Suber v. Richards

• Decision Date: 20 August 1901
• Parties: SUBER v. RICHARDS.
• Court: South Carolina Supreme Court

39 S.E. 540

61 S.C. 393

SUBER v. RICHARDS.

Supreme Court of South Carolina

August 20, 1901

Appeal from common pleas circuit court of Newberry county; Buchanan Judge.

Action by Leila Suber against J. B. Richards. Judgment for plaintiff. Defendant appeals. Affirmed.

Munro Duncan & Sanders and O. L. Schumpert, for appellant.

Johnstone & Welch, for respondent.

JONES J.

The action herein was upon the following complaint: "(1) That heretofore she sold to John C. Richards, to wit, in January of the year 1878, the interest that she had in the real estate of her late father, Berry Richards, at and for the sum of $750; that thereafter, on the 6th of February, 1878, the said John C. Richards paid her on the said debt the sum of $200. (2) That the defendant, J. Berry Richards, has been duly appointed the administrator of the estate of the said John C. Richards, who since the times herein before mentioned had died intestate. (3) That no part of the balance of $550 left owing her, as above stated, has ever been paid, but is still due and owing to her. (4) That since the times herein before mentioned, and within the last six years, she received from the said John C. Richards letters in which he acknowledged the validity of the debts herein sued on." (Demand for judgment.) This complaint was amended informally on the trial by agreement, so as to specify the mode of sale referred in the first paragraph as follows: "Heretofore sold; that is to say, she did so and so; judgment recovered, and plaintiff was about to move to set aside judgment, and agreement was, if they would refrain from interfering to set aside the judgment, and allow the land to go to sale, and John C. Richards would purchase and pay the plaintiff so much." The answer was a general denial and a plea of the statute of limitations. The jury found a verdict for the plaintiff for $1,339.14, and the defendant now appeals from the judgment thereon.

The first question to be considered is as to the applicability of the statute of frauds, which is raised by exceptions to admission of testimony and exceptions to the charge, the circuit court holding that the statute was not applicable. It appears by the records of the probate court put in evidence that Berry Richards, Sr., died on the 26th day of March 1865, testate, and that his widow, Elizabeth Richards procured letters of administration with the will annexed in November, 1865. By this will the testator devised a tract of land consisting of about 600 acres, one half to his said widow, Elizabeth, and the remaining half to his two daughters, Eliza T., who afterwards married James Lou Henderson, and Leila H., who afterwards married Jacob H. Suber. The will also directed that the estate be kept together until all his debts should be paid, and after that as long as his wife remained unmarried, or until his eldest daughter should marry or arrive at age. In endeavoring to carry out this direction of the will, the administratrix continued to farm the lands, and was assisted therein by John C. Richards, defendant's intestate, who made advances in supplies, etc. But the plan was not successful. The old debts were not paid and new ones were contracted. In April, 1875, John C. Richards, who was the brother of Berry Richards, Sr., commenced proceedings in the probate court for Newberry county to sell said lands in aid of assets, he claiming to be a large creditor of the estate. The testator's daughters, Eliza T. Henderson and Leila H. Suber, resisted said sale, denying the alleged indebtedness, pleading the statute of limitations, demanding a strict accounting by the administratrix, and charging collusion between the administratrix and John C. Richards and another to defraud the children of their rights under the will. On November 11, 1875, an order was made calling in creditors to establish their demands. On the 15th December, 1877, there was a consent order that the land described therein (being the 600-acre tract referred to above) be sold on the first Monday in January, 1878. The sale was made on the day named by the sheriff under said consent order, and John C. Richards became the purchaser at his bid of $2,500, and he received the sheriff's deed therefor and went into possession. At that time the probate court had made no decree establishing claims against the estate, and adjudging as to the necessity to sell the real estate in aid of assets. Such a judgment was not made until February 1, 1879. The sale was made pursuant to agreement of the parties under the following instrument: "State of South Carolina, County of Newberry, Court of Probate. John C. Richards, Individually and as Survivor, etc., plaintiff, against Elizabeth Richards, as administratrix with the Will Annexed, etc., and Others, Defendants. We, the undersigned, Elizabeth Richards, the widow and heretofore administratrix of the will of Berry Richards, deceased, and Eliza T. Henderson and Leila H. Suber, the daughters of the said deceased, and all three defendants in the above-stated action, do hereby consent and request that his honor the judge of probate for the said county shall order the lands described in the complaint in this action, of which the said Berry Richards died seised, to be sold at auction at Newberry Court House, in the said county and state, on the first Monday in January, A. D. 1878, or the first convenient sales day thereafter, on such terms as to the said judge may seem proper,--the proceeds of such sale to be disposed of in such manner as the said court shall hereafter adjudge. And we desire that such said sale shall be made clear of all claim of dower, or the rights of any of us under the will of the said Berry Richards, or under the laws of this state relating to inheritance. Eliza T. Henderson. Leila H. Suber. E. Richards. Witness as to E. T. Henderson and L. H. Suber. Witness as to Elizabeth Richards. Robert Macbeth."

