Temple v. Montgomery, No. 12937.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBLEASE
Citation153 S.E. 640
PartiesTEMPLE et al. v. MONTGOMERY et al.
Docket NumberNo. 12937.
Decision Date10 June 1930

153 S.E. 640

TEMPLE et al.
v.
MONTGOMERY et al.

No. 12937.

Supreme Court of South Carolina.

June 10, 1930


The complaint alleged death of debtor, devise of her property to executrix, the procuring of judgments against executrix as such, all of which were unpaid, an outstanding unpaid real estate mortgage executed by debtor in her lifetime to one defendant, covering real estate subsequently conveyed to executrix, and a demand that securities held by creditors be sold by court and proceeds applied to discharge of debts secured, the execution and delivery to executrix by debtor, only short time prior to her death, of deed to real estate, which deed was not recorded until after debtor's death, that deed mentioned was without consideration and was made for purpose of delaying and hindering plaintiffs therein of their lawful actions, and that personal property belonging to estate was insufficient to discharge debts.

[153 S.E. 641]

Appeal from Common Pleas Circuit Court of Marion County; W. H. Townsend, Judge.

Suit by L. W. Temple and others against Mabel Montgomery, in her own right and as executrix of the will of Annie S. Montgomery, deceased, and others. Decree for plaintiffs, and the named defendant appeals.

Affirmed.

James W. Johnson, of Marion, for appellant.

H. S. McCandlish, M. C. Woods, and W. B. Norton, all of Marion, for respondents.

BLEASE, J.

To avoid some repetition, the issues made by the pleadings in this cause, and the facts developed by the evidence therein, are referred to later, in our consideration of the questions raised by the appeal.

The cause was first heard by Hoyt McMillan, Esq., as special referee, who was directed to take the testimony and report his findings of fact and conclusions of law to the court. The appellant excepted to the report of the referee, and the case was then heard by Hon. W. H. Townsend, circuit judge, presiding in the court of common pleas for Marion county. The circuit judge approved, generally, the findings of fact and legal conclu sions of the referee. From his decree, Miss Montgomery has appealed.

There are thirteen exceptions, and appellant's counsel state that they make nine questions. We think the questions really involved may be reduced to a smaller number; and certainly many of them, in our consideration, may be grouped.

We take up first questions relating to the law of the case. The appellant submits the question: "Was this a creditors' bill to marshal the assets of testatrix, or an action simply to set aside a deed for fraud?" And, in that connection, another question, "Did not plaintiffs have an adequate remedy at law, and should they not have been required to pursue it, instead of resorting to the Court of Equity?"

To answer the questions stated, we now refer to the pleadings. The complaint contained allegations to the following effect: The death of Mrs. Annie S. Montgomery, testate; the devise by her of all her property to the appellant; the qualification of the appellant as executrix of the last will and testament, and her continuance in that office for about eighteen months from the time of her qualification to the commencement of this suit; the procuring of four judgments by the plaintiffs, respectively, and two judgments in favor of certain defendants against the appellant, as executrix, all of which were unpaid; an outstanding unpaid real estate mortgage executed by the deceased in her lifetime to one of the defendants, covering certain real estate then owned by her and later conveyed by her to the appellant; the holding by certain creditors of the estate of the deceased of certain securities for the payment of their respective debts, the value of which was unascertained, and a demand that they be sold by the court and the proceeds of such sales be applied to the discharge of the debts they secured; the execution and delivery to the appellant by the deceased, only a short time prior to her death, of a deed to certain real estate (on which there was an outstanding mortgage as before mentioned), which deed was not recorded, however, until some time after the death of the grantor; that the deed mentioned "was without consideration and was made for the purpose of delaying and hindering the plaintiffs herein of their just and lawful actions, the said deed being null and void, as provided in Section 5218, Volume 3, Code of Laws of South Carolina for 1922"; that the appellant, as executrix, had in hand a small amount of money and a real estate mortgage for about $2,000; and "said amounts and all other personal property belonging to the estate are wholly insufficient to discharge the debts and obligations of the said Annie S. Montgomery, deceased."

