Suber v. Chandler

• Decision Date: 15 February 1883
• Citation: 18 S.C. 526
• Parties: SUBER v. CHANDLER.
• Court: South Carolina Supreme Court

18 S.C. 526

SUBER

v.CHANDLER.

Supreme Court of South Carolina.

Feb. 15th, 1883.

1. A creditor held a sealed note, dated in 1863; in 1869, the debtor made a voluntary deed, to his wife and daughters, of a tract of land. In 1874, action was commenced on the note and judgment obtained in 1879, and a return of nulla bona had the same year; on the next day action was instituted to vacate the deed. Held, that this latter action was not barred by the statute of limitations.

2. The statute of limitations is inert and inoperative until a right of action arises.

3. A voluntary deed, as against an existing creditor of the grantor, is fraudulent, but no right of action exists in favor of such creditor to have the deed vacated, until he has exhausted his legal remedy by obtaining a return of nulla bona on his execution; until then, the statute of limitations does not begin to run in favor of the grantees as against the fraud.

4. This statute runs from the discovery of fraud, only where a right of action also then exists.

5. Delay in suing the note to judgment, short of the time allowed by the statute, does not start the currency of the statute in favor of such a deed.

6. In such cases the Court of Equity will refuse to lend its aid to enable a party to escape from the consequences of a fraudulent act by interposing the bar of the statute of limitations.

7. McGowan v. Hitt, 16 S. C. 602, overruled.

Before PRESSLEY, J., Newberry, February, 1882.

Action by Ivy M. Suber against Dolly L. Chandler, Effa S. Chandler and Fannie T. Chandler. The opinion makes a full statement of the case.Messrs. George S. Mower, Jones & Jones, for appellant.

Messrs. Suber & Caldwell, M. A. Carlisle, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

In September, 1869, Thomas Chandler, now deceased, in consideration of natural love and affection, executed a conveyance to his wife and two daughters, the defendants, of a certain tract of land situate in Newberry county, containing two hundred and sixty acres, reserving a life-estate to himself. The deed was duly recorded September 11th, 1869. At the time of the execution of this deed, Chandler, the grantor, was indebted to appellant by sealed note, which bore date in 1863. In December, 1874, which was five years and three months after the execution and recording of the deed, the appellant brought action upon his note against Chandler, before the termination of which Chandler died, but the action was revived against his representatives, and judgment was obtained on February 13th, 1879, for $1,798.07.

In October, thereafter, the sheriff made return of nulla bona on the execution issued on this judgment, and on the next day, to wit, October 2d, 1879, the present action was commenced to set aside the deed to the defendants as fraudulent. The defendants, with other defenses not involved on this appeal, interposed the statute of limitations. The presiding judge, Judge Pressley, sustained the plea, and on that ground dismissed the complaint, with costs. The question before us is whether this ruling was error, and this is the only question in the case.

It is a general principle that the statute of limitations does not begin to run until the right of action accrues. This has been long since settled, and is well understood, as an established initial principle in connection with this statute. Mr. Angell says, “that the time is to be computed from the time at which the creditor is authorized to bring his suit. If the contract is to pay money at a future period, or upon the happening of a certain event, the statute, it is very clear, is inoperative until the specified period has elapsed, or the particular event has occurred, or, if upon condition, not until the condition has been performed.” Ang. Lim., ch. XVI., p. 46. It is also well understood that there are certain disabilities (savings in the statute) which prevent its operation while they exist, one of these being absence from the State of the defendant when the right of action accrues. And it has been held in several cases in our State, that the statute is not set in motion against fraud until the fraud has been discovered. Eigleberger v. Kibler, 1 Hill Ch. *113;Farr v. Farr, Id. *387; Means v. Feaster, 4 S. C. 249.

All these follow as necessary sequences to the general principle upon which the statute of limitations rests, and which makes it a statute of peace and repose, to wit, unnecessary delay in attempting to enforce a right. Because, when no right of action has accrued, or, if accrued, an insurmountable legal disability stands in the way of asserting it, to permit a party to shield himself by interposing the statute, claiming the benefit of a delay which by no possibility could have been avoided by the plaintiff, would be repugnant to every sense of justice and a reproach to any system of law which claims to be the perfection of reason.

Now, the important questions in this case are, First, When did the right of action accrue? Second, Was the plaintiff, at that time, laboring under any legal disability, and, if so, when was this disability removed? And, finally, was this action commenced within a competent time thereafter? As to the first question, it may be stated as a general proposition, that a right of action accrues the moment a cause of action arises, and not before. Sometimes it may be that this right cannot be exercised at the moment of its accrual, because of some existing disability, applicable either to the plaintiff or the defendant, but, nevertheless, it may exist with its active energy suspended during the pendency of the disability. But the right of action certainly can never accrue before the cause of action arises.

The object and purpose of the present action was to set aside a deed on the ground of fraud upon the appellant. The deed was a voluntary conveyance by the appellant's debtor to the defendants, of a tract of land which, at the date of the deed, belonged to this debtor. It cannot be contended successfully that a voluntary conveyance without consideration, a gift, is necessarily fraudulent, although made by one in debt at the time. To give, it is said upon the highest authority, is praiseworthy; it not only blesses the receiver but the bestower, and there can be no higher enjoyment than the exercise of this right when properly indulged. Generous and benevolent liberality to the objects of one's love and affection, or to promote laudable and praiseworthy purposes, should not only be free from reproach, but be deserving of commendation.

There is, however, a still higher principle than this, a principle of justice, which demands that one shall be just before he is generous; and this principle, while not discouraging or condemning gifts, will not allow them to stand, if by so doing the just rights of others are defeated. Accordingly, in the harmonious application of these principles, it has been held by our courts, that while a voluntary conveyance of property is not of itself fraudulent even by one in debt, yet, if it was intended to hinder, delay and defeat present creditors, or shall ultimately have that effect, it will be held fraudulent and void.

If at the time of its execution the wrong was intended, the fraud is positive and active, and attaches to the act at that moment. If, however, no wrong was then intended, and the conveyance becomes injurious to creditors afterwards, because at some future time the grantor's property has failed to meet the just demands of the creditors, whose claims existed at the time of the deed, then a passive and legal fraud is developed, which, attaching to the deed, renders it void, not from the beginning, but at that moment. This must be so, because until it is legally ascertained that it requires the property embraced in the deed to respond to the demands of creditors, the rights of the grantee are unassailable. Even the deed of one absolutely insolvent would be good, if he should be so fortunate as to accumulate enough afterwards to meet the claims of creditors in time for their executions. Hence, it has been often held that a creditor, before attempting to assail the conveyance of his debtor, must not simply be apparently unable to secure payment otherwise, but must absolutely fail to do so after exhausting all legal effort to that end, by judicially establishing his debt and having a return of nulla bona by the sheriff upon an execution issued thereon.

Now, in such case (which is the case here), the important questions are presented: What is the cause of action, and when does...