Symmes v. Cauble
| Decision Date | 05 April 1910 |
| Parties | SYMMES v. CAUBLE et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; S.W. G Shipp, Judge.
Action by Whitner Symmes against J. O. Cauble and another. From a judgment refusing to appoint a receiver, plaintiff appeals. Affirmed.
J. J McSwain, for appellant. Haynsworth, Patterson & Blythe, for respondents.
The plaintiff, Whitner Symmes, recovered judgment against J. O Cauble on July 27, 1886, for $2,774.62. Suit was instituted on this judgment by leave of the court, and a new judgment entered against Cauble on December 24, 1904, for $4,082.73 the balance due. Thereafter the plaintiff obtained an order in supplementary proceedings under which testimony was taken by the master and reported to the court. On this testimony counsel for plaintiff applied for the appointment of a receiver, contending that there was evidence of the existence of property of the judgment debtor, subject to his debts, in the hands of Mary W. Cauble his wife. The appeal is from a decree of the circuit judge refusing to appoint a receiver.
As the appointment of a receiver was refused on the ground that there was no evidence that the judgment debtor had property in the hands of his wife subject to his debts, it is necessary to make a short statement of the evidence introduced. On December 9, 1885, J. O. Cauble conveyed to his brother, W. H. Cauble, by a deed expressing the consideration of $4,000, his one-fourth interest in the estate of his father H. A. Cauble. On December 1 1891, W. H. Cauble conveyed the same interest in the same property to Mary W. Cauble, the wife of J. O. Cauble, for the consideration expressed of $5 and "the natural love and affection which I have and bear to my brother, J. O. Cauble, and his children," the conveyance being upon the following trusts: "In trust, nevertheless, and to and for the uses, interest and purposes hereinafter limited, described and declared; that is to say: To the use of me, the said William H. Cauble, and to permit me to use all of said property without impeachment of waste, and to rent or lease the same as I may see fit, and collect and enjoy the rents and profits thereof during the term of my natural life; and from and immediately after my death, upon trust to take charge of said property, receive the issues, rents, and profits thereof, and apply the same to the payment of the taxes as they may become due and payable, to the payment of the expenses of keeping said premises in good repair, and to the use of the said J. O. Cauble during the term of his natural life; or until some attempt be made to attach, levy upon or sell the interest of the said J. O. Cauble in the said trust estate, or to have the same assigned, under some proceeding either in law or in equity, and upon said attempt being made for any of the purposes aforesaid, the interest of the said J. O. Cauble shall immediately cease and determine, and shall rest in his child or children of the said J. O. Cauble during the term of his natural life, and at the death of the said J. O. Cauble, or as soon thereafter as it may be practicable, upon trust, to sell said property, or such interest or estate as I may have therein, either at public or private sale, and divide the proceeds of the sale among...
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