Coney v. Timmons

• Decision Date: 12 January 1882
• Docket Number: CASE No. 1133.
• Citation: 16 S.C. 378
• Parties: CONEY v. TIMMONS.
• Court: South Carolina Supreme Court

16 S.C. 378

CONEY

v.TIMMONS.

CASE No. 1133.

Supreme Court of South Carolina.

Jan. 12th, 1882.

1. Land of A. was sold under legal process and purchased by B., who took titles in his own name, but verbally promised to hold the same in trust for Mrs. A.'s benefit, when paid the amount of his bid, and also certain other sums due by A. to B. Before this sale, B. stated that he would purchase for Mrs. A., and, in consequence of such representation, he obtained the property for less than its value. Mrs. A. took possession of the land and retained it, until sold under execution against B., when it was purchased by C., with full notice of these facts. Held, that no time being specified for Mrs. A. to make these payments, and no demand being made by B. for compliance, the contract remained of force, and C., having notice, was bound by its terms.

2. The change of possession was sufficient to take the agreement out of the statute of frauds.

3. The representation made by B. was calculated to stifle competition at the sale, which, on that account, under the charge of fraud made in the complaint, might be avoided; but as no party to this cause objects, and A. admits the trust and asks that it be carried into effect, the court will so decree.

4. The Statute of Limitations cannot avail the defendants, as it was not pleaded, and less than six years had elapsed since Mrs. A. was ousted by C. of her possession.

5. The decree of the court should fix a time within which Mrs. A. must make the stipulated payments, with an alternative provision for its payment out of the land, in case of her failure to do so.

Before PRESSLEY, J., Darlington, March, 1881.

In this case, Honorable Joseph B. Kershaw, of the Fifth Judicial Circuit, sat in the place of Mr. Justice McIver, who had been of counsel in the cause.

Action commenced in September, 1876, by C. J. Coney and Mary A., his wife, against W. B. Timmons and R. B. Garner, and afterwards, upon the death of Garner, revived against his administrator and heirs-at-law. The case is fully stated in the Circuit decree, which was as follows:

In September, 1867, H. E. P. Sanders, the United States Internal Revenue Collector, sold for taxes seventy-five acres of land, near Timmonsville, as the property of C. J. Coney, and it was bought by W. B. Timmons for $97.50.

J. B. O'Neall Divver was at the sale and had requested Mr. Keith to bid for said land, in behalf of Divver, to the amount of $150. He did not do so, because Timmons told them that he wished to buy the land to secure it to Mrs. Coney, and his statement to same effect is proven by other witnesses. None of them prove the terms of the arrangement between Coney and Timmons for securing the land to her. On that point, there is no testimony but that of Coney and Timmons, who differ widely in their statements. Coney says he paid the purchase-money, and that Timmons was to hold the land in trust for Mrs. Coney. Timmons says that he, himself, paid the purchase-money; that Coney was to repay that, and also a confidential debt due to Timmons by Coney; also an amount due by him for store rent-the sum not stated. The confidential debt arose thus: Timmons, as sheriff, had sold certain mules to Coney, and delivered them to him, on his promise to pay his bid or return the mules. He did not pay, but, after considerable delay, he returned mules which Timmons says were not those he had sold, but were inferior. Coney says he returned the right mules, except one, which he kept, placing another in its stead. His bid for mules was $485. They brought only $185 at the resale, and Timmons was compelled to pay the $300 difference to the execution creditor. This $300, the store rent, and $97.50 bid for the land, Timmons says, was to be paid by Coney before his wife was to have the land. He waited a month or more for Coney to fulfill his promise, and then being pressed and required by Sanders to comply with his bid, he (Timmons) paid the same and received an absolute title to himself. He allowed Mrs. Coney to take possession of the land, rent it out and receive the rents, because he still expected Coney to comply with his promise.

In November, 1870, the sheriff of Darlington levied on and sold the said land to R. B. Garner, under an execution against Timmons, and at the end of that year Garner got possession and has held the land ever since. He had notice, at the sheriff's sale, of Mrs. Coney's claim, and previously knew that she was in possession of the land.

Being compelled to rely either on the testimony of Timmons, or on that of Coney, in settling the most material point of the case, I choose that of Timmons, partly because he is less interested than Coney, who testifies in behalf of his wife, and partly because the statement of Timmons is more consistent with the unpleasant relations then pending between him and Coney about the mules.

I therefore find that Mary A. Coney was in possession of said land under a valid contract, that it was to be held by Timmons in trust for her, whenever he should be paid the items before stated, and that R. B. Garner has succeeded to the rights and the obligations of Timmons in that matter. Garner and his heirs have had possession from January, 1871, until now. He greatly improved the land by the yearly use of fertilizers and high cultivation, and the rental value thereby is greater now than it was before he improved it. Since this suit began, Garner died, and his administrator and heirs-at-law have been made parties thereto.

It is adjudged and decreed, That Mary A. Coney is entitled to an account from Garner's administrator and heirs-at-law respectively, of the rents and profits of the said land from the first of January, 1871, until the end of this year, the said rent to be estimated, not according to the present improved condition of the land, but according to its condition at the time Garner got possession. If the said rent, estimated and applied annually, shall fully pay the said sums of $300 and $97.50, and the store rent testified to by Timmons, with interest thereon, at the end of this year, the said land is to be conveyed to Mary A. Coney in fee. If the rents do not pay the said debts, with interest, then the land is to be conveyed to her whenever, after the end of this year, she shall pay the balance due thereon. And if the said rents shall exceed the said debts, with interest, then the amount of the excess is to be paid to the said Mary A. Coney, by the administrator of Garner, out of the assets of his intestate in due course of administration.

It is further ordered, That the clerk of the court take the testimony, and report the value of said rents, according to this decree; also the amount of the store rent, and the date from which it and the $300 should bear interest. That he also state the account, showing the amount of the balance on either side after applying the rents to the said debts.

To this decree, exceptions were filed by all parties, and appeal taken to this court.

Plaintiffs' exceptions were as follows:

1. Because the evidence showed that the defendant, Timmons, bid off the land at the sale by Sanders, at far below its value, on representations that it was for the benefit of M. A. Coney; that thereby an express technical trust was created in favor of said plaintiff, and his Honor erred in holding that the same was in any way affected by any arrangement subsequently made between the said Timmons and C. J. Coney.

2. Because of error on the part of his Honor, the presiding judge, in holding that M. A. Coney was chargeable for anything more than $97.50, the amount of the bid of said Timmons, on his construction of the evidence, which is excepted to as an error of fact (the evidence establishing that he had received $100 from C. J. Coney to pay such bid).

3. Because, from the evidence, the plaintiff was entitled to the land, with the rents of the same from January 1st, 1871, and his Honor should have so decreed.

4. Because his Honor should have ordered an account between the parties to ascertain the true indebtedness of C. J. Coney to W. B. Timmons, instead of ordering a specific sum to be allowed said Timmons on his own evidence.

Defendants' exceptions were as follows:

1. Because the Circuit judge erred in stating as a conclusion of fact that W. B. Timmons allowed M. A. Coney to take possession of the land, whereas it appears from the testimony that Coney and wife were in possession of the land before the sale to Timmons, and continued to retain possession thereafter without leave or license from Timmons.

2. Because the Circuit judge erred in holding, on the facts of the case and the law applicable to the same, that M. A. Coney had rights and equities in and to the premises in question enforceable in a court of justice, at the time the same were conveyed to R. B. Garner.

3. Because, if M. A. Coney had rights and equities in and to the premises in question at the time of the conveyance to Garner, she lost the same thereafter by her laches, and...