Appeal
from common pleas circuit court of Newberry county; W. H
WALLACE, Judge.
Action
by Ivy M. Suber and Lambert J. Jones, in his own right, and
as surviving partner of the firm of Jones & Jones, against
Dolly L. Chandler and others to set aside a deed from Thomas
Chandler, deceased, to defendants, and to subject the land
thereby conveyed to payment of a judgment recovered against
his estates. Following is the decree rendered by the
Honorable W. H. WALLACE, Judge, to which reference is made in
the opinion: "On hearing the pleadings, evidence, and
argument of counsel herein, it is ordered, adjudged, and
decreed that the land embraced in the deed from Thomas
Chandler to the defendants, dated the 2d day of September
1869, and described in the complaint, is liable for the
payment and satisfaction of the judgment set out in the first
paragraph of the complaint, amounting at this time to the sum
of three thousand two hundred and eighty dollars and ten
cents, debt and interest, and the sum of sixty-eight dollars
and forty cents costs, and that said land be sold by the
master of this county on salesday in January next, or some
convenient salesday thereafter, for one third of the purchase
money in cash and the balance on a credit of twelve months
with interest from the day of sale, to be secured by the bond
of the purchaser and a mortgage of the premises sold, with
leave to the purchaser to anticipate his payment in whole or
in part; purchaser to pay for papers. It is further ordered
that the proceeds of said sale be applied and paid out by the
master as follows: First. To the payment of the
costs and disbursements of the plaintiffs in this court in
this action, including the costs and expenses of said sale.
Second. To the payment of the debt, interest, and
costs due upon the judgment set out in the complaint; said
payments to be made to the plaintiff Lambert J. Jones, as
assignee as aforesaid, to be applied by him in accordance
with the terms of the assignments set out in the complaint
without prejudice to the plaintiff Ivy M. Suber, to require
an account from said assignee for any interest which he may
have therein. Third. That any surplus after the
payments aforesaid to be paid to the defendants. It is
further ordered that the said sale be without prejudice to
any claim which may be hereafter made by the defendant Dolly
L. Chandler for dower in said land. W. H. WALLACE." From
said decree, defendants appeal. Affirmed.
ALDRICH
J.
This is
the third time that this case has been in this court.
"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 11,
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 13, 1879, for
$1,798.07." 18 S.C. 527. "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
2, 1879, the present action was begun 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." 18 S.C. 527. This court reversed
the judgment of the circuit court, and remanded the case for
a new trial. 18 S.C. 534. Upon the second trial, in December,
1885, before Judge WITHERSPOON, "the defendants
interposed a verbal demurrer that the complaint did not state
facts sufficient to constitute a cause of action, and, that
being overruled, the trial progressed. Among other witnesses,
the defendants examined the plaintiff Ivy M. Suber, who, it
seems, is a brother of the defendant Dolly L. Chandler, and
he was allowed to testify that he had once owned the note
upon which the judgment standing in his name had been
recovered, but that, being embarrassed, he had assigned the
note (probably before it was sued to judgment) to Messrs.
Jones & Jones as collateral security for certain demands
which they held against him, as it seems, individually, and
as attorneys for others; that since that time he really did
not own the note; that he had given it up for the benefit of
his creditors, and, "if they could make anything out of
it, all well and good;" that he did not authorize the
suit, but knew that it had been brought, and never before
made any objection to its being in his name. Now, however, he
desired it dismissed." 28 S.C. 384, 6 S.E. Rep. 155.
"Thereupon the attorney for plaintiff moved the court
for leave to amend the complaint by making Lambert J. Jones,
in his own right, and as survivor of Jones & Jones, a party
plaintiff, which was granted," (28 S.C. 384, 6 S.E. Rep.
156;) and the case was continued. Upon appeal to this court
the decision of Judge WITHERSPOON upon the demurrer and the
motion to amend the complaint was affirmed. 28 S.C. 387, 6
S.E. Rep. 158. The third trial upon the amended complaint and
the answers thereto was had before Judge WALLACE, who, upon
November 22, 1890, decided the case in favor of plaintiffs,
and, inter alia, decreed that the land described in
the voluntary deed is "liable for the payment and
satisfaction of the judgment" above referred to, and
accordingly directed a sale of the land. Judge WALLACE'S
decree should be published in the report of this case.
From
this decree defendants appeal upon the grounds:
1.
"That his honor erred in excluding the testimony of Ivy
M. Suber, the plaintiff, and the only plaintiff at that time,
taken before Judge WITHERSPOON, in which he disclaimed all
interest in the cause of action, and authorized its dismissal
at a former trial, on the ground that it was irrelevant to
the issues before the court." The "testimony"
referred to was submitted to Judge WITHERSPOON, and,
commenting thereon, he said: "Here is a party, Ivy M.
Suber, who brought this action, permitted it to be brought in
his name in 1882, and, as far as I know, has up to this time
permitted it to remain. It also appears that he is the
brother of the defendant. Now, to permit a man to come in
here under these circumstances, and repudiate the action, I
don't think is right. And I think it is one of those
cases that invokes the aid of the court, and I will allow the
amendment. *** I have also the information before me now that
this party has made an assignment of this judgment, and that
other parties are interested, and I think it would be wrong,
on his motion, they claiming through him, just to allow him
to get up on the stand and say the case must go out of
court." Instead of putting the case "out of
court," he allowed the amendment. If "the testimony
of Ivy M. Suber, *** in which he disclaimed all interest in
the cause of action, and authorized its dismissal at a former
trial," was tendered for the purpose of procuring a
discontinuance of the action, and that seems to have been the
purpose, then we think that it was properly excluded.
2.
"That his honor erred in ruling out the testimony
showing other valuable considerations than those expressed in
the deed, on the ground that the judgment of Ivy M. Suber
against the executors of Thomas Chandler was conclusive, and
therefore any testimony showing the consideration set forth
in defendant's answer
was not competent." The "case" does not
support this exception. Testimony showing other
considerations than those expressed in the deed was on
several occasions admitted, even against plaintiff's
objections. Dolly L. Chandler, Lambert Chandler, and Ivy M.
Suber all testified as to those "other"
considerations, and Judge WALLACE, in overruling
plaintiffs' objection to their testimony, said, "I
will let this testimony in to see if there is anything in it
to show consideration;" and he even allowed testimony as
to the declarations of Thomas Chandler. The rulings of the
judge, viz., "the judgment is conclusive, the testimony
is not competent," which this exception calls in
question, was upon the admissibility of evidence to show that
Ivy M. Suber was indebted to Mrs. Chandler, and to show an
alleged want of consideration of the note of Chandler to
Suber, and we do not think that the judge erred in excluding
it.
3.
"That his honor erred in ruling that when the personal
estate of the wife of the grantor, Thomas Chandler, was
received by him, it became his immediately, and that a
conveyance by the grantor to the defendant, based upon the
value of the property so received,...