[153 S.E. 642]

The plaintiffs prayed: (1) The sale of the securities held by the judgment creditors, and proper credit of the amounts received therefrom on their respective judgments; (2) that the deed mentioned be declared null and void; and (3) that the real estate described in the deed be sold in aid of assets; and for such other relief as appeared to the court to be just.

The defendants Stackhouse and Ellen Bethea, in their answers, set up the judgments alleged to have been obtained in their favor, and joined in the prayer of the complaint. Ellen Bethea alleged that her judgment was prior to all other judgments against the appellant.

The defendant Mrs. Dargan in her answer set up the mortgage debt alleged in the complaint to be due to her. There was no question as to her right to have a foreclosure in her favor.

The appellant admitted the allegations as to formal matters; the obtaining of the judgments; the "holding by some of the judgment creditors of the securities referred to in the complaint, and submitted to the court the question as to what action should be taken in regard to them; the holding by her of a small amount of money and a real estate mortgage for $2,000, belonging to the estate of the testatrix; and the execution and delivery to her of the deed to the real estate and the recording thereof. The appellant alleged further that the assets of the estate of her testatrix were sufficient to pay all the obligations of the estate without resort to the real estate conveyed by the testatrix to her; and that the deed of the testatrix to her was made upon the request and solicitation of the president of the Farmers' & Merchants' Bank, one of the plaintiffs in the action; and that by the conduct of the president, that particular plaintiff was estopped from undertaking to set aside the deed, and if the same should be set aside, that plaintiff should not profit thereby. The appellant denied that the deed of the testatrix, her mother, to herself was without consideration and was made for the purposes alleged in the complaint.

There was no attack upon the complaint by way of demurrer. No challenge of its sufficiency was made by answer. If no objection to a complaint is taken in one of those ways, the defendant is deemed to have waived any objection he may have to that pleading, excepting only the one of the jurisdiction of the court, and the other that the complaint does not state facts sufficient to constitute a cause of action; and five days' notice of the last ground must be given. Section 405, vol. 1, Code. No notice of any objection to the complaint was given. The jurisdiction of the court has not been questioned in any manner. There was no motion on the part of the appellant to make the complaint more definite and certain.

In the absence of any kind of attack upon the complaint, we are to consider the instrument in a favorable light to the plaintiffs. We are to remember in that connection also two well-established rules of pleading. The first is, what is now an elementary proposition, that pleadings are to be liberally construed in favor of the pleader. The other is that in determining the issues made in a cause in equity, the presiding judge is to consider not only the complaint but the answers of defendants—all the pleadings are examined to determine the issues. Mortgage Loan Co. v. Townsend (S. C.) 152 S. E. 878.

While the complaint was not as full and clear as perhaps it should have been, we are inclined to concur in the view of the circuit judge that the action was one in the nature of a creditors' suit to marshal the assets of a deceased debtor and to require the executrix to account for the estate in her hands. And the action may be regarded as one to subject and sell real estate in aid of personalty for the payment of the debts of a decedent, and that action is close akin to a suit to marshal assets of a deceased debtor. In Ragsdale v. Holmes, 1 S. C. 91, it was held that specialty and simple contract creditors of a decedent need not exhaust their remedies at law before exhibiting a creditors' bill in equity against the executor of a decedent for an accounting of assets, payment of debts, etc. And it has been decided that the court, on the petition of a creditor, as well as on the petition of the administrator, may order a sale of land in aid of assets. Scruggs v. Foot, 19 S. C. 274. See also State v. Foot, 27 S. C. 340, 3 S. E. 546, and 24 C. J. 558. In the complaint in the case at bar, it was distinctly alleged that the personal property of the decedent was insufficient to discharge the debts against her estate, so the complaint looked to relief by the way of sale of realty in aid of personalty to pay debts.

