Simon v. Sabb

• Decision Date: 02 August 1899
• Citation: 33 S.E. 799,56 S.C. 38
• Parties: SIMON. v. SABB et al.
• Court: South Carolina Supreme Court

33 S.E. 799

56 S.C. 38

SIMON.

v.SABB et al.

Supreme Court of South Carolina.

Aug. 2, 1899.

FRAUDULENT CONVEYANCES — PARTIES — MORTGAGE FORECLOSURE—ADMINISTRATOR OF MORTGAGOR — MARRIED WOMEN — CONTRACT—PLEADING—APPEAL.

1. In an action to set aside a deed, and subject land to the lien of a mortgage, it was alleged that, while one who was entitled to a deed from the holder of the legal title was negotiating for a loan, she, after the consummation of the deal, but before the delivery of the mortgage, caused the holder of the legal title to convey to her daughters instead of to her, and that such conveyance was without consideration, and fraudulent. Held, that the administrator of one of the deceased daughters is not a necessary party when all her heirs are joined as defendants.

2. Under Act 1894 (21 St. at Large, 816), which provides that from and after its passage no sale under or by virtue of any mortgage shall be valid to pass the title of the land mortgaged unless the debt for which the mortgage was given shall be first established by the judgment of some court of competent jurisdiction, the administrator of a deceased mortgagor, though the mortgage was executed before the passage of the act, is a necessary party to the foreclosure of the mortgage.

3. In an action on a contract made with a married woman at a time when she could bind herself only on contracts for the benefit of her separate estate, a complaint which shows that she was a married woman, but does not allege that the contract sued on was for the benefit of her separate estate, is demurrable.

4. A mortgage signed by a married woman, which recites that it is given to secure advances of supplies for agricultural purposes to be made to two others, who also execute the mortgage, to be used in cultivating land belonging in part to the married woman, is not a contract for the benefit of her separate estate.

5. A complaint is not subject to a demurrer if it contains allegations entitling the plaintiff to relief at law or in equity.

6. In an action to set aside a deed as fraudulent, and to subject land to a mortgage, where it is alleged that one who was entitled to the legal title of the land just before the execution by her of a mortgage on the same to secure advances fraudulently procured the legal title to be conveyed to her daughters, the plaintiff, being the assignee of such mortgage, need not allege that he was an innocent purchaser for value, without notice.

7. On appeal the supreme court will not consider statements set out in the exceptions, but which are not elsewhere incorporated in the record.

8. In an action to foreclose a mortgage it is error to adjudge that defendants, who are not bound by the debt secured by the mortgage, shall pay any deficiency after a sale of the mortgaged premises.

Appeal from common pleas circuit court of Barnwell county; James Aldrich, Judge.

Bill by Joseph A. Simon against Lucretia Sabb and others. From a decree in favor of plaintiff, defendants appealed. Reversed.

The following is the complaint:

"The plaintiff, by this complaint herein, respectfully shows:

"(1) That one John J. Cater, of the county and state aforesaid, departed this life on or about the —— day of ——, 18—, leaving a considerable estate in land, which was subsequently divided among his children, and the tract hereinafter mentioned was part and parcel of the share allotted to his daughter Susan E. Creech in said division, and there after the said Susan E. Creech conveyed the same to one Caroline Williams, by her deed of date 28th day of November, 1879, and the said Caroline Williams entered upon the possession thereof, where she remained until the date of her death, which occurred about the year 1889.

"(2) That during the year 1882 the entire real estate which was of the said John J. Cater was levied upon under judgment against his legal representatives for a debt contracted by the said John J. Cater in his lifetime, and sold by the sheriff of Barnwell county, and was purchased by the defendant Peyton M. Cater, who took the sheriff's title to the same.

"(3) That the said Peyton M. Cater bid off the said land in behalf of, and under a parol agreement with, all the children of the said John J. Cater, each child, including the said Peyton M. Cater, assuming his or her share of the purchase money of the land, each party, by the terms of the said agreement, to receive a conveyance from the said Peyton M. Cater of tbat portion of the land previously allotted to him or her in the division aforesaid, upon the payment to the said Peyton M. Cater of his or her proportion of the purchase money aforesaid; and the said Susan E. Creech fully complied with the conditions aforesaid, and was entitled to receive from the said Peyton M. Cater a conveyance of her share of the land; and, in order to perfect the title of said Caroline Williams, requested and directed the said Peyton M. Cater to convey to her the tract of land previously sold to her by the said Susan E. Creech, as hereinbefore stated.

