"(1) The defendant alleges that on the 11th day of December, 1891, he executed and delivered to Henry J. Moody, the husband of plaintiff, a conveyance of the said described tract of land, and at the same time the defendant and the said Henry J. Moody entered into a solemn covenant, wherein the said Moody assumed and undertook to perform certain trusts and obligations therein minutely and particularly set forth, for their mutual benefit and advantage, and that said conveyance was intended solely to enable the said Moody to execute the trusts and obligations he had assumed, and was wholly without other consideration whatsoever, a copy of which covenant is hereto attached, and made part of this answer. (2) The said Moody, disregarding the terms of his solemn covenant, and intending to mislead, deceive, and defraud this defendant, procured an action to be brought in this court, in which a large number of persons were made parties, this defendant being made a party defendant in said action; andon the petition of the Union Mortgage Banking & Trust Company of London, another defendant therein, the said action was removed from this court into the United States circuit court, and by the contrivance of said Moody, and with his consent, and the consent of other parties to said action, in collusion with him, a decree of said court was obtained, whereby the lands of this defendant embraced in said conveyance were to be sold from time to time, until the said lands conveyed to said Moody were sold and disposed of. (3) That pending the action in said United States court, and before said decree, an order was made by said court dismissing the plaintiff's bill as to this defendant; and in the said action none of the rights of this defendant, legal or equitable, were either considered or adjudicated. (4) That, at the sales from time to time of defendant's lands under the decree of said United States court in said action, this defendant gave notice that he was the owner and in the possession of said lands; and the said Henry J. Moody, the husband and agent of the plaintiff herein, was present when the said described tract of land was sold, and purchased the same in the name of the said plaintiff, and subsequent to said sale, on a rule to obtain possession of said premises, the said United States court refused to require this defendant to surrender the possession of said premises to said plaintiff; all of which facts herein set forth and alleged being well known to plaintiff by and through her said husband and agent. A copy of the order of said court is attached hereto, and made a part of this answer. (5) That said Henry J. Moody has not only failed and refused to fulfill and perform his solemn trusts and obligations set forth in said covenant, but has deceitfully and fraudulently used said covenant and his trusts as instruments of injury and damage to this defendant; subjecting this defendant to onerous litigation and expense, and defeating the scheme of said covenant. Wherefore defendant demands that the complaint herein be dismissed, with costs."
"South Carolina, Barnwell County. Whereas, we, Henry J. Moody and Prank H. Dickinson, both of the county aforesaid, are owners in the fee of the two parcels of land laid off and set apart for the building of the town of Seigling, on the Carolina Midland Railroad, the said H. J. Moody being the owner of all the land lying north of the Orangeburg road, and the said Frank H. Dickinson being ownei of all the land south of said road, to be included in, become part of, said town, making
together ——acres; and whereas, the said
Prank H. Dickinson, in consequence of ill health and other causes, is unable to give such attention to the sale of lots in said proposed town or to adjacent lands, as is desirable and necessary for the progress and advancement of said town; and whereas, there are now two mortgages covering the entire tract of land owned by said Frank H. Dickinson, one to the Union Mortgage Banking &n
Trust Company, for three thousand five hundred dollars, dated May 24th, 1880, and recorded in clerk's office, in Book 5, T, page 284, and the other to W. H. Wroten, agent, for five hundred and thirty-eight dollars, recorded in Book 5, R, page 402, the interest In the former mortgage payable annually being now due, and both principal and interest, in the second mortgage being now due; and whereas, the said Prank H. Dickinson by his deed the 11th day of December A. D. 1891, did convey to me, the said H. J. Moody, in fee simple, the said tract of land, consisting of four hundred and twelve acres, more or less, and being the same land covered by said mortgages, and parties who are anxious to purchase lots in said proposed town have refused to do so, in consequence of said incumbrances, but are willing to purchase and invest, If warranty of their titles are given by me, the said H. J. Moody: Now, therefore, I, Henry J. Moody, in consideration of the premises, and in consideration, also, of the sum of five dollars to me in hand paid by the said Frank H. Dickinson, do hereby covenant and agree, to and with the said Frank H. Dickinson, to sell and convey and make warranty in my own name to all persons purchasing lot or lots from me, or any part of said lands conveyed to me by the said Frank H. Dickinson, in such manner and at such price and on such terms as shall be to the greatest benefit and advantage to the parties hereto, and to the interest and advancement of the proposed town, and, when sales of any portion.of said lands are made, that the proceeds thereof shall be applied to the payment of the interest and principal of the mortgages hereinbefore described; that the said Honry J. Moody shall take receipts for ail amounts paid out, and vouchers, which shall disclose his actings and doings in the premises, and on demand of the said F. H. Dickinson shall exhibit the same, and when said mortgages are paid, or when by mutual consent this agreement shall be revoked and discontinued, I, the said Henry J. Moody, for myself, my heirs, executors, and administrators, agree to convey to the said Frank H. Dickinson, his heirs and assigns, the lands remaining unsold or unbargained for, in fee and absolute; and I, the said Frank H. Dickinson, for myself, my heirs, executors, and administrators, agree that should the said Henry J. Moody have, during the existence of this covenant, paid out, either by way of interest or principal on said mortgages, any sum of money, or bound himself to so pay out any sum, in excess of the proceeds of the sale of any of the lots, or lands included in my deed to him, that, whenever this agreement or covenant shall be revoked or discontinued, the said lands so conveyed by me, P. H. Dickinson, to the said Henry J. Moody, shall stand as security for the excess so paid out, and the said Henry J. Moody shall hold the title to said lands until all legal and proper demands by him shall be fully satisfied and discharged. In witness whereof, we, the said Frank H. DickiLson and the said Henry J. Moody, have affixed our hands and seals this eleventh day of December, A. D. one thousand eight hundred and ninety-one. H. J. Moody. [L. S.] F. H. Dickinson. [L. S.]"