The parol testimony objected to tended to show that previous to said sale the plaintiff agreed that the lands be sold upon John C. Richards agreeing to pay the plaintiff $750 for her interest therein, to be paid when she got ready to go to Texas, which she was then contemplating. Plaintiff moved to Texas on the 7th or 8th of February, 1878, and, the day before going, John C. Richards paid plaintiff $200 of said sum and promised to send balance later. After this, plaintiff introduced in evidence a letter written by John C. Richards to plaintiff in response to a letter by the plaintiff to John C. Richards, which contained much irrelevant matter, and is too long to insert in full. We extract therefrom the following, the letter being dated February 8, 1891: "I did not see much of Lizzie [meaning Elizabeth, the widow of Berry Richards, Sr.]. She took up most of her time in Newberry, consulting a lawyer. I have understood since Berry told me a good deal about her mission to this county. She is certainly a wonderful woman, trying to stir up some more strife about the old place. It has already cost me three times as much as it is worth. *** The very idea of Tudie [meaning Elizabeth T. Henderson, sister of plaintiff to whom, according to the parol testimony, he had also promised to pay $750 for her interest in the land] talking about her interest in the land! She got enough out of me already to pay for the whole land. *** I am not afraid of them ever getting any more out of that old place. If they should go into a lawsuit, the lawyers will gobble it up, what they may get. *** I am glad you had nothing to do with this foolishness of Lizzie. *** You have taken the right view of matters, and you will never lose anything by it. *** I don't remember how much money I gave you when you left. I thought it was $300, but Lizzie said $200 the day I saw her at Maybinton. I am going to pay you the other. Do you remember what was said about this? I remember very distinctly what I said, but Berry tells me his mother has it all changed to suit her. Said I promised to give Tudie land, and ought to have done it, in place of money and helping Jim Pou." We agree with the circuit court that the statute of frauds does not apply. In the first place, the statute of frauds is not available unless specially pleaded, and it was not pleaded in this case. It is true that in the case of Poag v. Sandifer, 5 Rich. Eq. 170, it was held that to a bill to enforce an agreement in relation to land the defendant need not plead the statute of frauds, if he deny the agreement in his answer. That decision, however, was made in 1852, under the former system of pleading. We think it accords better with the Code system that the adverse party and the trial court be advised by the pleadings whether the statute will be interposed as a bar to the action. A parol contract for the sale of land is not void at common law, nor does the statute make such contract void. The protection afforded by the statute is a personal privilege of the parties to the agreement, and may be waived by them. Finley v. Moore, 55 S.C. 198, 33 S.E. 362. It is worthy of note that the cases cited in Poag v. Sandifer, supra, from New York (Cozine v. Graham, 2 Paige, 177; Ontario Bank v. Root, 3 Paige, 478), have been overruled since the adoption of the Code, and that the settled rule in that state is that the statute must be specially pleaded. Crane v. Powell (N. Y. App.) 34 N.E. 913. The case of Groce v. Jenkins, 28 S.C. 172, 5 S.E. 352, does not conflict with this view, for the point there decided was merely that it is not necessary to allege in the...