Wagener v. Mars

• Decision Date: 04 July 1887
• Citation: 2 S.E. 844,27 S.C. 97
• Parties: WAGENER and another. v. MARS and others.
• Court: South Carolina Supreme Court

2 S.E. 844

27 S.C. 97

WAGENER and another. v. MARS and others.

Supreme Court of South Carolina

July 4, 1887

Appeal from circuit court, Abbeville county.

SIMPSON C.J.

The action below was brought by the plaintiffs, judgment creditors of the defendant Walter W. Mars, to set aside two deeds,--one from the said Walter W. Mars to Thomas W. Mars conveying certain lands, and the other from Thomas W. Mars to the defendant Lucy J. Mars, the wife of the said Walter conveying the same lands. The first deed is dated September 24, 1881, and the second September 4, 1882, and the ground of attack was that they were executed without consideration, and for the purpose of defeating, delaying, and hindering the creditors of the said W. W. Mars, collusive and fraudulent and that the said W. W. Mars had no other visible property within reach of his creditors. The master sustained the allegations of the complaint, finding, as matters of fact, that the conveyance from W. W. Mars to Thomas W. Mars was without a valuable consideration, and was made with a fraudulent intent in both parties to defeat, delay, and hinder creditors, and also the same as to the second deed from Thomas W. to Lucy J., and he adjudged said deeds void. His honor, Judge HUDSON, heard this report upon numerous exceptions, all of which he overruled, and confirmed the report, decreeing that the deeds be delivered up and canceled, and that the lands be sold. He further ordered that it be referred to the master to report a suitable fee to be paid to the plaintiffs' attorneys out of the proceeds of the sale, etc.

Among the exceptions upon appeal here are several alleging error to the circuit judge in sustaining the master in allowing certain incompetent testimony, as alleged, to be introduced before him. See subdivisions from 1 to 6, inclusive, under the first general exception. It does appear in the report of the master that the defendants objected to this testimony when offered, but no exception was carried up to the circuit judge on that account; nor does it appear in the decree that his honor made any special ruling thereon. He overruled the exceptions filed, and confirmed the report. Under these circumstances, we cannot regard the exceptions referred to as before us. Not having been relied upon in the exceptions to the master's report, and therefore no ruling demanded thereon from the circuit judge, they must be considered as abandoned. But, even if they were properly before us, we are satisfied, from the examination which we have necessarily given to the report and decree, that they are untenable.

The important and vital questions in the appeal are questions of fact, to-wit, whether these deeds were without consideration and were executed as alleged, for the purpose of defeating, delaying, and hindering the creditors of W. W. Mars, the defendants all colluding and conspiring to that end. If these facts are affirmed, as found both by the master and the circuit judge, the legal conclusion of invalidity follows beyond doubt. Now, it should be a very clear case, indeed, for this court to overrule the findings of fact below, first reported by the master, and then...