Brown v. Brown

• Decision Date: 19 April 1893
• Citation: 17 S.E. 452,38 S.C. 173
• Parties: BROWN et al. v. BROWN et al.
• Court: South Carolina Supreme Court

17 S.E. 452

38 S.C. 173

BROWN et al. v. BROWN et al.

Supreme Court of South Carolina

April 19, 1893

Appeal from common pleas circuit court of Florence county; J. J Norton, Judge.

Action by William E. Brown and James Brown, executors of John A Brown, deceased, to enjoin creditors of the estate from suing at law, to call them in to prove their claims, and for an account and a sale of lands for the payment of debts. From the decree rendered, the American Freehold Land Mortgage Company, a creditor, appeals. Affirmed.

John T Sloan, Jr., and Allen J. Green, for appellant.

American Freehold Land Mortgage Co. C. A. Woods, for respondents.

McGOWAN J.

John A. Brown departed this life in August, 1887, leaving a large body of lands, portions of which were heavily incumbered. A short time before his death he made a will, the validity of which was contested by his daughter Mary R. Brown on the ground of incapacity at the time of its execution, but the will was established. All the said estate was devised to his two sons James H. Brown and William E. Brown in trust, to be managed and rented by them, and the rents applied to the payment of debts, giving them power to sell any or all of the lands for payment of debts, if the rents should not be sufficient for that purpose within a reasonable time. After the payment of debts the trustees were directed to convey two certain tracts of land to Mrs. Brown and Mrs. Clayton, respectively, two daughters of the testator. The remainder of the lands the trustees were directed to divide into four equal portions; conveying to James H. Brown, William E. Brown, and Walter F. Brown, each, one portion, and to Louisa A. Brown and Margaret A. Brown, each, one half of the remaining share. These devises were to the testator's children for life, and to the heirs of their bodies, respectively. The personal property was devised to Louisa A. Brown and Margaret A. Brown, etc. James H. Brown and William E. Brown were also appointed executors. At the time the will was executed the testator made a deed by which, in consideration of love and affection, he conveyed to his daughters Louisa A. Brown and Margaret A. Brown the homestead tract of land, and the McKissick tract adjoining, etc. The estate was found to be largely in debt, the creditors being very pressing; and the executors, finding it impossible to carry out the scheme of the will, commenced this action to enjoin creditors from suing at law; to call them in to prove their claims; for account and the sale of lands for the payment of debts, etc. Mrs. Brown and Mrs. Clayton answered the complaint, claiming parol gifts from the testator of the lands devised to them, and alleging the deed to Margaret A. Brown and Louisa A. Brown to be invalid because of the incapacity of the testator. Mrs. Clayton, however, abandoned this last position at the trial. An order was made in the cause enjoining creditors from suing at law, requiring them to present and prove their claims before the master, and directing the master to take the testimony, and report the same to the court. There was no objection made to any of the claims presented, except a mortgage debt of the American Freehold Land Mortgage Company of London for $7,500, and interest thereon.

The only two issues in the case are: (1) Are Mrs. Clayton and Mrs. Brown entitled to hold the lands in their possession by parol gift? If not, are they entitled to compensation for improvements alleged to have been made on those lands? (2) To what extent is the mortgage of the American Freehold Land Mortgage Company a valid claim against the estate?