The complaint here lacked, it is quite true, some of the matters usually alleged in a complaint in an action by creditors to marshal assets. It was not as full as the complaint in Sheppard v. Green, 48 S. C. 165, 26 S. E. 224, 227, but, as in that case, the main object of the suit was to have the assets of the testatrix marshaled and applied to the payment of her debts. In the Sheppard Case, Chief Justice McIver, speaking of the right of persons with valid claims against the estate of a deceased person, said: "there can be no doubt that they are entitled to the aid of the court in...

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18 practice notes
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...fraud.' Jackson v. Lewis, 34 S.C. 1, 12 S.E. 560, 562; Miller v. Erwin, 129 S.C. 415, 125 S.E. 36; Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640, 641, 647; Izard v. Middleton, Bailey Eq. [228] 236; Jenkins v. Clement, Harp.Eq. [72] 85, 14 Am.Dec. 698; Greene v. Mobley, 112 S.C. 275, 99 S.......
  • First Carolinas Joint Stock Land Bank Of D.C. v. Knotts, No. 14823.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 1939
    ...united in a single suit, the Court will not hesitate to sustain the bill against all of them.'" And see Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640, 12 R.C.L. 469-471, 482, 34 C.J. 527. It was also contended by the defendants in their demurrers that the plaintiff's action is premature, ......
  • Nettles v. Sottile, No. 14465.
    • United States
    • United States State Supreme Court of South Carolina
    • April 14, 1937
    ...participation of the parties is immaterial, if the result of their conduct is a fraud upon others. Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640; Cunnyngham v. Shelby, 136 Tenn. 176, 188 S.W. 1147, 1149, L.R.A.1917B, 572. In effect, the question is squarely presented: Can bank stock be tr......
  • Penning Et At v. Reid, No. 13492.
    • United States
    • United States State Supreme Court of South Carolina
    • October 17, 1932
    ...that first suit, and that it could not have been before the court. Suber v. Chandler, 18 S. C. 526; Temple v. Montgomery, 157 S. C. 85, 153 S. E. 640, 641. Soon after the filing of this order dismissing the first suit and the cause of action for actual or moral fraud therein alleged and set......
  • Request a trial to view additional results
18 cases
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...fraud.' Jackson v. Lewis, 34 S.C. 1, 12 S.E. 560, 562; Miller v. Erwin, 129 S.C. 415, 125 S.E. 36; Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640, 641, 647; Izard v. Middleton, Bailey Eq. [228] 236; Jenkins v. Clement, Harp.Eq. [72] 85, 14 Am.Dec. 698; Greene v. Mobley, 112 S.C. 275, 99 S.......
  • First Carolinas Joint Stock Land Bank Of D.C. v. Knotts, No. 14823.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 1939
    ...united in a single suit, the Court will not hesitate to sustain the bill against all of them.'" And see Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640, 12 R.C.L. 469-471, 482, 34 C.J. 527. It was also contended by the defendants in their demurrers that the plaintiff's action is premature, ......
  • Nettles v. Sottile, No. 14465.
    • United States
    • United States State Supreme Court of South Carolina
    • April 14, 1937
    ...participation of the parties is immaterial, if the result of their conduct is a fraud upon others. Temple v. Montgomery, 157 S.C. 85, 153 S.E. 640; Cunnyngham v. Shelby, 136 Tenn. 176, 188 S.W. 1147, 1149, L.R.A.1917B, 572. In effect, the question is squarely presented: Can bank stock be tr......
  • Penning Et At v. Reid, No. 13492.
    • United States
    • United States State Supreme Court of South Carolina
    • October 17, 1932
    ...that first suit, and that it could not have been before the court. Suber v. Chandler, 18 S. C. 526; Temple v. Montgomery, 157 S. C. 85, 153 S. E. 640, 641. Soon after the filing of this order dismissing the first suit and the cause of action for actual or moral fraud therein alleged and set......
  • Request a trial to view additional results

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