Richardson v. Day
| Decision Date | 23 February 1884 |
| Citation | 20 S.C. 412 |
| Parties | RICHARDSON v. DAY. |
| Court | South Carolina Supreme Court |
1. Findings of fact by the Circuit judge on written testimony reported to him, approved.
2. Where an intestate's wards, who were also her heirs-at-law, asserted a liability against a surety on the guardianship bond and accepted a settlement from such surety-in action afterwards brought by the surety to subject the lands of the deceased guardian to the repayment of the amounts so paid by him, these wards and heirs-at-law are estopped from objecting that the surety was not liable until after an accounting by the guardian.
3. Where money of wards is used in paying for land previously acquired by the guardian, there is no resulting trust in favor of the wards.
4. Nevertheless, wards may claim the ownership of property paid for by their guardian, out of their estate, if they so elect but having received money in settlement of the debt due by their guardian, they cannot afterwards claim the land also.
5. Tenants in common cannot say that they are not in possession of the land in controversy, and, therefore, demand a dismissal of the complaint as to them, if their co-tenants are in possession.
Before WALLACE, J., Abbeville, February, 1883.
Hon. J B. Kershaw, Circuit judge, sat in the place of Mr. Justice McGowan, who had been of counsel in the cause.
This action was commenced April 18th, 1881. The Circuit decree omitting so much as is repeated in the opinion of this court was as follows:
This cause was heard before me, February Term, 1883, on the pleadings and testimony, without a report by the master on the issues involved, which was not required by the order of reference. ***
The testimony taken by the master has reference principally to the terms of the compromise and settlement between the plaintiff and defendant, S.D. Day, and is directly contradictory. The plaintiff, Richardson, testifies that the first agreement for compromise of his claim against estate of Elizabeth Day was such as stated by defendant, Day, but that Day subsequently refused to abide by this settlement, and the second compromise and settlement was entered into, which is set forth in the receipt of date December 7th, 1880. The testimony of Richardson seems to me to be corroborated by the witnesses, Huff and Wright.
After a careful consideration of the whole evidence in the case, I am satisfied that the parties made the agreement and compromise set forth in the receipt and assignment and that plaintiff did pay to the defendant, Day, the sum of $400 specified in the receipt, in satisfaction of his liability as surety for the deceased guardian, Mrs. Day, and received from him the assignment of his interest, and that he paid to Mrs. Mary Sheppard, late Jackson, the sum specified in the receipt given by her on August 24th, 1880.
It is, therefore, adjudged and decreed that the plaintiff is entitled to the relief prayed in his complaint, and to subject the real estate of Elizabeth Day, deceased, to the payment of the liability incurred by him as surety for said Elizabeth Day. It is further ordered and decreed, that the master of this court do proceed to sell the real estate of the said Elizabeth Day, for the repayment of the sums paid by plaintiff, on her said guardian bonds, with interest from the respective days of payment at public outcry, & c. *** It is further ordered that, if the said S.D. Day, or the heirs of said Elizabeth Day, pay the said claim of the plaintiff, with interest and the costs, the master forbear to make the sale herein above ordered.
Messrs. Perrin & Cothran , for appellant.
There was no liability on the surety until his principal's default had been established. 13 S. C. 580. There is no evidence of default; on the contrary it is shown that the guardian invested the money of her wards in this land. Plaintiff's payments were therefore voluntary, and cannot be recovered-at least in this form of action. By the assignment, plaintiff took only the ward's rights and interest, which were to call on the sureties for the guardian's default when established. Richardson is estopped from denying Day's title. 13 S. C. 370, 375. This land belonged to the wards. Harp. Eq. 239; 2 McCord Ch. 265; Rich. Eq. Cas. 172; 2 Hill Ch. 426; 1 Strobh. Eq. 112; 3 Id. 134. The wards could elect to take the money or the land. 11 Rich. Eq. 408.
Mr. W. H. Parker , contra.
Respondent's only defense was on questions of fact decided against him by the Circuit judge. He cannot now assert other and affirmative defenses. Code , § 171; Pom. Rem. , §§ 617, 690, 701, 706; 4 S. C. 48; 9 Id. 282; 12 Id. 8; 15 Id. 10; 16 Id. 255; Greenl. Evid., Part IV. , § 157. The answer admits title to have been in Mrs. Day; the subsequent application of the ward's money to this land did not create a resulting trust. 19 S. C. 126. But if purchased with their money it only gave the wards a lien on the land, if they so elected. Perry Trusts , §§ 128, 458; 1 Rich. Eq. 448. Having elected to take money, they cannot now claim the land. Big. Estop. 503. There has been accord and satisfaction. 13 S. C. 370. Also an assignment. The possession of S.D. Day was the possession of all the heirs of Mrs. Day until actual ouster.
This action was brought by the plaintiff to subject a tract of land, in the possession of the defendants, to the payment of an alleged debt of their ancestress, Elizabeth Day, deceased. The demand was stated in the complaint to have arisen out of the following facts, in effect: That Elizabeth Day had been the guardian of Mary Jackson, her granddaughter, and S.D. Day, her son, and received their estates; that T. S. Powers, John Day and plaintiff were sureties on the guardianship bond, of whom plaintiff alone survived; that she made no settlement with her wards, and died on or about November 1st, 1874; that in 1879, Mary Sheppard, nee Jackson, one of said wards, came of age and instituted suit against the plaintiff, as surviving obligor on the guardianship bond, to recover the balance of her estate in the hands of her late guardian; that plaintiff effected a settlement with her for the sum of $260, which was paid August 24th, 1880, and a receipt given in full satisfaction of her said claim by the said Mary Sheppard; that S.D. Day was also about to commence suit against the plaintiff for the recovery of the balance due him by his late guardian, when, on December 7th, 1880, a compromise was made between him and the plaintiff for the sum of $400, which was also paid, and a receipt in writing given by S.D. Day to the plaintiff, acknowledging full satisfaction of plaintiff's liability on the guardianship bond, together with an assignment by S.D. Day of all his interest in the bond to the plaintiff. The complaint demanded judgment for the amounts so paid by plaintiff, with interest, and that the land described be subjected to the payment of the same.
B. F. Day and Rebecca Moore answered the complaint, denying that they were in possession of the land, and demanded, for that reason, that the action be dismissed as against them. Mary Sheppard did not answer, and S.D. Day alone resisted the demands of plaintiff. There was no personal property left by Elizabeth Day, and there has been no administration on her estate.
The answer of S.D. Day raised no issues upon any of the matters alleged in the complaint, except that he denied information as to the alleged payment to Mary Sheppard, and set up a defense in regard to the effect of the compromise made between him and the plaintiff, denying the allegations of the complaint in relation thereto. His answer states that the compromise of the indebtedness of the plaintiff was as follows: ...
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