Ellis v. Johnson

• Court: South Carolina Supreme Court
• Writing for the Court: STABLER, J.
• Citation: Ellis v. Johnson, 143 S.C. 325, 141 S.E. 564 (S.C. 1928)
• Decision Date: 07 February 1928
• Docket Number: 12370.
• Parties: ELLIS v. JOHNSON et al.

141 S.E. 564

143 S.C. 325

ELLIS v. JOHNSON et al.

No. 12370.

Supreme Court of South Carolina

February 7, 1928

Appeal from Common Pleas Circuit Court of Darlington County; E. C Dennis, Judge.

Action by Mary J. Ellis against Ellen Johnson and husband. Judgment for defendants, and plaintiff appeals. Modified and remanded.

Miller Lawson & Stokes, of Hartsville, for appellant.

Dargan & Paulling, of Darlington, for respondents.

STABLER J.

More than 30 years ago one Sally Johnson owned in fee a tract of land of about 180 acres (which since has become very valuable), near the town of Hartsville. At her death (the date of which is not given), she left as her sole heirs at law her husband, W. G. Johnson, and her two daughters, each of whom took a one-third undivided interest in these lands. The defendant Ellen Johnson was one of the daughters. W. G Johnson, in 1893, to secure a loan of $250 made him by one A M. McNair, mortgaged his one-third interest. After the death of Sally, he married Polly Johnson. They had one child, the plaintiff in this case, who was born in 1897. At his death in 1898 Johnson left as his heirs his widow, Polly Johnson, and his three daughters.

Polly Johnson, shortly after the death of her husband, went, with her little daughter, Mary, to live with near relatives. In 1918 she died, having never returned to live at the old home. Ellen Johnson was married twice, the first ti me to Shelton Johnson, and, after his death, to the defendant Joe W. Johnson. Her sister of the whole blood intermarried with one J. Dwight Byrd. Mrs. Byrd's interest in the lands was at some time acquired by her sister Ellen. After her mother's death, the plaintiff went back and lived several years at the old place with the defendants, until she married Ellis, now her husband.

On November 5, 1924, after the plaintiff had married and moved to her own home, she executed, at the instance and request of the defendant Joe W. Johnson, as agent for his wife, Ellen Johnson, a deed conveying all her interest in the land to Ellen. On November 24, 1924, she brought this action to set aside and cancel the deed, for partition of the land described therein, and for an accounting for rents and profits.

She alleged the death of her father and the subsequent death of her mother, and that she, the plaintiff, as an heir of her father, took a two twenty-sevenths undivided interest in the said lands, and, as the sole heir of her mother, took a three twenty-sevenths undivided interest therein, making a total five twenty-sevenths interest in fee of which she was seized and possessed as a tenant in common with her half-sister, Ellen Johnson, and that the defendants had received and enjoyed the rents and profits from the said lands for several years. She asked for an accounting for the rents and profits, and, if such accounting could not be had in this case, then for such rental value of the lands as she might be entitled to. She also pleaded that the deed executed by her, of date November 5, 1924, was procured from her by the defendant Joe W. Johnson, acting for his codefendant, Ellen Johnson, by fraud and false representations, and set forth certain alleged facts in support of such allegation.

By their first answer the defendants admitted that the plaintiff was one of the heirs at law of her father, W. G. Johnson, and the sole heir at law of her mother, Polly Johnson, and, as such, had inherited from them a five twenty-sevenths undivided interest in the lands described in the complaint, but set up the deed executed by her in favor of Ellen Johnson as a full defense to her claim; and alleged, further, that the defendant Ellen Johnson was the absolute owner in fee of all the lands described in the complaint. During the trial of the case, the defendants were allowed to amend their answer; and by their amended answer, in addition to the defense already pleaded, they interposed the defense of adverse possession, and set up a claim for betterments.

The case was referred to the judge of probate for Darlington county, acting as master, who found that the alleged fraudulent deed was good and valid as conveying whatever interest the plaintiff had in the land to her half-sister, Ellen Johnson, and accordingly recommended judgment for the defendants.

The matter was heard before his honor, Judge Dennis, on exceptions by the plaintiff to the master's report. Judge Dennis sustained the report in all particulars, holding that the deed which the plaintiff sought to set aside had not been procured from her by fraud, but was good and valid.

