De Witt v. Dowling

• Decision Date: 27 March 1917
• Docket Number: 9656.
• Citation: 91 S.E. 1040,107 S.C. 51
• Parties: DE WITT v. DOWLING ET AL.
• Court: South Carolina Supreme Court

91 S.E. 1040

107 S.C. 51

DE WITT v. DOWLING ET AL.

No. 9656.

Supreme Court of South Carolina

March 27, 1917

Appeal from Common Pleas Circuit Court of Bamberg County; Geo. E Prince, Judge.

Suit by Gulielma De Witt against Laura C. Dowling and others. Decree for defendants, and plaintiff appeals. Affirmed.

Plaintiff's exceptions referred to are as follows:

(1) Because the circuit judge erred in not holding that an outstanding claim of dower was such an incumbrance as was covered and guarded against by the covenants of warranty in the deed from E. H. Dowling to plaintiff herein, which claim was in existence at the time of the execution of the deed in question.

(2) Because his honor erred in not holding that to the extent of the amount assessed against the plaintiff as dower, that the plaintiff was to that extent evicted from the premises which she was holding and enjoying under the express warranty of the said E. H. Dowling, and in not holding that the right of dower claimed and recovered was a diminution of the value of the land, but consistent with the passing of the fee.

(3) Because his honor erred in not holding that in the allotment of dower, or a sum of money in lieu thereof amounts to actual eviction and ouster, and an action on the breach of the covenants in the deed cannot be maintained until after the eviction, in this case the payment of the sum of money assessed in lieu thereof.

(4) Because his honor erred in not holding that the contingent right of dower in the wife whose husband is living at the time of the conveyance, is an incumbrance against which the general warranty is intended to protect the vendee in this case the warranty of E. H. Dowling to the plaintiff his vendee, was a protection against the outstanding claim of dower of the wife of the said E. H. Dowling.

(5) Because his honor erred in holding that plaintiff had failed to show that the estate of E. H. Dowling at the time of his death, 1906, was not sufficient to satisfy all claims against said estate, when, it is respectfully submitted, he should have held that until dower was demanded and recovered, that then and only then did the plaintiff have any notice of the claim of dower in the lands conveyed by the husband of the demandant.

Mayfield & Free, of Bamberg, for appellant.

W. H. Townsend, of Columbia, for respondents.

GAGE J.

This cause is the sequel to Dowling v. De Witt, reported in 96 S.C. 435, 81 S.E. 173. The suit for dower established in that case is the occasion of this action. The instant action is to set aside two deeds, one from E. H. Dowling to his wife Laura, and one from E. H. Dowling to his children, Spann, Decania, and Lina; upon the ground they are voidable as against the plaintiff's claim against the estate of E. H. Dowling, because made without consideration, and operated as a fraud upon the plaintiff. These deeds were made in December, 1905. Before that, in January, 1890, E. H. Dowling had conveyed to the plaintiff here a parcel of land, with general warranty.

E. H. Dowling died in October, 1906. In 1914, Laura, the widow of E. H. Dowling, sued the plaintiff for dower in the lands conveyed to plaintiff by her husband in 1890, and recovered. That is the breach of the warranty which E. H. Dowling made the plaintiff, and which is now set up by the plaintiff against the widow and children of E. H. Dowling as a claim against Dowling's estate, that was existing when he made the alleged voluntary deeds. The court decreed for the defendants: (1) Because it did not appear by testimony that when E. H. Dowling made the two deeds in 1905, he did not then retain sufficient property to pay his debts; and (2) because the obligation from E. H. Dowling to the plaintiff, arising out of the breach of warranty, did not exist when the aforementioned voluntary deeds were made by E. H. Dowling to his wife and children; and (3) because there was not proven an intent by E. H. Dowling when he made the deeds to his wife and children to defraud his creditors; and because the transaction did not amount to a constructive fraud by E. H. Dowling. These embrace all of the conclusions of the circuit court, except those conclusions upon record matters of fact about which there is no dispute.

There are five exceptions. Let them be reported. The first four charge omissions to find; the last charges an erroneous finding and an omission to find. As to the first, it is true that if an "outstanding claim of dower"--an inchoate right of dower--exist against the title when the general warranty is made by the grantor, then the subsequent ripening of the dower right and its successful assertion constitutes a breach of the warranty. So much is...