Marion v. Weston

• Decision Date: 29 October 1923
• Docket Number: 11312.
• Parties: MARION v. WESTON ET AL. MOORE v. ARTHUR ET AL.
• Court: South Carolina Supreme Court

119 S.E. 582

126 S.C. 65

MARION v. WESTON ET AL.

MOORE v. ARTHUR ET AL.

No. 11312.

Supreme Court of South Carolina

October 29, 1923

Appeal from Common Pleas Circuit Court of Richland County; T. J Mauldin, Judge.

Action by W. B. Marion, receiver (appointed in supplemental proceedings in the case of M. De Veaux Moore against W. W Arthur and another) against F. H. Weston and others. From a judgment unfavorable to the receiver, he appeals. Reversed.

The report of J. C. Townsend, master for Richland county follows:

To the Presiding Judge of the Court of Common Pleas for Richland County:

This cause was referred to me by order of his honor, I. W. Bowman presiding judge, October, 1921, for the purpose of taking the testimony upon all the issues raised herein, and make a report thereof, together with my findings and conclusions upon the issues of law and fact.

Pursuant to this order of reference I have taken the testimony attended by the parties themselves or by counsel for the same, which is submitted with this report.

This is an action commenced by W. B. Marion, who was appointed receiver for that purpose by order of Judge W. H. Townsend, dated August 24, 1921, upon hearing and proceedings had in supplemental proceedings in the case of M. De Veaux Moore v. W. W. Arthur and Anne Moore Arthur, for the purpose of collecting a judgment and execution in said cause against the said W. W. Arthur and Anne Moore Arthur.

The real controversy and issue in this matter is as to the right of W. B. Marion, receiver, for and in behalf of the judgment creditor, M. De Veaux Moore, to have the proceeds of certain insurance policies, which policies were assigned by W. W. Arthur and Anne Moore Arthur to Francis H. Weston, one of the defendants, who was at the time of the assignment, and still is, one of the attorneys for the said Arthurs; and also the right of the same receiver to have, in behalf of the plaintiff, certain cotton, either nine or ten bales, certificates or warehouse receipts for five bales of which were delivered by the defendant, W. W. Arthur, to said F. H. Weston, in December, 1921, and the warehouse receipts for the balance of which were delivered by said Arthurs to W. T. Aycock, in January and February, 1921.

From the evidence presented before me, I make the following:

Findings and Conclusions of Facts.

1. That the defendants, W. W. Arthur and his wife, Anne Moore Arthur, procured and obtained from M. De Veaux Moore, father of Mrs. Arthur, in 1915 and 1916, a conveyance to Mrs. Arthur of a tract of land containing some 387 acres, situated at Cane Savannah, Sumter county, being all the land owned by said Moore, and also an assignment by said Moore to Mrs. Arthur, of a valuable bond and mortgage for the sum of $20,000, and also the transfer and assignment by said Moore to Mrs. Arthur of all his furniture and silverware; the said conveyance, assignments, and transfers covering and embracing all of the property owned by the said Moore at that time.

These assignments were procured by Mr. and Mrs. Arthur from the said Moore, a man of less than normal intellect and capacity, while he lived with them, and while they stood in a close confidential, family, and business relation, to said Moore, under and upon whose advice he relied and trusted. And in an action subsequently commenced by Mr. Moore against Mr. and Mrs. Arthur, for that purpose, all these conveyances, assignments, and transfers were set aside and canceled as fraudulent, null, and void, by a decree rendered in the court of common pleas for Sumter county by I. W. Bowman circuit judge, which decree bears date January 3, 1921.

The said decree, in addition to setting aside and canceling the conveyance (Mr. and Mrs. Arthur having sold and disposed of the bond and mortgage) gave judgment against them for the moneys used by them for their own purposes, and also for the rents and profits of the land during the time they had held and used the same, including rents for 1916, 1917, and 1918, and also gave judgment for the rental value of the lands for the years 1919 and 1920, at the rate of $1,200 for each of said years.

2. Upon this decree judgment was duly entered in Sumter county, transcripted to and docketed in Richland county. The judgment amounting to $24,512.83. And the same appears as judgment roll No. 13851, of Richland county.

