Patterson v. Rabb
| Decision Date | 13 April 1893 |
| Citation | 17 S.E. 463,38 S.C. 138 |
| Parties | PATTERSON v. RABB et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Fairfield county; T. B Fraser, Judge.
Action by M. Virginia Patterson, as trustee, against Cassandra H Rabb and others. From a decree for plaintiff, defendants appeal. Reversed.
Ragsdale & Ragsdale, for appellants.
A. S. & W. D. Douglass, for respondent.
Mary Regina Holley, by her deed dated the 18th day of December 1867, conveyed a tract of land containing 412 acres, situated in Fairfield county, in this state, to Thomas W. Rabb, in trust for his wife, Cassandra, during her life, and at her death to be delivered to such issue as the said Cassandra may have living at her death, to be held by such issue absolutely, and discharged from all further trust. Under such deed said lands were taken possession of by such trustee. The deed was duly recorded, and contained a power to the trustee to make any changes of investment of such trust estate as he may think proper, after the written consent therefor of the said Cassandra; such changes of investment to be subject to the same trusts as original tract of land conveyed. On the 20th day of February, 1877, the said Thomas W. Rabb, as trustee, with the written consent therefor of the said Cassandra, conveyed the tract of land in question, for $1,600, paid, and secured to be paid, as the consideration unto David R. Flenniken in fee simple; alleging in said deed that the same was made in pursuance of the power in the deed made by Mrs. Holley. This deed and the written consent of Cassandra, the wife of the trustee, Rabb, were duly recorded, and the said David R. Flenniken went into possession of said lands. On the 27th day of December, 1879, David R. Flenniken, by his deed therefor, conveyed said lands to Wade Pickett in fee simple for $2,500. This sum of $2,500 was secured to be paid by Wade Pickett by his bond payable to Flenniken in the penal sum of 5,000, conditioned to pay the said $2,500 in five equal installments, and a mortgage of the premises. Both the deed and the mortgage were duly recorded. On the 1st January, 1880, this bond and mortgage, for value, were assigned to Giles J. Patterson. On the 4th day of February, 1881, Wade Pickett, conceiving his inability to pay his bond for the purchase money, reconveyed, by his deed therefor, the tract of land to David R. Flenniken in fee simple. On the 23d day of July, 1884, Cassandra H. Rabb, as plaintiff, exhibited her complaint in the court of common pleas for Fairfield county against David R. Flenniken and Thomas W. Rabb, as trustee, as defendants, to set aside the deed made by Thomas W. Rabb, as trustee, to David R. Flenniken on the 20th February, 1877, on the ground that her trustee had thereby and therein been guilty of a breach of trust with a fraudulent intent, participated in, if not contrived by, the said David R. Flenniken. A notice of lis pendens was duly filed in the office of the clerk of circuit court for Fairfield county on the 20th day of July, 1884. On the 5th day of December, 1885, the said David R. Flenniken, in view of his insolvency, by deed conveyed his whole estate, including expressly this tract of land, to James A. Brice, for the benefit of his creditors. On the 27th January, 1887, Giles J. Patterson, as plaintiff, began his action to foreclose the mortgage assigned to him by Flenniken, against James A. Brice, as assignee of the estate of David R. Flenniken, as defendant, on which judgment of foreclosure was rendered on the 13th June, 1887, and lands ordered sold on the first Monday in October, 1887, and at such sale on that date were bought by the plaintiff, Giles J. Patterson, for the sum of $550. At this sale, notice was given publicly that Mrs. Cassandra Rabb owned the land. Deed was made by clerk of court to Patterson, and he went into possession of the land immediately thereafter. On 20th day of February, 1890, the judgment of the supreme court was handed down in the action of Cassandra Rabb against David R. Flenniken and Thomas W. Rabb, trustee, whereby it was held that the sale by Rabb, as trustee, to Flenniken was unauthorized, being in breach of duty, and that Flenniken should hold the said lands as a trustee, subject to all the trusts and limitations of the deed from Mary Regina Holley to Thomas W. Rabb, trustee, until such time as the court should thereafter appoint a person trustee for Mrs. Rabb and her children, and that, when such new trustee was appointed, Flenniken should convey said lands to the newly-appointed trustee under the order of court therefor. See 29 S.C. 278, 7 S.E. Rep. 597; 32 S.C. 194, 10 S.E. Rep. 943. On the 26th day of March, 1890, by the decretal order of Judge Norton, Edwin J. Rabb was appointed the new trustee in lieu of Thomas J. Rabb, and David R. Flenniken was ordered to convey by deed the said lands to such new trustee, upon the same trusts and limitations that are set up in the original deed of trust from Mrs. Holley; and that, when the deed was executed, the sheriff of Fairfield county should put the said Edwin J. Rabb, or his authorized agent, in possession of said lands against the said Flenniken, "or any one else who may have come into possession of the same" since the 20th July, 1884, when the lis pendens was filed. David R. Flenniken made the deed referred to on 1st April, 1890, and on 12th July, 1890, the sheriff of Fairfield county, R. Y. Milling, was called upon to execute the order of Judge Norton. His deputy had left his office for this purpose, and had ejected Giles J. Patterson, through his tenant then in possession, before such deputy knew that this present action was begun. The present conflict was thus begun, and, as must be apparent, is one of interest.
