Bank Of Charleston Nat. Banking Ass'n v. Dowling

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMcIVER
Citation29 S.E. 788,52 S.C. 345
Decision Date19 April 1898
PartiesBANK OF CHARLESTON NAT. BANKING ASS'N et al. v. DOWLING et al.

29 S.E. 788
52 S.C. 345

BANK OF CHARLESTON NAT. BANKING ASS'N et al.
v.
DOWLING et al.

Supreme Court of South Carolina.

April 19, 1898.


Fraudulent Conveyances—Evidence—Findings of Court — Review — Laches — Wills—Construction—Ejectment — Purchaser at Sheriff's Sale—Homestead.

1. Findings of the trial court, when supported by a preponderance of the evidence, will not be disturbed on appeal.

2. Defendant, in November, 1874, conveyed to his brothers the land in question for $16,000, and in March, 1875, took a mortgage thereon to secure payment. At the time of the conveyance defendant engaged in business, and his firm failed in 1877. Defendant testified that in 1875 he assigned the mortgage to his sister, Mrs. B., to secure an old debt, which originated in 1869. The mortgage showed indorsements as follows: In 1876, by defendant to his wife and B., her brother. In 18S0, by Mrs. B. to S., a brother of defendant's wife, and others, not named. In 1885 S. made a formal assignment to defendant's wife. In 1877 defendant's brothers surrendered the premises to defendant in satisfaction of the mortgage, and he occupied the same until the commencement of the suit. One of the brothers deeded the premises to defendant's wife without consideration. On defendant's examination he indicated that the real purpose of the transfers was to save something for his wife's benefit, and that the assignment of the mortgage to his wife was only to convey what remained after his debt to Mrs. B. was satisfied. Mrs. B. and defendant both testified that the bond and mortgage remained in her possession until 1880. There were two credits indorsed on the bond by defendant in his own name in 1875 and 1877. Held sufficient to sustain a finding that the mortgage was transferred to defraud defendant's creditors.

3. In a suit to set aside conveyances of a mortgage as fraudulent, where plaintiffs, in their complaint, allege that they had no knowledge of the fraud until a short time before the action was commenced, although the matters constituting the fraud existed for a long time before the action, it will not be barred by laches.

4. A will by a wife, which gives her property to the husband, and to such person or persons as he may appoint by his will, to be by him managed, controlled, changed, sold, or otherwise disposed of at and by his direction, and with out accountability therefor, for the use and benefit of her children, gives the husband an absolute estate therein.

5. A purchaser of land at sheriff's sale cannot recover possession thereof before delivery of the deed.

6. A sale of real estate belonging to a judgment debtor, who is the head of a family, without setting apart his homestead, is void.

Appeal from common pleas circuit court of Barnwell county; D. A. Townsend, Judge.

Action by the Bank of Charleston National Banking Association and others against J. C. Dowling and others. From a judgment in favor of plaintiffs, defendants appeal. Modified.

The following Is the decree of the court below:

"This action is brought by plaintiff the Bank of Charleston National Banking Association, in behalf of itself and all other creditors of the defendants J. C. Dowling and E. H. Dowling who shall in due time come into this action, and contribute to the expense thereof. It was first heard by his honor, Judge Witherspoon, who rendered a decree dismissing the complaint. From this decree plaintiff appealed to the supreme court, which court modified said decree, and remanded the cause to the circuit court for trial. See 45 S. C. 677, 23 S. E. 982. The supreme court held it was error to dismiss plaintiff's complaint, which sought both legal and equitable relief; that plaintiff, as a judgment creditor of J. C. Dowling and E. H. Dowling, could maintain the action. The equitable issues were not passed upon by Judge Witherspoon. At the March term of the court of common pleas for Barnwell county, 1897, the equitable issues raised by the pleadings were heard by me on the pleadings and the evidence previously taken in the cause. After full argument, I reserved my decision. The case Is complicated, the testimony voluminous, and the legal questions involved were exceedingly grave and important. It may be as well in the outset to state that Judge Witherspoon in his circuit decree held that the plea of the statute of limitations set up by the defendants had no application to this case. From this part of the decree there is no appeal. This question, therefore, is res adjudicata. At the hearing before me the plea of the statute of limitations was not pressed. If the question is not res adjudicata, but an open question, I concur fully in the conclusion reached by Judge Witherspoon, and hold that the plea of the statute of limitations is not applicable to this cause, and cannot avail the defendants.

