Alexander v. Dubose, 52 S.E. 786

52 S.E. 786 | S.C. | 1905

November 16, 1905. The opinion of the Court was delivered by Both sides appeal in this case from an order of Judge Dantzler made on the hearing of defendant's motion to strike out certain portions of the complaint as irrelevant or redundant. The defendant moved to strike out those portions of the complaint, herein set out in full, which are italicized, and of those italicized portions, the Judge struck out those enclosed within brackets and refused to strike out those not so enclosed. The defendant appeals from so much of the order as refuses to strike out, and the plaintiff appeals from so much of the order as strikes out. The complaint is as follows:

"I. That the plaintiff is the owner in fee, and in the possession of a part, and entitled to the immediate possession of the whole, of all that tract of land situate in the county of Florence, State aforesaid, containing, by a recent survey, eight hundred and twenty-six acres, more or less, in the deeds of conveyance thereof, and is bounded by lands owned by persons now or formerly as follows: north by lands of W.M. Timmons, S.E.B. Hickson and Adeline Sims; east by lands of S.E. Carter and Margaret Conyers; south by Lynches River; and west by lands of J.J. Ward.

"II. That there is a cloud upon the title of the plaintiff to the said premises, by reason of the fact that there appears of record in the clerk's office of said county, in book 1, on page 728, an instrument of writing, purporting to be a deed of conveyance by the plaintiff to the defendant, for the consideration,therein expressed, of thirty-three hundred and forty-seven dollars and forty-nine cents ($3,347.49), and whichpurports to have been signed by the plaintiff, as the grantor,and two subscribing witnesses, namely: J.E. DuBose andMay DuBose. That while the plaintiff admits that she placed her signature to the original of said instrument of writing, that her signature thereto was obtained by the defendant by fraud and deception practiced upon her by him, as hereinafter more fully stated. Yet at the time she signed the same there was no consideration whatever, expressed or stated in the instrument, nor was it witnessed by the subscribing witness, May DuBose, whose name appears as a witness thereto (who was then, at the time of the signingof said original instrument, not at the plaintiff's home,where she signed the same, but was many miles away, asthe plaintiff is informed and believes,) and that the plaintiff has never acknowledged to her that she signed or executed said instrument of writing. (That the other subscribingwitness, J.E. DuBose, was present at the plaintiff's home onor about the date of said instrument, to wit: the 16th day ofSeptember, 1897, and did witness the plaintiff's signaturethereon. That if the signature of the said May DuBose wasplaced upon the original instrument, of which the said recordpurports to show a copy, it was put there without the authorityor consent of the plaintiff,) and that the deed is, therefore, null and void in law, and should be cancelled of record by the proper order of this Court.