On 12th July, 1890, Giles J. Patterson, as plaintiff, against the defendants, (who are here as appellants,) in his complaint sets out such of the foregoing facts as he conceived sustained his right to procure a judgment restraining any and all persons who claim through, or act for, Cassandra H. and Edwin J. Rabb, as trustee, from any interference with his possession of the tract of land in question. Such plaintiff claims that, when he received the bond and mortgage executed by Wade Pickett to David R. Flenniken, he paid the full marketable value therefor, without any notice whatever of any adverse claims thereto by any one else; that he caused the offices at Winnsboro to be searched by an attorney, and was assured by such attorney that Flenniken's title and Pickett's title to the land were good: that he is, and was from the 1st January, 1880, entitled to the protection of a purchaser for valuable consideration without notice, as the assignee of the aforesaid mortgage; that he was not a party to the suit of Cassandra Rabb against Flenniken, and had no information or notice of any claims set up by her in her said suit until after the assignment of Flenniken, in December, 1885; that in October, 1887, when he purchased said lands at foreclosure sale, he was notified of Mrs. Rabb's rights therein. On the same day--12th July, 1890--Judge Witherspoon granted an order of restraint against any of the parties interfering with Giles J. Patterson's possession of the land, until the case should be heard upon the merits. The answer of the defendants denies that Patterson is entitled to be considered as holding the bond and mortgage of Pickett by assignment of Flenniken as the assignee, by purchase thereof for full value without notice; and that the doctrine in equity of innocent purchaser for a valuable consideration without notice cannot be maintained by the said Patterson, because he is merely the holder of a chose in action which, under the laws of this state, is unnegotiable, being under seal, and therefore his rights under his holding are only such as his assignor, Flenniken, held; and that Flenniken, as the obligee in the bond of Pickett to him, held said bond in fraud of the trust estate created by the deed of Mrs. Holley in 1867, of which he had full notice. Besides this, the defendants claim that Patterson ought not to be considered as having the right to maintain his present suit, because of the lis pendens filed on the 20th July, 1884, as required by law.
The testimony was taken by Mr. McCants as special master. In addition to the records and deeds herein before indicated, it was established by the testimony of Flenniken himself that when, in 1877, he received the deed for this land from Thomas W Rabb, as trustee, the $1,600 purchase money was paid by him in Rabb's individual debt by note of $425, and the balance was paid in supplies and cash furnished by Flenniken to Rabb. The cause was heard by Judge Fraser, and by his decree he sustained the equity of Patterson to have the mortgage of which he was the assignee considered as held by him as a purchaser for a valuable consideration without notice, and superior to the equities of the trust estate. Giles J. Patterson having died pending the hearing before Judge Fraser, by consent an order was made on 7th January, 1892, substituting his widow, Mrs. M. Virginia Patterson, as trustee for herself and children, as plaintiff. The defendants appeal from the order of Judge Witherspoon of 12th July, 1890, and from the decree of Judge Fraser. As these two sets of exceptions will be set out in the report of the case, we will not reproduce them here. [1]
We will consider the exceptions to Judge Witherspoon's order. These exceptions three in number, cannot be sustained. Under the view we take of this case, Giles J. Patterson being in possession of the lands in question, and deriving his right to such possession under an instrument executed prior to the suit of Mrs. Cassandra H. Rabb, to which suit he was not a party,...
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