Cathcart v. Jennings

• Decision Date: 01 November 1926
• Docket Number: 12093.
• Citation: 135 S.E. 558,137 S.C. 450
• Parties: CATHCART et al. v. JENNINGS et al.
• Court: South Carolina Supreme Court

135 S.E. 558

137 S.C. 450

CATHCART et al. v. JENNINGS et al.

No. 12093.

Supreme Court of South Carolina

November 1, 1926

Appeal from Common Pleas Circuit Court of Fairfield County; A. L Gaston, Special Judge.

Petition by Thomas M. Cathcart and others, as heirs at law of John H Cathcart, deceased, to set aside, vacate, and annul a decree in a cause entitled Mary A. Kerr v. John H. Cathcart, which petition was opposed by J. Marvin Jennings and others. Judgment for J. Marvin Jennings and others, and petitioners appeal. Affirmed.

The judgment of Hon. A. L. Gaston, special presiding judge of the circuit court was as follows:

"On the 8th of March, 1890, a final decree and judgment was rendered by Judge J. J. Morton in the case of Mary A Kerr against Ellen Cathcart and John H. Cathcart, in the court of common pleas for Fairfield county, and is now entered as judgment roll No. 1712. Reference to this judgment roll shows that the summons, dated January 15,1890, was lodged in the office of the sheriff of Richland county, this state, on January 16, 1890, and served on said date by the sheriff thereof, together with the complaint and a notice to procure a guardian ad litem upon the defendant John H Cathcart personally, at the State Lunatic Asylum in Columbia S. C., where he was confined as a lunatic. The defendant Ellen Cathcart accepted in writing service of the summons and complaint. The notice to the defendant John H. Cathcart sets forth that, unless he procures a guardian ad litem within 20 days from the service of the summons upon him that application will be made to Judge I. D. Witherspoon of the Sixth circuit at Yorkville on the 13th of February next, at 10 o'clock forenoon, or as soon thereafter as counsel can be heard, for an order appointing a guardian ad litem in his behalf.

"A petition was thereafter filed by the plaintiff through her attorney, setting forth that the action had been commenced for the purpose of quieting title of the plaintiff to a lot in Winnsboro, S. C., containing about 3 acres described in the complaint, that the summons and complaint had been served upon the defendant John H. Cathcart, who has been judicially declared a lunatic, and was then in the custody of the South Carolina Lunatic Asylum, and, although more than 20 days had elapsed since the service of the summons and complaint upon him, no application had been made in his behalf for the appointment of a guardian ad litem; that James Glenn McCants is a competent person to protect the rights of the said lunatic, has no interest adverse to the lunatic, and is not connected in business with the attorney of the adverse party, and prays for his appointment. The consent in writing of James Glenn McCants is indorsed upon the petition. On the 21st of February, 1890, an order for the appointment of James Glenn McCants as guardian ad litem was granted by Judge J. J. Norton, presiding judge. A formal answer was filed by the guardian ad litem.

"The complaint alleges:

"That the plaintiff had bought 3 acres of land in the town of Winnsboro from the defendant Ellen Cathcart, for value, on January 20, 1881, and received a deed in fee thereto, and that both parties believed and intended the deed to convey the fee. That the plaintiff had an offer in December, 1889, to sell the land to the Winnsboro Cotton Mills, and recently discovered a cloud upon her title existed, by reason of the following facts, to wit:

"That on the 9th of April, 1859, a judgment was obtained by the president and directors of the Bank of South Carolina against Richard Cathcart (now deceased), and on August 2, 1869, execution was issued and a tract of land containing 50 acres, of which the 3-acre tract (of the plaintiff) is a part, was sold thereunder on September 6, 1869, and conveyed by the sheriff to the defendant John H. Cathcart as trustee for $830; that said John H. Cathcart bid off said land and took title as trustee at the request of the defendant Ellen Cathcart, and was to hold the land upon such trusts as he should thereafter declare, with the understanding that he should hold the title until Ellen Cathcart paid him $830, the purchase money for the land; and that she did thereafter pay him the full amount of $830, and also $6 for the fee of the sheriff's deed and recording it, and a receipt therefor was indorsed by John H. Cathcart upon the sheriff's deed, and that John H. Cathcart, instead of declaring that he so held the land, made an indorsement upon the sheriff's deed in these words:

"'I, John H. Cathcart, do hereby declare that I hold the within described tract of land for the following uses to-wit: For my own proper use and behoof until Mrs. Ellen Cathcart, wife of Richard Cathcart, shall pay me the sum of $830, and on and after such payment for the sole and separate use of the said Ellen Cathcart as her trustee for and during the term of her natural life, and after her death for her issue who may survive her and the issues of deceased children, they taking per stirpes, the said land to be sold for a change of investment whenever she shall desire it and I approve it.'

