Ivy v. Clawson
| Decision Date | 05 November 1880 |
| Docket Number | CASE 935. |
| Citation | 14 S.C. 267 |
| Parties | IVY v. CLAWSON. |
| Court | South Carolina Supreme Court |
1. Testimony taken by plaintiff before the clerk under the act of 1872, (15 Stat. 41,) under an order made at chambers before suit commenced, is inadmissible upon the trial of the cause, although the original defendant, since deceased, had notice of the application for the order, and was present at the examination, and cross-examined the witness.
2. The Circuit judge may decree contrary to the findings of a jury upon an issue of fact submitted to them in a suit in equity.
3. The findings of fact by a Circuit judge, reversing the verdict of a jury on an issue ordered out of chancery, sustained by this court.
Before PRESSLEY, J., York, April, 1879.
This was an action commenced June 21st, 1876, by James M. Ivy against W. I. Clawson, and after the death of defendant in 1877, revived against T. W. Clawson and C. E. Spencer, his executors. The prayer of the complaint was for an injunction to restrain the defendant from selling the property of the plaintiff, (who derived title through Sadler,) under an execution of W. I. Clawson against said Sadler.
The Circuit decree is as follows:
W. I Clawson, having paid a debt as surety of L. P. Sadler entered judgment for it against him on April 4th, 1867. He then owned real estate near Rock Hill, and, wishing to sell it free from encumbrance, he offered to pay Clawson fifty per cent. of said judgment in full satisfaction, which offer Clawson refused. On February 12th, 1869, Sadler sold his land to Kerr & Roach, who next day sold it to plaintiff for full value. He did not know of Clawson's judgment-never heard of it until 1876; but Kerr & Roach knew of it. They agreed with Sadler to settle for it with Clawson out of the price they were to pay Sadler and account to him for the remainder. Whether they ever made such settlement is not proved, and Kerr, who is supposed to have made it, is dead. The only proof of any payment by him to Clawson is a credit on his execution of $303.54, on September 2d, 1870, which refers to a receipt given to Kerr at same time. Clawson's answer states that the full terms of that settlement were inserted in said receipt, but it has not been offered in evidence.
At the time of the alleged settlement the executors of Blair held a large judgment against Sadler, and against Clawson as surety. This judgment was pressed against the latter, and he was compelled to pay it by a decree entered in March, 1876. Just before that decree he commenced to renew his execution against Sadler, and the order for that was entered on April 8th, 1876. Soon after that plaintiff commenced this suit, and his first step was an order, May 17th, 1876, by Judge Mackey at Lancaster, to take the testimony of Sadler, who was then very feeble, and soon after died. Clawson had notice of the application for said order, but did not appear when it was moved for; he, however, cross-examined Sadler when his testimony was taken. It was ruled out as incompetent on the trial in this case, because Clawson had died before, and plaintiff excepted to that ruling.
The complaint in this case alleges that Clawson had agreed with Sadler to receive one-half of said judgment in full satisfaction, which sum he had paid; but Clawson had not satisfied the judgment, and was about to sell plaintiff's land to pay the same.
Defendant denies the alleged compromise; admits one which was to take effect in case he should not be required to pay any part of the Blair debt, and which had failed because he had been required to pay it.
The case was referred by Judge Mackey to a jury, which was to try the issue of fact whether there was an unconditional compromise or only one " upon condition." That issue was tried before Judge Aldrich, and the jury found for the plaintiff; but I see nothing in the testimony to sustain their verdict. There is no proof whatever of any compromise by Clawson, except the admission in his answer; nor is there a particle of proof of any payment on said judgment except his admission and the credit which he entered on his execution. That credit was nearly two years after the alleged compromise and the sale of the land by Sadler, and in February, 1876, he had due notice of the motion to renew the judgment and did not resist it. All these circumstances corroborate Clawson's answer, and would sustain it against pretty strong evidence to contradict it. I, therefore, cannot decree against it upon the mere verdict, which has no evidence to support it.
Plaintiff's prayer for injunction is refused; but Clawson's answer admits that his execution is subject to a deduction for a bill for supplies which Sadler held against him. The amount of that bill is not stated, but, added to the credit of September 2d, 1870, it would have made that payment one-half of the judgment debt. Let it be thus credited of that date, and then the executors of Clawson have leave to proceed on their execution for the remainder.
Plaintiff appealed.
Mr. W. B. Wilson , for appellant.
Mr. J. S. R. Thomson , contra.
This was an action in the nature of a suit in equity to enjoin the sale of a tract of land (which the plaintiff held through L. P. Sadler) under an execution which W. I. Clawson, the testator of defendants, had against the said Sadler. The facts are so clearly stated in the Circuit decree that it will be unnecessary to repeat them here. The plaintiff alleged that the judgment was settled by a compromise to take one-half in full satisfaction between Clawson, the plaintiff, and Sadler, the defendant in execution. The question of the alleged compromise had been referred to a jury under an issue ordered at a previous term of the court, and the jury had found that issue for the plaintiff. This verdict, as well as the whole testimony in the case, was considered by the Circuit judge, who held that there was nothing in the evidence to sustain the verdict, and refused to grant the injunction. The plaintiff appeals to this court on the following exceptions:
" 1. Because the verdict having been rendered before Judge Aldrich, and not set aside, was conclusive of the issue of fact tried, and it is respectfully submitted that Judge Pressley erred in discarding said verdict.
2. Because his Honor erred in excluding, as competent, the testimony of L. P. Sadler.
3. Because the testimony of Sadler having been taken in the judicial proceeding under oath, in writing, and in the presence of W. I. Clawson, who cross-examined him, the testimony so given should not have been excluded on account of the subsequent death of Clawson.
4. Because his Honor having held on the trial that there was sufficient evidence of consideration to support the compromise if the same was made, should have decreed in favor of the plaintiff."
The last exception is founded on a misapprehension of the decree. The Circuit judge held nothing as to the consideration of the alleged compromise. He held that there was no proof of any compromise except the answer of W. I. Clawson, which stated that it was conditional and the condition never performed.
The second and third exceptions relate to the exclusion of the depositions of L....
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