From the decree of the circuit judge the plaintiff appeals by numerous exceptions. The main and vital questions raised by the appeal may be thus stated:

(1) Was the deed executed by the plaintiff in favor of Ellen Johnson obtained by false and fraudulent representations?

(2) If so, and the plaintiff is entitled to inherit from her father, W. G. Johnson, would she, under the facts of the case, be entitled also to the interest of her mother, Polly Johnson?

After disposing of these questions, we shall briefly advert to certain other matters contained in the appeal .

1. The first question is raised by the appellant's second and sixteenth exceptions. The second exception imputes error to the circuit judge in not sustaining the plaintiff's exception to the master's report; that the master erred in not holding that the deed in question was without consideration, and fraudulently procured. The sixteenth exception complains of error on the part of the circuit judge in not holding that the master erred in not finding that the evidence supported the plaintiff's allegations of fraud by establishing:

"(a) Secrecy in and about the execution of the deed; (b) concealment as to the character of the instrument; (c) misrepresentation and deceit as to the consideration thereof, the proffered deed to the Hicks land being an afterthought and without any contract status whatever; (d) attempted coercion in having plaintiff accept a worthless piece of land in lieu of a substantial estate; (e) that the plaintiff, throughout the years, both when she lived with the defendants, before and after, was kept in the dark as to valuable property rights; (f) that the defendant Mrs. Ellen Johnson was and is desirous of having the plaintiff enjoy her property rights but she has been prevented from so doing by her codefendant, whose conduct towards the plaintiff was utterly unfair and unscrupulous; and (g) that both the plaintiff and the defendant Mrs. Ellen Johnson have been overreached by the procurement of the defendant Joe W. Johnson, who was and is without any interest whatsoever in the premises." The master in his report, after reviewing and commenting upon some of the testimony in the case, says:

"I find that the deed in question was not procured by fraud, is legally valid, and that the plaintiff has not alleged or proved such an equity as entitles her to the cancellation thereof."

These findings of fact by the Master were concurred in by the circuit judge, and will be sustained by this court, unless it is shown that such findings are against the clear preponderance of the evidence. Miller v. Smith, 103 S.C. 307, 88 S.E. 354; McLure v. Goodwin, 101 S.C. 362, 85 S.E. 900. It becomes necessary, therefore, to examine the testimony in the case pertinent to the issue of fraud.

The record discloses, as has been pointed out, that the appellant, a child of the second wife, was but a few months old when her father died in 1898; that shortly after his death the mother and child went to live with near relatives, and it was there that the appellant lived until she was about grown; that her mother never returned to the old home to live, but that, after the mother's death, the appellant went back and lived for several years with the respondents.

The appellant testified that she had always been told and led to believe by those she had confidence in that she had no interest in her father's estate. The record does not disclose what her mother told her, if anything, about the matter; but she testified positively that the respondents, Johnson and his wife, with whom she lived for a number of years after she reached the age of maturity, told her she had no interest in her father's estate whatever, and that she believed what they said, this being especially true with respect to Johnson himself, whom she says she regarded as a good man; that, being thus led to believe that she had no interest in the property, and having full confidence in the honesty of the respondents, she had no reason to investigate the truth or falsity of the statements made to her by them.

It may be that the respondents at one time honestly believed that Mrs. Ellis had no interest whatever in the land. But in the course of time Joe W. Johnson applied for a loan on the land, and was told by Mr. J. F. Wilmeth, the lawyer handling the transaction, that such loan could not be had because the claim of Mrs. Ellis was a cloud on the title. Johnson then requested Wilmeth to prepare a deed to be signed by Mrs. Ellis to convey her interest in the land to Mrs Ellen Johnson. Wilmeth testified that he advised Johnson to drop the matter of the land, and not to take the question up with Mrs. Ellis or any one else, as it possibly would lead to litigation. There is a slight conflict between Wilmeth's testimony and Johnson's in this connection, but Johnson admitted that, when Wilmeth gave him the deed, he told him that such a deed usually brought on a lawsuit. It is clear that at this point, and by these developments, if not before and otherwise, the respondents were apprised of the fact that Mrs. Ellis had some possible claim or equity in the land. If Johnson had desired to do the right thing and to treat...