"The complaint further alleges that this declaration of trust was made by him without the knowledge or consent of Ellen Cathcart, and was contrary to her wishes, and she had repaid the purchase money in her own right, expecting to receive a fee-simple title, and that said Ellen Cathcart did not discover that the declaration of trust had been made with limitations until December, 1889, and she is now an aged and childless widow.

"The complaint further alleges that John H. Cathcart, since the making of the declaration of trust, has been judicially declared of unsound mind, and therefore prevented from legally correcting the erroneous declaration of trust, and that the defendant Ellen Cathcart is willing that the cloud be removed from plaintiff's title; and the complaint prays that the declaration of trust, so far as it affects the premises held by the plaintiff, be adjudged inoperative and void, and that the plaintiff be adjudged to hold her 3 acres of land in fee simple, discharged from all the trusts, limitations, and conditions contained in the declaration

of trust, and for such other and further relief as may be just.

"The defendant Ellen Cathcart also filed an answer in which she admits the allegations of the complaint, and further says that the tract of land, of which the lot described in the complaint is a part, was formerly owned by her husband, the late Richard Cathcart, deceased, and was levied upon under judgment and sold by the sheriff to John H. Cathcart as trustee, and that she had requested him, on the morning of the day of sale, to bid off and hold this land as trustee until she could repay him the purchase money and expenses of the sale, because she wanted to retain the property on which she and her husband then resided as a home, and it was agreed between them that he should retain the rents in lieu of interest, and that she did repay the purchase price on the 11th of January, 1873, and also $6 to cover the costs of the sheriff's deed and recording; that she always understood that she was buying the fee, and relied upon John H. Cathcart, and was ignorant of the fact of the declaration of trust, which was made without her knowledge or authority and she did not discover it until November or December, 1889, and that she never would have accepted only a life estate in the land for which she paid the full purchase money; and, by her answer, prayed that the declaration of trust, in so far as it deprived her of the fee, be declared null and void, and that the clerk do execute a deed to her in fee of all the interest in remainder of John H. Cathcart in the premises.

"Judge Norton, on hearing the complaint and answers, and with the consent of the attorney for the defendant Ellen Cathcart, and the guardian ad litem of the defendant John H. Cathcart, ordered, on February 22, 1890, that a referee take the testimony and report his conclusions of fact to the court, and this order of reference was on February 28, 1890, with the consent of all parties, followed by an order of Judge Norton amending the first order of reference to require the referee to take the testimony only and report it to the court.

"A full report of all testimony appears in the record, including the evidence of Mrs. Ellen Cathcart, who testified, among other things, that John H. Cathcart bid off the land at her request and retained possession of the land until she repaid him the purchase money in 1873, when she went into possession of the land, and got possession of the sheriff's deed and the receipt, and that she built a house on the land costing her $2,300. Mr. A. S. Douglas testified that John H. Cathcart was adjudged a lunatic by the probate court on August 27, 1874, in a proceeding instituted in June, 1874, also that the declaration of trust was in the handwriting of Col. James H. Rion, since then deceased, and that the receipt is in the handwriting of John H. Cathcart, and both writings were indorsed on the sheriff's deed. It was also admitted before the referee that the sheriff's deed and declaration of trust are both recorded in the clerk's office, and that Mrs. Ellen Cathcart has no living children, and her only son, William, died in 1875, aged 26 years. Her husband died in August, 1870.

" The record further shows that Mr. McCants, the guardian ad litem, was present at all the hearings before the referee, and took part therein, and was especially vigilant in objecting to the testimony between the parties under section then 400 of the Code. The final decree of Judge Norton also sets forth the fact that the guardian ad litem forcibly argued his objections at the hearing by the court. The final decree of Judge Norton of date March

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