Wagner v. Sanders

• Citation: 39 S.E. 950,62 S.C. 73
• Parties: WAGNER et al. v. SANDERS et al.
• Decision Date: 30 October 1901
• Court: United States State Supreme Court of South Carolina

39 S.E. 950

62 S.C. 73

WAGNER et al. v. SANDERS et al.

Supreme Court of South Carolina

October 30, 1901

Appeal from common pleas circuit court of Charleston county; Gary Judge.

Action by Julia E. S. Wagner and others against Joshua C. Sanders and others. From a decree dismissing the complaint plaintiff's appeal. Affirmed.

J. K P. Bryan, for appellants.

Theodore G. Barker, for respondent Sanders.

GARY A. J.

This action was commenced in April, 1895, by the plaintiff Julia E. S. Wagner, administratrix of the estate of Dr. Levi P Wagner, deceased, and in her own right as distributee and heir at law of said Levi P. Wagner, and her children, as such distributees and heirs at law, against Joshua C. Sanders, H. G. Leland, and J. B. Morrison, defendants.

The complaint, omitting the formal portions thereof, alleges: "(1) That on the 19th day of December, 1868, defendants Joshua C. Sanders and Levi P. Wagner, now deceased, as copartners in planting interest, purchased a certain plantation in Charleston county, described in the complaint, formerly known as 'Doe Hall,' and now styled 'Bay View,' together with tools, implements, and other personal property. (2) That the purchase money of said plantation was paid by the said Levi P. Wagner, and the deed therefore taken in the name of Joshua C. Sanders, for the purpose of such partnership (same being in equal shares and interest among said copartners), which deed was dated 19th December, 1868, and that such property and all other property and assets was continued in the name of Joshua C. Sanders, and as property of such copartnership, until the death of the said Levi P. Wagner, on October 24, 1872. (3) That the said partnership affairs have never been settled by the said Joshua C. Sanders, and the said Joshua C. Sanders has not accounted for the assets of the same at any time, and, although demanded thereto by the plaintiff Julia E. S. Wagner on the ___ day of February, 1895, has refused and neglected to account, in disregard of his duty and trust as such surviving copartner. (4) That by deed dated 30th December, 1890, said Joshua C. Sanders, defendant, conveyed said plantation, and also all the personal property thereon, being a part of the partnership assets, including mill for ginning, wagons, carts, engines, boilers, hoes, and other implements, to the defendant H. G. Leland, for the consideration of $6,000. (5) That on the 2d day of January, 1891, defendant Horace G. Leland executed his bond to the said Joshua C. Sanders in the sum of $4,800 in part payment of the purchase money of the said plantation and personal property, and secured the same by his mortgage of said property of the same date to the said J. C. Sanders, which is not paid, and is now past due and owing. (6) That on or about the 24th day of October, 1894, said H. G. Leland conveyed said plantation and personality to the defendant J. B. Morrison subject to the said mortgage and mortgage debt of $1,800, and interest thereon, as therein stated. (7) Plaintiffs claim that the said bond and mortgage executed by the said defendant H. G. Leland to the defendant Joshua C. Sanders, and now past due, is a portion of the property of the plaintiffs, to which, and proceeds of which, these plaintiffs are solely entitled upon foreclosure thereof." The prayer of the complaint is as follows: "(1) That the said Joshua C. Sanders be required to account for, all and singular, the assets of the [alleged] copartnership heretofore existing between himself and Levi P. Wagner, and that said copartnership be wound up and settled under direction of this court, and that their share of its assets be decreed plaintiffs herein. (2) That said mortgage be foreclosed and premises sold, and proceeds, to amount due on the bond aforesaid, be decreed to belong to, and to be paid wholly to, the plaintiffs herein according to their respective interests. (3) For an injunction, pending this suit, enjoining the defendant Horace G. Leland or J. B. Morrison from paying over any amount due on such bond to said defendant Joshua C. Sanders or any other person. (4) For such other and further relief as this court may deem just and proper, and to which plaintiffs may be equitably entitled." Immediately upon the filing of the complaint, the plaintiffs, on an ex parte application, obtained a temporary order of injunction.