3. Upon this judgment execution was duly issued to the sheriff of Richland county on January 21, 1921, against Wm. W. Arthur and Anne Moore Arthur. And the original execution, which is an exhibit in this case, is marked lodged in the sheriff's office January 22, 1921, and the following entry in pencil appears on the back of the execution: "1/22/21. No property other than homestead (signed by) W. W. Arthur." And the execution is marked returned to clerk nulla bona, T. A. Heise, S. R. C., January 22, 1921. On the 24th day of January, 1922, upon affidavit of counsel of M. De Veaux Moore, an order was made by W. H. Townsend, judge of the Fifth circuit, requiring W. W. Arthur and Anne Moore Arthur, defendants in said judgment to appear before him at his chambers, on the 29th day of January, A. D. 1921, at 11 o'clock a. m., for examination in supplemental proceedings, and also providing "and in the meantime, and until the further orders of this court you are restrained and enjoined from disposing of any property or rights which you have or own."

4. This affidavit and order appear to have been lodged in the sheriff's office on the 24th day of January, 1921, and the affidavit of the deputy sheriff, A. C. Palmer, appearing on the back thereof, and taken before W. H. Thompson, notary public, on the 25th day of January, 1921, states that it was personally served on Wm. W. Arthur and Anne Moore Arthur on the 24th day of January, 1921.

5. It is contended in behalf of the defendants herein that this record as to the date of service is erroneous, and that they sought to show by an affidavit of A. C. Palmer and by his deposition, taken at his home, because he was and is quite sick, and by the statement from the Weather Bureau as to the condition of the weather on Tuesday, the 25th day of January, 1921, that it was not served until Tuesday, the 25th, and after the time of the assignment hereinafter mentioned and referred to. This testimony of Mr. Palmer is exceedingly vague, doubtful, and uncertain. He seems to state that he served it only on Mr. Arthur at the time he served in the morning, and that he served on Mrs. Arthur a day or more previous thereto. Considering the length of time which has elapsed, and the evident uncertainty of the witness in his recent testimony, I am satisfied that the record, as made at the time, is the best evidence, and I find that this affidavit and order were served on the defendants, W. W. Arthur and Anne Moore Arthur, on the 24th day of January, 1921.

6. Pursuant to this order of Judge Townsend, the defendants, W. W. Arthur, and Anne Moore Arthur, were required to and did appear before Judge Townsend in supplemental proceedings, and he took quite a quantity of testimony from them and their witnesses, including Mr. F. H. Weston and Mr. W. T. Aycock, which testimony, by consent, has been offered and received in evidence in this case, and is submitted with this report.

During the supplemental proceedings a stipulation was entered into by Mr. M. De Veaux Moore, W. W. Arthur, Anne Moore Arthur, Weston & Aycock, and H. N. Edmunds, attorneys for defendants, Purdy & Bland, and D. W.

Robinson, attorneys for plaintiffs in said cause, providing that the insurance moneys should be collected and held by R. O. Purdy and W. T. Aycock, and that the cotton or its proceeds, if sold, and that the same might be sold at such time as might be agreed by said Aycock and said Purdy, should be held by the said Aycock and the said Purdy, in their joint names, and "that the ultimate disposition of the collections from said insurance policies, and of the proceeds from said cotton shall hereafter be determined by the Honorable W. H. Townsend, Circuit Judge, in this case (M. De Veaux Moore v. W. W. Arthur and Anne Moore Arthur), upon application or motion of either party hereto upon notice to the other."

Subsequent to this stipulation, on August 24, 1921, Judge Townsend, a motion and application having been made by attorneys for the plaintiff, for directions as to the disposition of the insurance moneys and cotton, appointed W. B. Marion receiver of the property of W. W. Arthur and Anne Moore Arthur, especially for the purpose of bringing this action, and to determine the disposition and application of the insurance money, and of the said cotton. This order of Judge Townsend is dated August 24, 1921, and the same, together with the stipulation, is appended hereto as part of the record. The statement filed by Mr. Aycock for himself and Mr. Purdy, which is attached to the exhibits herein, shows total amount of insurance collected $2,640.27, and that there was paid out of this attorney's fees to Mr. Aycock and Mr. Purdy for services in collecting $250, expenses of Weston & Aycock, $10, and reimbursement to D. W. Robinson for having advanced the premiums which were unpaid for this insurance, $157.24, leaving the net amount of insurance money in the hands of Purdy and Aycock $2,223.03.

7. The decree of Judge Bowman, setting aside, annulling and canceling the deed of conveyance (as well as the assignment of the bond and mortgage, and transfer of the furniture and silver) upon the ground that the same was fraudulent, null and void, was rendered on January 3, 1921, and the defendant W. W. Arthur, who acted for himself and also for his wife and codefendant, Anne Moore Arthur, admits that he had notice and knowledge thereof the next day...