Board of Directors of Theological Seminary v. Lowrance

• Decision Date: 01 October 1923
• Docket Number: 11299.
• Citation: 119 S.E. 383,126 S.C. 89
• Parties: BOARD OF DIRECTORS OF THEOLOGICAL SEMINARY v. LOWRANCE ET AL.
• Court: South Carolina Supreme Court

119 S.E. 383

126 S.C. 89

BOARD OF DIRECTORS OF THEOLOGICAL SEMINARY v. LOWRANCE ET AL.

No. 11299.

Supreme Court of South Carolina

October 1, 1923

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by the Board of Directors of the Theological Seminary against Elizabeth G. Lowrance and others. Judgment for plaintiff, and defendants appeal. Affirmed.

H. P Green, of Columbia, for appellants.

D. W Robinson, of Columbia, for respondent.

COTHRAN J.

The plaintiff, a creditor of one W. B. Lowrance, who is not a party to this action, seeks to recover a judgment against the defendant Elizabeth G. Lowrance, his wife, requiring her to pay the debt which W. B. Lowrance owed to it, upon the ground that she has received conveyances of real estate from him which were voluntary and fraudulent; that she has sold the same, and received and used a part of the proceeds thereof, and that the remainder is in the hands of the master, represented by a bond and mortgage for $9,000 which the plaintiff claims is applicable to its claim. The matter is extremely complicated, and requires the most patient analysis and consideration of the facts.

It appears that the debt of W. B. Lowrance to the plaintiff arose in this way:

On September 2, 1905, he with six others, made a note (in renewal of a pre-existing indebtedness, contracted in 1900) to the plaintiff for $22,750.00, payable January 1, 1907. The interest was paid up to September 20, 1911, with the exception of $125 due by Lowrance, for which he gave his note, dated September 20, 1911, and payable November 20, 1911. The pro rata indebtedness of the seven makers was $3,250 each, as of September 20, 1911, Lowrance owing, in addition, the $125 note for interest. From time to time the makers, other than Lowrance, paid in full their proportionate shares of the debt, they remaining however, liable on their joint obligation for the share of Lowrance. He paid nothing after September 20, 1911, and continued liable for $3,250, with interest from September 20, 1911, and for the $125 note on account of unpaid interest.

In 1914 the plaintiff brought suit against W. B. Lowrance upon his indebtedness as stated, and soon thereafter the debtor filed a voluntary petition in bankruptcy, in which was scheduled the plaintiff's demand at $4,350, on September 13, 1915. No further action was taken in the state court in that suit. The claim was proved and allowed in bankruptcy. It does not appear that the plaintiff received any dividend in the bankruptcy proceeding, or that the bankrupt was discharged; and on September 21, 1917, the present action was instituted.

In January 1898, two years before the original debt was contracted, Lowrance owned valuable real estate in the city of Columbia at the northeast corner of Hampton avenue and Pickens street. It consisted of two parcels: (1) The "corner lot," fronting 66 feet on Hampton avenue, upon which there were two dwelling houses and a vacant and desirable building lot immediately at the corner; and (2) the "home place," adjoining the corner lot, and fronting 54 feet on Hampton avenue; both lots extending back on lines parallel with Pickens street 220 feet.

On January 4, 1898, W. B. Lowrance, in contemplation of marriage with the defendant Elizabeth G. Lowrance, then Green, executed and delivered what is referred to in the record for appeal as a conveyance, but what is plainly a declaration of trust, in which he acknowledges and declares that he is seized, possessed of, and holds the "home place" "in trust for the joint use of the said William B. Lowrance and Elizabeth B., his wife, during their joint lives and the life of the survivor of them, and to suffer and permit them to occupy, possess, and enjoy the same and to take and receive the rents, incomes, issues, and profits thereof; and upon the death of the survivor of them to the child or children of said marriage free of all further trusts; but, if the said Elizabeth B. shall leave no children of said marriage surviving her, then said premises shall revert to William B. Lowrance, or to his heirs or devisees free of all trusts."

On September 20, 1903, W. B. Lowrance conveyed to Elizabeth G. Lowrance the "corner lot" in trust "that if the said Elizabeth G. Lowrance should die without children by the said W. B. Lowrance, then this to be a deed of trust for the use of the said Elizabeth G. Lowrance during her life and at her death to revert to the said W. B. Lowrance, and in case of his death to revert to his heirs; but should the said Elizabeth G. Lowrance have children by the said W. B. Lowrance, then this deed to be absolute in fee simple to her and her children, subject to the condition also that the said W. B. Lowrance is to control the rents and use the said property during his life." This deed was not recorded until 1909.