1. As to the claim of parol gift of lands to Mrs. Brown and Mrs. Clayton, daughters of the testator. The master took and reported the testimony, which is all printed in the brief. It seems that the testator, in his lifetime, placed his two daughters, viz. Mrs. Bowen and Mrs. Clayton, each, on a particular tract of land, and at times was heard to say that he intended to make a gift to each one of the particular tract of land occupied by her; that he was often asked by Mrs. Bowen to make titles, but, being embarrassed, he declined to do so; and, up to the time when he made his will, he certainly did not understand that he had given titles to the lands, for he disposed of them by his will. We think the circuit judge substantially stated the evidence as follows: "The gifts are alleged to have been made in November, 1878, yet rent notes were given by Mrs. Bowen and Mrs. Clayton in December, 1878, and January, 1879, at the time they entered into actual possession, and Mrs. Bowen's rent note was for the identical land claimed now as a gift. All of Brown's children, without compulsion, signed an acknowledgment of tenancy in 1883, and this paper was exhibited to the agent of the mortgagees aforesaid at the time the mortgage hereafter mentioned was given to the American Freehold Land Mortgage Company. It was clearly understood by all the family that (the testator) Brown held the title and the control of all his lands until such time as he thought expedient to make gifts to his children. A future intention on his part, and an expectation on their part, cannot be converted into a gift. Removals were made by Brown of Mrs. Clayton and Williams E. Brown from one tract to another, and the lines of the tract claimed by Mrs. Bowen were surveyed and changed against Brown's protest. No witness is produced to the alleged gifts, and there is no proof of time, place, or circumstance of such gifts. Clayton paid $500,--his wife's proportion of the debts,--in order to get title, but this alleged contract was canceled, and Brown actually repaid him the money. The lands were always returned for taxes by Brown, and he paid the taxes as long as he lived, and his executors after his death," etc. The judge found and held that "the alleged parol gift has not been established." To this decree A. H. Brown excepted, because the judge did not dismiss the complaint, as to him, with costs, as demanded in his answer. And Mary A. Bowen and her children excepted to the same on several grounds, which are all printed in the brief. We think that a careful reading of the testimony will show that Mrs. Bowen was put into possession of a tract of land by her father, the testator, with the expectation of making title to her for it at some future day, if, as he hoped, he could relieve himself from his debts, which were pressing, but which, as it turned out, he was never able to accomplish. This is shown by Exhibit A, dated June 9, 1883, as follows:

"We, the undersigned heirs at law of John A. Brown, do hereby make a free acknowledgment that we are tenants at will of the said John A. Brown, holding over, and have no legal right to the land we live on, known as the 'Crawford and Thomson Lands,' and never was so understood by us. In testimony whereof we have hereunto affixed our hands and seals. [Signed] M. A. Brown. [L. S.] J. H. Brown. [L. S.] Walter F. Brown. [L. S.]

"I do voluntarily waive all rights, as above specified, so far as the land I live upon, and any other my father owns. [Signed] Lizzie Clayton. [L. S.]"

James M. Brown testified that he was present when Mrs. Bowen signed it: "She seemed unwilling to sign at first, but I read it over to her several times, and explained it; that we all expected to sign it; I had already signed; that it would not injure us at all; that father owned the land, and it would [not] prevent him from carrying out his purpose of giving us the land at some future day. He (father) spoke up, and said he did not consider any of us as owning the land, or having any claim on it, but the men he was negotiating the loan with required the paper of him. She then signed it," etc. Mrs. Bowen was one of the married daughters of the testator, who put her into possession of one of his tracts of land, without making any charge of rent, with the hope of being able to pay off his debts, and make her title to the same, but before that was done he died, disposing of the lands by will. "An expectation on one part, and intention on the other, will never constitute a binding contract." In re Kirkpatrick's Estate, (S. C.) 13 S.E. Rep. 450. "Improvements and use are not evidence of gift from parent to child. The family relation is sufficient to explain it." Cox v. Cox. 26 Pa. St. 375. "One who enters as a tenant of the owner is not presumed to hold adversely, even after his term has expired. In all such cases, if there is a relation adequate to account for the possession, the law accounts for it by that law, unless the contrary is proved." Hertzog v. Hertzog, 29 Pa. St. 465. We agree with the circuit judge that "the alleged parol gift of the lands was not established."

2. Under a call for creditors to present and prove their demands before the master, the American Freehold Land Mortgage Company of London, Limited, presented the notes of the intestate, John A. Brown, for $7,500, with interest at 8 per cent. per annum, secured by a mortgage of a part of his lands, carefully described in the mortgage, bearing date June 28, 1887. The executors interposed the defenses of usury and partial failure of consideration. Without going into the testimony in detail, we think it sufficiently appears that W H. Duncan, a lawyer of Barnwell, was engaged in the business of negotiating loans of money on mortgages of real estate; and the intestate, Brown, having large bodies of land, and being much embarrassed, applied to him, (Duncan,) through his subagent, Johnston, to procure for him a loan of money. Brown filed the usual written or printed application, appointing Duncan his agent for that purpose, undertaking to pay him 20 per cent. for services, and the services of those who assisted him, in case of success, and that the loan...