"In order to a clear understanding of the cause, it is necessary to state at length the facts as I find them from the testimony. The defendant E. H. Dowling, in November. 1874, executed unto his brothers, J. C. Dowling and C. T. Dowling, a deed of conveyance for the tract of land containing 1, 800 acres, situate In Barnwell county, on which

[29 S.E. 789]

he lived, for $16,000. Some four months afterwards, to wit, on March 13, 1875, the defendants J. C. Dowling and C. T. Dowling executed to E. H. Dowling a mortgage over the tract of land for $16,000. E. H. Dowling remained in possession for some time after the deed of conveyance, and at the time of the conveyance was just entering a co-partnership with W. H. Wroton to do a factorage business in Charleston under the firm name of Wroton & Dowling. In this firm E. H. Dowling invested from $4,000 to $5,000. This firm failed in business during the year 1877 for $60,000, according to the testimony of E. H. Dowling. During the fall of 1875 E. H. Dowling drew out $1,200 to $1,500, all the money he could get, from the firm of Wroton & Dowling, and invested in lands in Lexington county known as the 'Mike Barr Tract.' The balance, he says, 'we had eaten up.' And as this tract is very valuable, and plays a very important part in the various transactions connected with this case, it may be well to cite the various transfers and. uses made of it as I gather them from the testimony. Shortly after the failure of the firm of Wroton & Dowling, E. H. Dowling conveyed the Mike Barr tract of land to his brother-in-law, Philip C. Spann. The deed bears date January 10, 1878. I am satisfied this conveyance to Philip C. Spann was made to save it from creditors and that Philip C. Spann received it for that purpose. In answer to a direct question why he made this conveyance, E. H. Dowling says: 'Mr. Philip C. Spann was a friend and neighbor, and I was out of everything, and if there was anything that could be gotten out for my wife, I wanted it done.' Philip C. Spann afterwards conveyed this Mike Barr tract of land to Mrs. R. A. Barr, the sister of E. H. Dowling (I will speak of this transaction later), and Mrs. Barr assigned to Philip G. Spann the mortgage E. H. Dowling had taken from his brothers, John C. Dowling and C. T. Dowling. This mortgage had on it the following entries:

" T hereby transfer the within bond and mortgage to R. A. Barr and V. S. Dowling. E. H. Dowling. March 15, 1876.'

" 'For value received, I do hereby assign the within mortgage to P. C. Spann and others. R. A. Barr. January 31, 1880.'

" '(5) I hereby transfer the within bond and mortgage to Virginia Spann Dowling. Philip C. Spann. Witness: H. S. Stead-man. Philip C. Spann. October 22nd, 1885.'

" 'State of South Carolina, Lexington County: Whereas, the within mortgage and bond thereby secured, assigned and delivered to R. A. Barr and V. S. Dowling in joint interest, and the said R. A. Barr the 31st of January, 1880, made indorsement designed to assign only the interest and share of the said R. A. Barr to me, the undersigned assignor, without reference to or affecting the interest or share of the said V. S. Dowling therein, know all men that I, Philip C. Spann, of the said state and county, assignee of the said R. A. Barr, as aforesaid, for value to me paid by Virginia S. Dowling, of the county of Barnwell, in state aforesaid, at and before the sealing and delivery thereof, the receipt whereof is hereby acknowledged, have released, bargained, sold, assigned, and set over unto the said Virginia S. Dowling, her heirs and assigns, the said interest and share in and to the within mortgage, and unto the said Virginia S. Dowling, her heirs and assigns, do quitclaim unto all mortgaged premises therein mentioned and described, together with the rights, members, and a'p-purtenances thereto belonging, and all my estate, right, title, and interest therein; to have and to hold all and singular the premises granted and assigned or mentioned or intended unto the said Virginia S. Dowling, her heirs and assigns forever, free and released of all claim and demand by reason of any assignment aforesaid, and subject only to the right and equity of redemption of the within named mortgagors. In witness whereof, I have hereunto set my hand and seal this 22nd day of October, A. D. 1885, and of the sovereignty and independence of the United States of America 110th year. Philip C. Spann. [L. S.] Signed, sealed, and delivered in the presence of H. S. Steadman, John S. Matterson.'