The defendants H. G. Leland and J. B. Morrison answered the complaint, denying the allegations thereof as to a partnership between Joshua C. Sanders and Dr. L. P. Wagner, and setting up as a defense that they were purchasers for valuable consideration, without notice. The defendant Joshua C. Sanders also answered the complaint, denying all its allegations, except certain immaterial portions, which it is not necessary to mention, and setting up the following defense: " That after the death of the said Levi P. Wagner the said plaintiff Julia E. S. Wagner, his widow, recognizing the absolute and exclusive right and title of this defendant to and in the plantation mentioned and described in paragraph first in said complaint, formerly known as 'Doe Hall,' and now styled 'Bay View,' and to and in the personal property on said plantation, including saw mill, corn mill, steam engine, and other machinery, also horses, mules, cattle, farming utensils, and other implements, on the 24th day of December, in the year 1872, made and entered into an agreement in writing, under her hand and seal, and under the hand and seal of this defendant, for the purchase of said plantation and personal property, whereby this defendant Joshua C. Sanders, for and in consideration of the sum of $6,000 to be paid to him by said Julia E. Wagner, and of the assignment to be made to him by her, as administratrix, of a certain judgment in favor of said Levi P. Wagner, and against Isaac F. Hunt, Jacob Hunt, and others, obtained in March, 1871, in the court of common pleas for the country of Charleston, S. C., agreed to sell and convey unto the said Julia E. Wagner said plantation and property, and by said agreement the plaintiff Julia E. Wagner agreed to purchase said plantation and personal property, and to pay therefor the consideration above mentioned. That the plaintiff Julia E. Wagner failed to fulfill the terms of her said agreement of purchase, and this defendant, upon her default in paying the first installment of said purchase money, instituted suit against her in the supreme court of New York to enforce performance thereof, and obtained judgment against her in the supreme court of New York on the 26th day of September, 1877, for the sum of $2,398.95, which debt has never been paid. That said plaintiff had also failed to assign the judgment recovered by Levi P. Wagner against Hunt Bros., according to the terms of her said agreement, and, on the contrary, attempted to assign the same to one Harris H. Beecher, who, as assignee therefor, attempted to revive and enforce the same for the benefit of himself, and in collusion with the said Julia E. Wagner, whereupon the defendant instituted suit against the said Julia E. Wagner and the said Harris H. Beecher in the supreme court of New York on the 24th day of December, A. D. 1881, to enjoin the defendants from collecting said judgment and from assigning the same, and from farther prosecuting any action thereon, and to require said defendant to assign said judgment to this defendant. Thereupon the action so instituted by said Beecher was discontinued. That thereafter, to wit, on or about the 8th day of October, A. D. 1883, defendant, at the solicitation of plaintiff Julia E. Wagner and her friends, and in consideration of the assignment by her of said judgment, and of the execution by her of a full and general release of claim and demands whatsoever against the defendant, satisfied upon the record the judgment in the supreme court of New York for $2,398, which the defendant had obtained against Julia E. Wagner, and thereupon the said Julia E. Wagner, under her hand and seal, executed and delivered to this defendant her general release, whereby she did, for self and her heirs, executors, and administrators, remise, release, and forever discharge the said Joshua C. Sanders, his heirs, executors and administrators, of and from all manner of action and actions, cause and causes of action, suit, debts, dues, sums of money, accounts, reckonings, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claim and demands, whatsoever, in law or in equity, which against him, the said Joshua C. Sanders, she had, now have, or which she, or her heirs, executors, or administrators, hereafter can, shall, or may have, upon or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of said release, and particularly from any and all claims arising and growing out of a certain contract made between said Joshua C. Sanders and herself, dated December 24, 1872, relative to the purchase of the right, title, and interest of the said Joshua C. Sanders in and to a certain plantation known as 'Bay View,' in the state of South Carolina; and said Julia E. Wagner did therein farther declare that she did thereby release and discharge all claims she may have acquired in and to said plantation, stock, etc., under and by virtue of said contract." He also pleaded the statute of limitations.

It may be well to mention here that upon the former appeal in this case (49 S.C. 192, 27 S.E. 68) the supreme court held that the complaint "contains but one cause of action,--the delict or wrong of the surviving partner in refusing to account to he representatives of a deceased partner for the partnership assets. *** The ultimate rights of all the parties depend upon the partnership accounting which is...