Greene v. Mobley

• Decision Date: 14 July 1919
• Docket Number: 10221.
• Citation: 99 S.E. 814,112 S.C. 275
• Parties: GREENE v. MOBLEY et al.
• Court: South Carolina Supreme Court

99 S.E. 814

112 S.C. 275

GREENE v. MOBLEY et al.

No. 10221.

Supreme Court of South Carolina

July 14, 1919

Appeal from Common Pleas Circuit Court of York County; R. W Memminger, Judge.

Action by G. H. Greene against H. G. Mobley and another. Decree for defendants, and plaintiff excepts and appeals. Reversed.

John A Marion, of York, for appellant.

J Harry Foster, of Rock Hill, for respondents.

FRASER J.

The case shows:

"This is an action to set aside a deed as fraudulent under the statute of Elizabeth, and was commenced by service of summons and complaint December 7, 1917. The complaint alleges, in substance, that the defendant H. G. Mobley became indebted to plaintiff, G. H. Greene, on February 5, 1916, in sum of $2,422.87, as evidenced by a promissory note given on that day, due February 5, 1917; that on September 10, 1917 after debt became due and while plaintiff was pushing for payment of the same, H. G. Mobley transferred to his codefendant, Cassie I. Mobley, his wife, a certain lot of land described in the complaint; the said transfer being without consideration and leaving defendant insolvent and being made with intent to hinder, delay, and defraud plaintiff. The consideration recited on the deed was $1 and love and affection.

"Both defendants answered, setting up that the transaction was without fraud and was made for a good and valuable consideration.

"The case was referred, by consent, to C. W. F. Spencer, Esq., as special referee, to pass upon all issues. While the case was pending before the said referee, an order was passed by him allowing the plaintiff to file a supplemental complaint setting up the issuance of execution and nulla bona return on the judgment of plaintiff recited in the original complaint. No appeal was made from said order, and in accordance therewith a supplemental complaint, alleging only the issuance of execution and nulla bona return on judgment recited, was duly served on defendant's attorney. No answer or demurrer was made or served to the said pleading, and in accordance therewith nulla bona return was duly introduced into evidence.

"The referee took testimony and filed his report, in which he found that the transfer in question was made without consideration and was mala fide and should be set aside.

"The defendants duly excepted to the said report, and the case came on to be heard at the December term, court of common pleas, York county. His honor, on December 14, 1918, filed a brief order reversing the referee and holding that the deed was valid.

"Plaintiff duly excepted to his decree, and the case comes to be heard in this court."

The record shows that, although the deed was dated in January, it was not executed until September, and not until after the grantor was informed that the creditor intended to push his claim to judgment. While the answers set up a valuable consideration, the record shows that there was no valuable consideration. If authority is...