Strang v. Weir

• Citation: 25 S.E. 157,47 S.C. 307
• Parties: STRANG. v. WEIR et al.
• Decision Date: 22 July 1896
• Court: United States State Supreme Court of South Carolina

47 S.C. 307
25 S.E. 157

STRANG.
v.
WEIR et al.

Supreme Court of South Carolina.

July 22, 1896.

Equity—Practice—Nonsuit—Trusts.

1. In equity, the law as to nonsuits has no application.

2. Where a person authorizes the payment of money due him to a third person, and directs such person, on receipt thereof, to invest it in land for another, without retaining any further control over the money, a complete trust is created, which is irrevocable, even before the money is so invested

Appeal from common pleas circuit court of Fairfield county; Benet, Judge.

Suit by Jesse Beam against Thomas Weir and others. On the death of the plaintiff, the suit was continued in the name of his executor T. E. Strang. There was a judgment for plaintiff, and defendants appeal. Reversed.

The report of the referee, referred to In the opinion, was as follows:

"This cause was referred to me by an order of this court of date the ——day of ——, 1893, for the purpose of having the testimony taken and a report made on all the issues both of law and of fact. By virtue of the said order I held references at my office in Chester. S. C, on the 14th of June, July 6th, July 20th, and September 13th of this year, at which I was attended by the parties and their attorneys. I heard the pleadings, took all the testimony that was offered, which is herewith submitted, heard argument on all the issues, and I would respectfully submit, as my report, the following outlines of the pleadings, the facts that are established by the testimony, and my conclusions of the law of the case, to wit:

"(1) The pleadings:

"(a) The summons and complaint was served on the defendants on August 22, 1892. The complaint, In substance, set forth that one of the defendants, Thomas Weir, while acting as the agent of the plaintiff, received certain moneys, to wit, $476.18, belonging to the plaintiff, and invested It in a tract of land, which is particularly described, taking the conveyance to himself and the other defendants; that he paid more than the said sum for the tract of land, and that, in case the court directed that the land be conveyed to the plaintiff, he (the plaintiff) was unable to pay the difference, and praying that the land be sold, and that out of the proceeds the plaintiff be repaid his money. The defendants demurred to the complaint, alleging that it did not state a cause of action. The demurrer was overruled, and (b) the defendants answered, admitting that the defendant Thomas Weir received the money as stated in the complaint, and that he invested it in the tract of land as stated, but avoided, by alleging that Thomas Weir invested the money in the tract of land by the direction and at the Instance of the plaintiff, taking the conveyance, also, as he directed, and praying that the complaint be dismissed. After the testimony for the plaintiff was In, the defendants moved a nonsuit, which was refused. The plaintiff also asked that he be allowed to amend his complaint by the addition of a paragraph which asserted that the defendants had nothing which could respond to a judgment at law, which amendment was also refused.

"(2) The facts:

"There was considerable testimony taken, amounting to something like 40 pages, but much of it was cumulative, and the real important facts can be put in a small space. The plaintiff, Jesse Beam, is a feeble old man, slow of speech, and whose memory is impaired; but I cannot go as far as the defendant's attorney, and say that he is childish, or that his intellect is impaired, but he is fully competent to attend to ordinary business. Some time in November, 1891, the plaintiff was at the house of his son, Elijah Beam, and the defendant Thomas Weir was also there. While there, these three entered into a verbal agreement for the 'old man, ' the plaintiff, to dispose of his property in the following manner: He was to give to his daughter, Mary Peay, the home place, containing about 112 acres, and she, In return, was to allow him to make that his home, though he reserved the right to stay with either of the others if he desired, and she was to pay him $20 per year. He was then to sell the 97-acre tract, put his rent money with the proceeds, and then buy a place with $500 of the money for his son Elijah, and with the other $500 buy a place for his daughter, the defendant Sarah J. Weir, and they were each to pay him $20 per year, and he was to have the privilege of staying with either of them when he desired. The defendant Thomas Weir told

[25 S.E. 158]

them, at this meeting, that he knew a man that would give $800 for the 97-acre tract. He testified, on the trial, that some time before this meeting his grandfather had told him that he wanted to divide out his property, so as to give each of his children a home, and also get a living for himself, and that he advised his grandfather against it; but I do not think he was sincere-in this advice, as he immediately went to looking out for a purchaser for some of the property, so as to enable him to make the division. Had he been honest in his opposition, he would have told the 'old man' that the only way he could compel his children and grandchildren to treat him properly would be to hold on to his property himself. After the meeting at 'Lige's' house, at which neither Mary Peay nor Sarah Weir were present, Lige decided that, instead of letting his father sell the 97-acre tract of land, and giving him $500 of the money, he would take that tract, and pay his father $300 on it, which sum his father would invest, together with the money he got from his rent, in a place for Sarah. Jesse Beam agreed to this change, and he and Lige and Thomas Weir, the defendant, went to Blackstock, and there he executed and delivered to Elijah a deed for the 97-acre tract of land, which was, as expressed in the deed, upon the consideration of $300. None of the money was paid down, and the understanding was that it would be paid as soon as the rent money was collected, and would be used in purchasing a home for Sarah. On the same day Jesse Beam had a letter written to Sarah, or, rather, to Sarah and her husband, advising them that he had decided to divide out his property, and that they would get $500 to put into the land, and...