"The defendants J. C. Dowling and E. H. Dowling only made two payments on the mortgage debt, —one on December 20, 1875, of $1,016; the other in January, 1878, of $86. The latter payment is entered as having been made on 25th February, 1877, but C. T. Dowling, who made it, is positive it was made in 1878. The mortgagors, after the condition of the mortgage had been broken, voluntarily surrendered possession of the mortgaged property to E. H. Dowling the last of December, 1877. The defendant E. H. Dowling has continued to reside, and is now residing, upon the premises. There is a question as to the character of E. H. Dowling's...

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17 practice notes
  • Burnett v. United States, Civ. A. No. 69-390.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 29, 1970
    ...Cir. 1968) 394 F.2d 167, 169. 9 Somewhat related to the issue, though not cited by either party, is Bank of Charleston v. Dowling, (1898) 52 S.C. 345, 29 S.E. 788. The gift in that case was to a surviving husband, for life with power to appoint by will, the property to be "managed, controll......
  • Lynch v. Lynch, No. 13169.
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1931
    ...than unconditional fee-simple ownership, and to sustain this proposition defendant relies upon the case of Bank of Charleston v. Dowling, 52 S. C. 345, 29 S. E. 788, 805. In that case a wife devised all of her property to her husband in trust, but with unlimited powers in relation to the ex......
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...S.E. 127, 128, 129; Younger v. Massey, 39 S.C. 115, 17 S.E. 711; Barrett & Co. v. Still, 102 S.C. 19, 29, 86 S.E. 204; Bank v. Dow-ling, 52 S.C. 345, 366, 29 S.E. 788; South Carolina Cotton Growers' Co-op. Ass'n v. English, 135 S.C. 19, 133 S.E. 542; Epworth Orphanage v. Strange, 158 S.C. 3......
  • Bd. Of Dir.S Of Theological Seminary v. Lowrance, (No. 11299.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 1, 1923
    ...with the fee-simple title, coupled with the necessary incident of absolute power of disposition by will. The case of Bank v. Dowling, 52 S. C. 345, 29 S. E. 788, is replete with authorities holding that "an unlimited power of disposition given by will, carries the absolute interest in the p......
  • Request a trial to view additional results
17 cases
  • Burnett v. United States, Civ. A. No. 69-390.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 29, 1970
    ...Cir. 1968) 394 F.2d 167, 169. 9 Somewhat related to the issue, though not cited by either party, is Bank of Charleston v. Dowling, (1898) 52 S.C. 345, 29 S.E. 788. The gift in that case was to a surviving husband, for life with power to appoint by will, the property to be "managed, controll......
  • Lynch v. Lynch, No. 13169.
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1931
    ...than unconditional fee-simple ownership, and to sustain this proposition defendant relies upon the case of Bank of Charleston v. Dowling, 52 S. C. 345, 29 S. E. 788, 805. In that case a wife devised all of her property to her husband in trust, but with unlimited powers in relation to the ex......
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...S.E. 127, 128, 129; Younger v. Massey, 39 S.C. 115, 17 S.E. 711; Barrett & Co. v. Still, 102 S.C. 19, 29, 86 S.E. 204; Bank v. Dow-ling, 52 S.C. 345, 366, 29 S.E. 788; South Carolina Cotton Growers' Co-op. Ass'n v. English, 135 S.C. 19, 133 S.E. 542; Epworth Orphanage v. Strange, 158 S.C. 3......
  • Bd. Of Dir.S Of Theological Seminary v. Lowrance, (No. 11299.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 1, 1923
    ...with the fee-simple title, coupled with the necessary incident of absolute power of disposition by will. The case of Bank v. Dowling, 52 S. C. 345, 29 S. E. 788, is replete with authorities holding that "an unlimited power of disposition given by will, carries the absolute interest in the p......
  • Request a trial to view additional results

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