Ballou v. Young

• Decision Date: 12 September 1894
• Citation: 20 S.E. 84,42 S.C. 170
• Parties: BALLOU v. YOUNG et al.
• Court: South Carolina Supreme Court

20 S.E. 84

42 S.C. 170

BALLOU v. YOUNG et al.

Supreme Court of South Carolina

September 12, 1894

Appeal from common pleas circuit court of Richland county; J. H Hudson, Judge.

Action by W. H. Ballou against Anna Young and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Robert W. Shand, for appellant.

Andrew Crawford, for respondents.

GARY J.

This was an action for the recovery of a lot of land in the city of Columbia, called "Lot No. 1," and of a half interest of an adjoining lot, called "Lot No. 2." Both parties claimed from a common source, and plaintiff's title, on the face of the papers, seemed perfect. The defense was fraud in two links of plaintiff's title. The verdict was for the defendants.

One Maria Young purchased lot No. 2 on July 17, 1880. Prior to that date, Josephine Young, the daughter of Maria, had purchased lot No. 1. Josephine died in 1878 or 1879, leaving four illegitimate children,--the four Shelton defendants to this action. Josephine died intestate, leaving as her lawful heirs her mother, the said Maria, and her sister, the defendant Anna Young. Thereupon the fee in lot No. 1 vested in Maria and Anna, and then Anna had a half interest in lot No. 1, and Maria had the other half, and the entire interest in lot No. 2. Maria Young died intestate in 1887, 1888, or 1889. Thereupon Anna Young became seised in fee of both lots. On 17th September, 1889, Anna Young signed a deed which purported to convey to E. M. Babbitt the interest which the children of Josephine would have inherited if they had not been illegitimate, to wit, all of lot No. 1, and a half interest in lot No. 2, in trust for these four children, with power to sell, "and also with power, if necessary, in his discretion, to mortgage the same, to enable him to best promote the welfare of said children." The defendant Anna Young claims that whatever paper she signed was under representations of Babbitt that it was different from said deed. Babbitt made a mortgage of this property, under this power, to W. S. Monteith, on 27th December, 1890, with power of sale, to secure a promissory note, payable one year thereafter; and on the same day Monteith assigned the mortgage and indorsed the note to plaintiff. After default plaintiff sold, purchased, and took deed, demand was made for possession, and action brought. Among other things, the presiding judge charged the jury that the said note and mortgage would not be valid in the hands of Ballou if Monteith knew that Babbitt did not borrow this money for the welfare of the four children of Josephine, even if Ballou did not know such fact. Plaintiff's attorney, in his argument, says: "Plaintiff's grounds of appeal make substantially two allegations of error in the charge: (1) In the law applicable to Anna Young's signature to this trust deed under the testimony. (2) In the law governing the holder of a promissory note and its security, which have been signed by a trustee, and put into circulation with intent to misapply the proceeds." The charge of the presiding judge is very full as to the rules governing in cases where a person signs a deed under fraudulent misrepresentations, and while there are parts of this charge which, considered in detail, would be erroneous, yet when--as it must be--it is considered as a whole no such error can be imputed to it. The question of negligence on the part of the defendant in the alleged signing of the deed was kept before the jury throughout the charge. The law, as charged by the presiding judge, is in harmony with the doctrine announced in Montgomery v. Scott, 9 S. C. 20, and 10 S.C. 449, which is one of the leading cases on this subject.

We come now to a consideration of the exceptions complaining of error on the part of the presiding judge under the second head. The words in the deed of trust conferring power on Babbitt to execute the note and mortgage are as follows: "With power to said trustee, at any time, in his discretion, to sell the whole or any part of said real estate, and reinvest the same in such manner as he deems best; and also with power, if necessary, in his discretion, to mortgage the same, to enable him to best promote the welfare of said children." The note and mortgage are both signed by Babbitt as trustee, and in the mortgage he uses the words: "I, Edward M. Babbitt, as trustee, for the children of Josephine Young, deceased." This was notice to Ballou of the trust and of the power under which the note and mortgage were executed. In fact, this is not questioned; appellant's attorney, in his argument, saying: "There is no doubt that both note and mortgage carried notice to Ballou that Babbitt was trustee, and notice of the terms of the trust deed; but they did not carry notice of any breach of trust."

Appellant contends that, if Ballou became the indorsee of the promissory note, and at the same time assignee of the mortgage, before the maturity...