Wilson v. Hyatt, McBurney & Co.
| Citation | 4 S.C. 369 |
| Parties | WILSON v. HYATT, MCBURNEY & CO. |
| Decision Date | 14 August 1873 |
| Court | United States State Supreme Court of South Carolina |
One claiming the legal title to land cannot, on the mere ground that he is the legal owner, maintain a bill in equity to enjoin its sale by the Sheriff under execution, as the property of another; nor does it make any difference, it seems, that the plaintiff in the bill is the executrix of the debtor, as whose property the land was levied on, and the execution is against herself as executrix.
Under the former practice of the Court only such relief would be granted, under the general prayer for relief, as the case stated in the bill would justify.
BEFORE GRAHAM, J., AT CHARLESTON, MAY TERM, 1872.
Bill in equity filed by Jane C. Wilson and Frances L. Wilson against Hyatt, McBurney & Co. The case is stated in the decree of the Circuit Judge, which is as follows:
It appears from the records of these cases, the execution upon the judgment in the former, of which the bill in the latter (under the old equity practice) was filed to enjoin, and from the report of the Referee in the former, that John Wilson the husband of Frances L. Wilson, in his lifetime, was indebted to Hyatt, McBurney & Co. for certain goods sold to him, upon which suit was brought against him in 1860, but abated by his death; and, from the report of the Referee in the latter, that in 1867 Frances Wilson, the executrix, by a deed reciting her power under his will to sell any part of his real estate to pay debts, or for the purpose of changing investment, and her willingness to become the purchaser of certain parts of the real estate for the sum of ten thousand dollars ($10,000) in cash, which sum exceeded the assessed and actual value of the said real estate, conveyed the property afterwards levied upon, and the title to which is the subject of this suit, to her daughter, Jane C. Wilson her heirs and assigns forever, in trust, nevertheless, to and for the use of the said Frances L. Wilson, her heirs and assigns forever , and to convey the said premises to the said Frances L. Wilson, whenever thereunto by her required and that on the same day the said Jane C. Wilson re-conveyed the premises to Frances L. Wilson in fee simple.
That on the third day of January, 1868, suit was instituted by Hyatt, McBurney & Co. against Frances L. Wilson, as executrix, and judgment obtained thereon on the 9th of July 1869. By the report of the Referee in the suit of Hyatt, McBurney & Co., against Mrs. Wilson, as executrix, it appears that Mrs. Wilson was the agent of her husband in his business, and had full knowledge of this debt, and that no plea of plene administravit was filed. Execution was issued on the 16th of July, and under it the premises in question were levied upon as the property of John Wilson, in the hands of his executrix, and advertised for sale.
On the 19th of November Jane C. Wilson and Frances L. Wilson filed their bill in equity, stating the execution of the deeds, as above, and also that the said Frances L. Wilson, finding herself unable to pay the said $10,000, the consideration for which the deed to herself purported to have been made, and for which she had, at the time, given her note, and which money she expected to have received from her separate and individual estate, at the request of Jane C. Wilson, and to discharge the said note, she had, on the 17th of July, 1869, (which, it will be observed, was the day after the date of the execution,) re-conveyed the premises to the said Jane C. Wilson and her sister, Amelia M. A. Wilson. Upon the filing of this bill a temporary injunction until the coming in of the answer of Hyatt, McBurney & Co., was granted by the Hon. R. B. Carpenter, then Judge of this Circuit, and upon the filing of the answer, December 28th, 1869, an order of reference was made to W. J. Gayer, Esq.
It should be observed that, on the ______ day of June, 1868, Frances L. Wilson executed a bond and mortgage of the premises to Jane C. Wilson, for herself and her sister, A. M. A. Wilson, but the mortgage was not put on record.
References were had before Mr. Gayer, at which Mrs. Wilson and her daughter testified, their testimony being directed almost entirely to explain how it was that Jane C. Wilson, the daughter, had the means to lend her mother the $10,000 in specie in 1864. Their story is most remarkable-viz: That the father of Mrs. Wilson, who lived somewhere near Liverpool, having disinherited her on account of her marriage, and who died some time in 1858 or 1859, left, by his will, some $10,000 in gold to Jane C. Wilson, a daughter of Mrs. Wilson, and his grand-daughter; that an uncle, George Elford, ran the blockade in 1864, brought her this money, took it to Abbeville, and there paid it to her; that she lent it to her mother to pay her father's debts; that Mrs. Wilson, as executrix, paid two notes of John Wilson with this money, " one for $5,000, and one for $6,000, in gold; the one payable to John Mullins, and the other to William Mullins; " that Messrs. John and William Mullins were English gentlemen; that Mr. John Mullins died, as Mr. Wilson had heard, in Nassau, in 1864, and that Mr. William Mullins is in England. This testimony was taken on the 19th of April, 1870, but no report was filed by the Referee until the 17th of May, 1872, when the case came up before me. The counsel for the complainants, the Wilsons, then objected to it because the Referee had not reported upon the facts, as directed, and under the order of reference I required another report. This second report was filed on the 31st of May, 1872, on which day the case again came up before me. The counsel for Messrs. Hyatt, McBurney & Co., while saying at the bar that there was little or nothing in the report to which he objected, claimed that the decision of a Referee is always open to review upon the facts in this Court, without any exception taken, and the Court should always look into the evidence, if questions were raised, to see whether there is evidence to support the facts, or any of them, as found by the Referee, and that no exceptions is necessary in order that the questions may be raised, and referred to the case of Liflee vs. Field , 50 Barb., N. Y., 410, in support of this position. On the other hand, the counsel for complainant contended that unless exceptions are filed the findings of the Referee cannot be questioned. The counsel for Hyatt, McBurney & Co. then offered to file the following formal exceptions, to wit:
The defendants in this case except to the report of the Referee, because-
1. He finds that the premises in question were sold " by the said Frances L. Wilson to the said Jane C. Wilson, etc.
" Whereas, it is submitted that no consideration whatsoever is proved to have been passed, and that, in fact, none ever did pass, and that the record and evidence reported shows that the conveyances from the said Frances L. Wilson to the said Jane C. Wilson, and from the said Jane C. Wilson to the said Frances L. Wilson, were made in attempt to defraud the said Hyatt, McBurney & Co., and other creditors of the said John Wilson.
2. " Because the report of the Referee, as far as it sustains the said sale and conveyance by the said Frances L. Wilson, executrix, to the said Jane C. Wilson, and the re-conveyance of the said Jane C. Wilson to the said Frances L. Wilson, is contrary to the law and evidence in the case."
To which the counsel for Mrs. Wilson and her daughter objected that it was too late to do so after argument on the merits. The view I have taken of the report and of the case, as...
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