law, and should be canceled of record by the proper order of this court.

(3) That the defendant is now [ endeavoring to defraud the plaintiff of her right and title to said property] by claiming that he holds the absolute title thereto, and denying that the plaintiff has any title or interest in law or equity to the same; whereas, not only is the said instrument purporting to be a deed illegal, by reason of the defects and deficiencies above stated, but that the signautre of the plaintiff was wrongfully and fraudulently obtained thereon by the defendant by reason of the following facts and circumstances, to wit: That the plaintiff's former husband, Dorsey G. Du Bose, departed this life on or about the 10th day of June, 1891, leaving the plaintiff, his widow and the mother of their children, eight in number, most of whom were small and of tender years. That a few years before his death, acting under the counsel and advice of her husband, who was the manager of all her affairs, she sold a tract of land in Darlington county, and after paying the mortgage debt thereon reinvested the net proceeds in the purchase of the tract of land above described; the title deed being taken to and in the name of the plaintiff, who executed a mortgage thereon to secure the balance of the purchase money thereof, to one Mrs. Mary Byrd, about the year 1889. That the defendant is the plaintiff's next oldest son, and his father, shortly before his death, and being conscious that his death was near hand, told, the defendant, who. by experience and superior advantages of education, was, as he thought, the best qualified to take his place in the management of the business affairs of the plaintiff after his death, and that he wanted him to take care of his mother, the plaintiff, and take charge of the affairs at home, and the defendant promised to do so. That immediately upon the death of the plaintiff's said husband the defendant took exclusive control of the said plantation, and of all the affairs of the plaintiff, employed his younger brothers, the plaintiff's other children, to work share crops upon said land year after year, hiring some for wages, and agreeing out of their shares of the proceeds of the crops to pay their board to the plaintiff, who kept them, boarded them, and cared for them at her home on said farm, with the understanding that the net proceeds of the crops were to be paid by the defendant upon the said purchase money mortgage debt. He received all of the same and has never accounted therefor to the plaintiff. Some time during the year 1897 Reddin Byrd, the son of the said Mrs. Mary Byrd, and her heir at law, as she had died, came to the plaintiff and asked for the payment of the said mortgage debt; that she referred him to her son, the defendant, and had no further business transaction with the said Reddin Byrd. The defendant then undertook to borrow the money for the plaintiff elsewhere by a mortgage of the premises, and shortly thereafter sent out to the plaintiff's home-- the defendant was not, and had not been, living at home with the plaintiff for several years--the agent of the Scottish Loan Company, to inspect the land and ascertain its value, with the view of lending the money upon a mortgage therefor. The said agent stated to the plaintiff and the family that the land was valuable, and that the said company would lend the money thereon. The plaintiff and her entire family were pleased at this statement, and became satisfied that the home would be saved from foreclosure of the first-named mortgage, for the plaintiff had been informed by the defendant that the said premises were then being advertised for sale under the power of sale in the first-named mortgage, which could only be prevented by obtaining the money elsewhere to pay off the same. A few days after the agent went away, the defendant came again to the home of the plaintiff on the said tract of land, and without any previous agreement or understanding with her brought with him the said instrument of writing purporting to be a deed of conveyance, and requested the plaintiff to sign for same, stating that it was necessary for her to make the title over to him, as the said Scottish Loan Company had refused to lend the money to her on account of her age; she being, as he said, above the age, under their rules, to borrow money of them. While the defendant was her son, and she placed great confidence in him, she hesitated to do so, asking him what interest she would then have. The defendant replied that the land was about to be sold under the first mortgage, 'and you and the family will be turned out of the house and home, and be put in the public road, if you do not sign this deed.' The plaintiff began to cry, and the defendant walked away from the house, and in a few minutes came back again, and repeated the

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