"(4) That on the 1st day of March, 1893 [clerical error in original; should be 1883], the said Caroline Williams, desiring to obtain advances for agricultural purposes from one Nathan Simon, offered to secure the same by a mortgage upon her land (the same tract of land hereinbefore referred to), and pursuant to said agreement prepared her note in writing for the sum of two hundred and fifty dollars (which is hereto annexed, as a part of the complaint), and a mortgage of the land hereinafter described, to secure the said note; which note and mortgage, however, were not executed until the 6th day of the said month. A copy of the said note is as follows:

" '$250.00. Allendale, S. C, March 6, 1883. On the fifteenth day of October next I promise to pay to the order of Nathan Simon, at Allendale, S. C, two hundred and fifty dollars, with' interest at seven per cent., and commissions on advances at five per cent. Witness my hand and seal.

'"[Sig.] Caroline, Williams. [L. S.]

" 'Witness: B. B. Sanders.'

"(5) That the defendant Caroline Williams, on the 6th day of March, 1883, to secure the payment of the said note, executed and delivered to Nathan Simon her deed, and thereby conveyed by way of mortgage to Nathan Simon, his heirs and assigns, the following lands and tenements situated in the said county: 'All that tract or parcel of land lying and being in the state and county aforesaid, containing fifty acres, being a part of lands of the estate of John J. Cater, deceased, inherited by Susan E. Creech, bounded north by lands of N. M. Walker, south by lands of Susan E. Creech, west by lands of J. W. Knepton, and surveyed by T. B. Colding, August 28th, 1874.'

"(6) That on 22d day of March, 1883, the said mortgage was delivered to the register of mesne conveyance of the said county, and was by him recorded Vol. 4 T, pages 511 to 513.

"(7) That thereafter, to wit, on the 18th day of April, 1883, the said Nathan Simon duly assigned the said note and mortgage to the plaintiff.

"(8) That on the 5th day of March, 1883, during the interval of time between her application for credit and the execution of the said note and mortgage, the said Caroline Williams and her husband, one Solomon Williams, the latter acting for and in behalf of the said Caroline Williams, and aiding and counseling her herein, in collusion with Julia Jones, defendant, and Rebecca Williams, since deceased, intending to cheat and defraud the said Nathan Simon, and to defeat the mortgage which the said Caroline Williams was about to execute to the said Nathan Simon for advances as aforesaid, procured the said Peyton M. Cater to make the title to the said tract of land to her daughter, the defendant Julia Jones, and their daughter Rebecca Williams, a minor, who has since died intestate, and without issue, leaving as her heirs at law all the defendants herein except defendant Peyton M. Cater.

"(9) That the said Peyton M. Cater had no knowledge of the intended fraud, but acted in good faith, as he supposed, in carrying out the instructions of the said Susan E. Creech, but that the said sale was without consideration, fraudulent, and void as to the right of the plaintiff.

"(10) That the knowledge of the fraud came to the plaintiff, or his assignor, Nathan Simon, within 6 years next preceding the commencement of this action.

"(11) That thereafter, to wit, in the year 1889, the said Caroline Williams, who had never parted with the possession of said premises, died intestate, leaving her husband, the said Solomon, and her children, the defendants, Lucretia Sabb, Grace Morgan, alias Grace Mixson, Julia Jones, and Hannah Mixson, her distributees and heirs at law. And the said Solomon Williams died soon thereafter, leaving as his heirs and distributees his children, the said defendants.

"(12) That the condition of the said note and mortgage has been broken, and there is due and remaining unpaid upon the said note and mortgage the sum of two hundred and fifty dollars, with interest from the 6th day of March, 1883.

"Wherefore the plaintiff prays that the deed of conveyance from the said Peyton M. Cater to the said Julia Jones and Rebecca Williams be set aside; that the mortgage be foreclosed, and the premises ordered to be sold, and the proceeds applied to the payment of the said debt."

R. A. Ellis and B. T. Rice, for appellants.

I. L. Tobin, for respondent

GARY, A. J. As some of the exceptions raise the...