On March 18, 1905, W. B. Lowrance conveyed to James M. Green, as trustee, the "corner lot," and his interest "as remainderman therein" in the "home place," under the prenuptial deed of January 4, 1898, upon the following trusts:

"To permit the said William B. Lowrance and Elizabeth Green Lowrance to occupy the said premises, receive the rents and profits therefrom, and use the same as they may desire during their joint lives, and to the survivor for life, and after the death of both of them, to convey to the children of the said William B. Lowrance by Elizabeth Green Lowrance and his son, J. D. Lowrance, by a former marriage, share and share alike, in fee, the children of a deceased child to take the share their parent would take if living. If the said William B. Lowrance has no children by his said wife, Elizabeth Green Lowrance, then to hold the said premises for the use and benefit of the said J. D. Lowrance, during his life, and after his death to the heirs at law of the said J. D. Lowrance. The estate herein created for the benefit of the said J. D. Lowrance shall not be subject to his debts.

Upon the further trust to sell and convey the whole or any portion of the said real estate first described above, and reinvest the same with similar trusts as those set forth hereinbefore, upon the request in writing of the said William B. and Elizabeth G. Lowrance or the successors of them."

On May 25, 1906, James M. Green, trustee, W. B. Lowrance, and J. Douglass Lowrance (the last named being a son of W. B. Lowrance by a former marriage) conveyed to Elizabeth G. Lowrance the "corner lot," "free from any use or trust in favor of us or any of us." The deed contained the following statement:

"The undersigned, J. D. Lowrance has, or is supposed to have, some interest in said premises under the said trust, and it is the desire of the said William B. Lowrance, J. D. Lowrance, and James M. Green, as trustee, to convey the said tract of land to Elizabeth G. Lowrance, the principal beneficiary under said deed of trust, in fee simple, so as to confer upon her all right, title, and interest of every character in the said lot of land."

On January 8, 1909, W. B. Lowrance conveyed to Elizabeth G. Lowrance all his right, title, and interest in the "home place," upon a stated consideration of $2,000, the dimensions being stated as 45 feet fronting on Hampton avenue and running back 220 feet, the frontage not agreeing with that in the prenuptial deed of January 4, 1898, 54 feet. W. B. Lowrance had, on February 6, 1904, given a mortgage upon the "corner lot" to John J. Chambers, trustee, to secure a bond for $3,500, payable 3 years from date, interest at 7 per cent. In October, 1904, this bond and mortgage were assigned to Edward Chambers; on March 1, 1906, by E. Ehrlich to D. W. Robinson, trustee; on April 12, 1912, by D. W. Robinson to ______; on April 14, 1912, by J. A. Abernathy, executor of Sarah O. Burton, to ______. (The record for appeal is incomplete in the particulars above indicated, and also in showing the title of W. B. Lowrance, as guardian, to said bond and mortgage, which, however, appears to be conceded in the respondent's argument: "W. B. Lowrance, as guardian of certain children, having procured the assignment to him" of said bond and mortgage.)

In 1912 W. B. Lowrance, as guardian for certain children, brought an action against himself, individually, and Elizabeth G. Lowrance, to foreclose the Chambers mortgage, upon which there was a balance due of $1,500, the difference ($2,000 and interest) presumably having been paid by Lowrance. This appears to have been a friendly suit. Everything was done by consent. The defendants had no attorney. The summons and complaint were served by acceptance. The answers were signed individually. The order of reference was consented to in like manner. The master reported $1,989.98 as the balance due, including attorneys' fees. Decree of foreclosure was entered and the sale had on November 4, 1912, at which the property was bid in by Elizabeth G. Lowrance at $3,000. The master's report of sale contains no statement of disbursements. He, however, executed deed to Mrs. Lowrance on November 11, 1912.

On June 11, 1913, Elizabeth G. Lowrance brought an action against W B. Lowrance, James M. Green, trustee, J. D. Lowrance, and A. F. Spigner, for the purpose of carrying into effect a contract which she had entered into with Spigner for the sale of both the "home place" and the "corner lot," at $35,000; obviously a friendly suit for specific performance, in which the title of Mrs. Lowrance could be cleared up and established. The complaint in that action alleged fee-simple title to both lots in Mrs. Lowrance. W. B. Lowrance answered, admitting her title as claimed. J. D. Lowrance does not appear to have filed an answer. The trustee answered, setting up his interest as trustee in the "home place," and conceding that...