Booker v. Wingo

• Decision Date: 05 July 1888
• Citation: 7 S.E. 49,29 S.C. 116
• Parties: BOOKER v. WINGO.
• Court: South Carolina Supreme Court

7 S.E. 49

29 S.C. 116

BOOKER v. WINGO.

Supreme Court of South Carolina

July 5, 1888

Appeal from common pleas circuit court of Spartanburgh county NORTON, Judge.

Suit in equity by Martha J. Booker against Robert Wingo to set aside a deed, and enjoin the collection of a negotiable note executed by plaintiff to defendant. The decree refused the relief as to the deed, but granted it as to the note. Both parties appealed.

Melton & Barrett, for plaintiff.

J. S R. Thomson and Nicholls & Moore, for defendant.

MCGOWAN J.

It seems that in 1884 J. A. Booker, a merchant of Welford county of Spartanburg, failed in business. He made an assignment of all his property to the defendant, Wingo, for the benefit of his creditors. Booker seems to have thought that, if he had a little time, he could pay out, and he prevailed upon the defendant and Samuel Morgan, the father of his wife, the plaintiff, to become his sureties for his debts, and he continued the business as agent of defendant assignee. Booker alone knew the combination of the safe, in which the defendant alleged that he had $1,200. Shortly afterwards Booker mysteriously disappeared, carrying with him, as the defendant alleged, the said $1,200. The defendant followed him to Birmingham, Ala., where he found that Booker had deposited $800 in bank under the name of John Davis. After they returned, Wingo prosecuted Booker for stealing the $1,200, declaring that all he wanted was to be secured against loss. The following arrangement was made, (one of her brothers acting for Mrs. Booker:) Wingo entered into bond to pay the debts of Booker, (some $4,300;) and in consideration thereof Mrs. Booker conveyed the two lots in contention, and, in addition, she and her brother, W. L. Morgan, as sureties for J. A. Booker, her husband, signed a promissory note to Wingo for $500. It was not "nominated in the bond" that Wingo was to stop the prosecution against the husband for larceny, (and there was some dispute as to the facts,) but most probably that was the understanding. At all events, Wingo, through a check signed by Booker in the name of "John Davis," got the money on deposit in Birmingham, and the prosecution was stopped. Wingo was let into the possession of the lots, and in all respects carried out his part of the agreement; but on October 27, 1886, nearly two years after the arrangement was made in March, 1885, the plaintiff, Martha J. Booker, commenced this action to have declared void and delivered up the aforesaid deed of the lots, and the promissory note for $500, which she signed as one of the sureties for her husband, on the grounds that she was a married woman at the time, and did not freely and voluntarily sign the papers, but was induced to do so under threats, by duress, and in order to save her husband from being prosecuted for larceny, etc. The cause was referred to S. J. Simpson, Esq., as special referee, who took much testimony, and made the following condensed and clear report of his findings: "(1) As matter of fact, I am not satisfied by a preponderance of evidence--certainly not by such a clear preponderance as ought to be produced in a case like this--that the defendant ever used towards plaintiff any threats of prosecuting her, or was guilty of any other conduct towards her such as would have the effect of putting her under duress before or at the time of the execution of the deed and note. (2) I am satisfied that one of the main considerations for the agreement between plaintiff and defendant was that defendant should use his influence to have the prosecution stopped which was then pending against plaintiff's husband," etc. Upon these findings of fact, he recommended that the relief sought, as to the conveyance of the lots, should not be granted; but that the plaintiff, being a married woman, had not the power to give a valid note as surety for her husband, and therefore she is not responsible for the $500 note, and that, so far as the plaintiff was concerned, the defendant should be perpetually enjoined from collecting said note. Upon exceptions of both plaintiff and defendant to this report, the matter came up for a hearing before Judge NORTON, who concurred in the result of the report of the referee, and decreed as follows: "The deed described in the pleadings is adjudged valid, having been followed by a change in possession, and acquiesced in for over nineteen months, having been originally procured upon the consideration of the compounding of a felony, voluntarily and without duress of imprisonment, or threats as to either the husband or wife. Plaintiff and defendant are in pari delicto. The contract is executed. The law will aid neither. The note described in the complaint is an executory contract, and is upon the same consideration as the deed, and, as to plaintiff, could not be collected; but the court would make no order in reference to it on that ground. The plaintiff, at the time of the execution of the note, was a married woman, and it was not given as to her separate estate. It is therefore adjudged that the defendant be perpetually enjoined from suing plaintiff on said note. It is further adjudged that the plaintiff have judgment for her costs and disbursements against the defendant," etc. From this decree both parties appealed.

Plaintiff's exceptions: "(1) In finding that the plaintiff executed the deed voluntarily, and that the defendant offered neither duress of imprisonment nor duress per minas to either the plaintiff or her husband in order to procure the same. (2) In not finding that the deed was procured by the defendant by the threats of imprisonment of the plaintiff and her husband on the charge of grand larceny, of which they were innocent. (3) In not finding that the deed was procured by the defendant by the imprisonment of the plaintiff's husband on charge of grand larceny, of which her husband was innocent. (4) In not finding that the defendant procured the imprisonment of the plaintiff's husband solely for the purpose of securing immunity from certain of her husband's debts for which he was surety, and that the plaintiff executed the deed in order to relieve her husband from such imprisonment. (5) In not finding that, even though the imprisonment of plaintiff's husband, in its inception, was for the purpose of promoting the ends of public justice, yet the defendant subsequently used such imprisonment to secure immunity from certain debts of the plaintiff's husband for which he was surety, and that the plaintiff executed the deed to relieve her husband from such imprisonment. (6) In not finding that, even though there was no duress, the deed was procured by undue influence. (7) In not finding that the deed, even though it was not procured by threats or imprisonment, was given to the defendant for no consideration save the settlement of a pending public prosecution against the plaintiff's husband on the charge of grand larceny, and that the plaintiff and defendant were not in pari delicto, but the former acted under circumstances of oppression, imposition, and hardship exercised by the defendant. (8) In not finding that, even though the deed was not procured from the plaintiff by the defendant by threats or imprisonment, and even though the defendant did not act under circumstances of oppression imposition, or hardship, yet the main and inspiring purpose was to settle the pending public prosecution for grand larceny against her husband, and to relieve him from the consequences thereof, and the...