Shell v. Boyd

• Decision Date: 22 March 1890
• Parties: Shell. v. Boyd et al.
• Court: South Carolina Supreme Court

11 S.E. 205

32 S.C. 359

Shell.

v.Boyd et al.

Supreme Court of South Carolina.

March 22, 1890.

Fraudulent Conveyances—Suit by Administrator D. B. N. to Set Aside—Evidence—Appeal.

1. Suit may he maintained against the personal representative of a judgment debtor to set aside a deed by the debtor as fraudulent, though the judgment lien has been lost by lapse of time.

2. An administrator de bonis non may sue to set aside a deed as fraudulent, and sell the land to satisfy a judgment belonging to his decedent's estate, the legal title of which was in the administrator, and which was unadministered at his death.

8. Code Civil Proc. S. C. § 400, providing that no person who has an interest which may be affected by the event of an action, nor any person who has had such an interest, shall be examined as a witness in regard to transactions between himself and a person since deceased, against a party then prosecuting or defending the action as executor, administrator, heir at law, etc., of such deceased person, when such examination can in any way affect the interest of the witness, or the interest previously owned by him, does not prevent the son and grantee of a deceased debtor from testifying for complainant in a suit by a judgment creditor of his father to set the deed aside as fraudulent.

4. The questions whether the complaint states a cause of action, or whether necessary persons have been made parties, cannot be raised for the first time in the appellate court.

Appeal from common pleas circuit court of Laurens county; Fhaser, Judge.

Code Civil Proc. S. C. § 400, referred to in the opinion, provides that no party to an action or proceeding, "nor any person who has a legal or equitable interest which may be affected by the event of the action or proceeding, nor any person who, previous to such examination, has had such an interest, * * * shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased, * * * as a witness against a party then prosecuting or defending the action as executor, administrator, heir at law, * * * of such deceased person, * * * when such examination ** * can in any manner affect the interest of such witness, or the interest previously owned or represented by him, "etc.

W. H. Martin and F. P. McGowan, for appellants.

Ferguson & Featherstone, for appellee.

McGowan, J. On March 16, 1867, John W. Harrington, as administrator of the estate of James H. Irby, deceased, brought an action, on a bond given to him for a negro slave, at the administrator's sale, against William Boyd, and on May 28, 1875, recovered judgment therein for $1,-535.35. Execution was issued and returned nulla bona in 1879. On June 2, 1871, previous to judgment, the obligor, William Boyd, made a deed of his land (198 1/2 acres) to his two sons, A. M. Boyd and H. W. Boyd, for the consideration expressed of $1,500. On February 11, 1875, still before judgment, the said A. M. Boyd and H W. Boyd, for the same amount expressed for consideration, conveyed the land to their mother, Mrs. Patsy Boyd. Some time after, John W. Harrington died, and the plaintiff, George W. Shell, was appointed administrator de bonis non of the estate of the said James H. Irby. In 1886 it was for the first time communicated to a member of the Irby family that the aforesaid conveyances of the land were all without consideration, and made expressly to defeat the Irby judgment, which was on a security debt for a friend, who had purchased a negro slave. Thereupon the plaintiff, as administrator de bonis non, instituted this action to set aside all of the aforesaid deeds as fraudulent and void, and to sell the land for the payment of the debts of William Boyd, the defendant in execution. The cause was referred to the master, C. D. Barksdale, Esq. H. W. Boyd, one of the defendants, a son of William Boyd, the debtor, was examined as a witness for the plaintiffs, against objection made by counsel of other defendants. The plea of lapse of time was interposed, and the point was also made that John W. Harrington recovered the judgment; and, the legal title being in him, the plaintiff, as administrator de bonis non, could not maintain an action to enforce its payment. The master did not sustain these objections, but proceeded to consider the case, and found that all the conveyances of the land were without consideration, intended to defeat the Irby judgment, and were absolutely void, etc. The case was heard on exceptions to this report by Judge Fraser. who confirmed the report, ordered the...