"III. That the defendant is now (endeavoring to defraudthe plaintiff of her right and title to said property) by claiming that he holds the absolute title thereto and denying that the plaintiff has any title or interest in law or equity to the same; whereas, not only is the said instrument purporting to be a deed illegal, by reason of the defects and deficiencies above stated, but that the signature of the plaintiff was wrongfully and fraudulently obtained thereon by the defendant by reason of the following facts and circumstances, to wit: That the plaintiff's former husband, Dorsey G. DuBose,departed this life on or about the 10th day of June, 1891, leaving the plaintiff, his widow and the mother of their children,eight in number, most of whom were small and of tenderyears. That a few years before his death, acting under the counsel and advice of her husband, who was the manager of all her affairs, she sold a tract of land in Darlington County, and after paying the mortgage debt thereon, reinvested the net proceeds in the purchase of the tract of land above described, the title deed being taken to and in the name of the plaintiff, who executed a mortgage thereon to secure the balance of the purchase money thereof, to one Mrs. Mary Byrd, about the year 1889. That the defendant is the plaintiff's next oldest son, and his father, shortly before his death,and being conscious that his death was near at hand, told thedefendant, who, by experience and superior advantages ofeducation, was, as he thought, the best qualified to take hisplace in the management of the business affairs of the plaintiffafter his death, and that he wanted him to take care ofhis mother, the plaintiff, and take charge of the affairs athome, and the defendant promised to do so. That immediately upon the death of the plaintiff's said husband, the defendant took exclusive control of the said plantation and of all the affairs of the plaintiff, employed his younger brothers, the plaintiff's other children, to work share crops upon said land, year after year, hiring some for wages and agreeing out of their shares of the proceeds of the crops to pay their board to the plaintiff, who kept them, boarded them and cared for them at her home on said farm, with the understanding that the net proceeds of the crops were to be paid by the defendant upon the said purchase money mortgage debt. He received all of the same and has never accounted therefor to the plaintiff. Some time during the year 1897, Reddin Byrd, the son of the said Mrs. Mary Byrd, and her heir at law, as she had died, came to the plaintiff and asked for the payment of the said mortgage debt; that she referred him to her son, the defendant, and had no further business transaction with the said Reddin Byrd. The defendant then undertook to borrow the money for the plaintiff elsewhere by a mortgage of the premises, and shortly thereafter sent out to the plaintiff's home — the defendant was not,and had not been, living at home with the plaintiff for severalyears — the agent of the Scottish Loan Company, toinspect the land and ascertain its value, with the view of lending the money upon a mortgage therefor. The saidagent stated to the plaintiff and the family that the land wasvaluable, and that the said company would lend the moneythereon. The plaintiff and her entire family were pleased atthis statement, and became satisfied that the home wouldbe saved from foreclosure of the first named mortgage, forthe plaintiff had been informed by the defendant that thesaid premises were then being advertised for sale under thepower of sale in the first named mortgage, which could onlybe prevented by obtaining the money elsewhere to pay off thesame. A few days after the agent went away, the defendant came again to the home of the plaintiff, on the said tract of land, and without any previous agreement or understanding with her, brought with him the said instrument of writing purporting to be a deed of conveyance, and requested the plaintiff to sign for same, stating that it was necessary for her to make the title over to him, as the said Scottish Loan Company had refused to lend the money to her on account of her age, she being, as he said, above the age, under their rules, to borrow money of them. While the defendant washer son and she placed great confidence in him, she hesitated to do so, asking him what interest she would then have. The defendant replied that the land was about to be sold under the first mortgage, and you and the family will be turned out of the house and home and be put in the public road, if you do not sign this deed. The plaintiff began to cry, and thedefendant walked away from the house, and in a few minutescame back again and repeated the statement to her, that ifshe did not sign the deed she would be put in the public road; and, as a further inducement to the plaintiff, told her that he would see to it that she at least was saved a hundred acres around the dwelling house. That the plaintiff was and had been for some time in declining health, under the constant treatment of her physician, and was not expected to live many months, her mind and body being both in a weak condition, but trusting the defendant that he would do all that was right and proper by her and her children as to the whole premises, and believing, from defendant's statement, that she and her children would be put out penniless if she did not do so, signed the said deed as aforesaid, and acknowledged her signature to the same to her other son, J.E. DuBose, who was present when the same was signed, there being no other witness present, as above stated. (That at the time of thesigning of the said deed the plaintiff noticed that there wasno consideration or purchase price made therein, the spacetherefor being left blank, and that she has no knowledge orinformation by what means the consideration thereon, as nowappears of record, was ascertained or placed there,) nor has she received any consideration therefor from the defendant or any one else, and that her equity of redemption under the first mortgage stated has never been purchased from her by any one. That said tract of land was of the value of about $10,000 then, 1897, and is now worth about $16,000. Thatthe plaintiff is informed and believes that the defendant soonthereafter, by a mortgage executed by him, obtained thenecessary money to pay off the first mortgage aforesaid,which was about the sum of seventeen hundred dollars, asthe plaintiff is informed and believes, though it might bethat the same should have been a small amount if the defendanthad properly applied all of the net proceeds of thecrop thereon prior thereto, which he had received. That thedefendant's brothers, the plaintiff's other sons, to wit: Junius,Albert and Oquin, after the signing of the said instrumentby the plaintiff, continued to work crops upon said lands,either for wages or under share crop contracts with the defendant,year after year, it being understood by all concernedthat the net proceeds were to be applied to the indebtednesson said plantation. That the defendant has continued to receive all of the proceeds from said farm from year to year, being about forty bales of cotton per annum, besides tobacco and provision crops, and has never accounted therefor to the plaintiff, but, on the contrary, now refuses to account for the same, or for any other income that he has received therefrom, and claims an absolute fee simple title to said premises, denying that the plaintiff has any right or interest therein.

"IV. That the said Dorsey G. DuBose left a life insurance policy of one thousand dollars for the benefit of his wife and children, but left a chattel mortgage on his horse and someof his cattle, to one John McSween. That the defendant was duly appointed the general guardian of the six minor children of the plaintiff, and obtained possession, not only oftheir shares of the money under the life policy, but of the plaintiff's share as well. That she signed a receipt for thesame but never received the money, the same being paid to the defendant. That, by an understanding with the plaintiff,the defendant undertook to pay, and did pay off, thesaid chattel mortgage, using the plaintiff's share of themoney for that purpose, as far as it would go, which, asplaintiff is informed and believes, was not quite sufficient topay off the entire amount of the chattel mortgage; but the defendant took charge of the personal property coveredthereby, traded off the horse, but for many years left the cattle on the farm, to be used by the plaintiff, until the 30th of March, 1904, he came to the plaintiff's home and took away all of the cattle, being four head, covered by said chattelmortgage, and their increase, and converted the same into his own use, and should account for all of the same.

("V. That shortly after the plaintiff made said deed, thedefendant wrote to his next oldest brother, Junius, who wasthen in a Western State, and simply stated that he had themortgage matter arranged; that soon afterwards Junius returnedto plaintiff's home, and upon meeting the defendantthere, he acknowledged to him that he had arranged thematter by borrowing the money from the Scottish LoanCompany, but that he intended to give his mother one hundred acres where the dwelling house is located, to use for herlifetime, and at her death the same to be turned over to himfor his share of the plantation, but that the rest of the plantationhe intended to divide up among all of her other childrenin equal shares. Of this the plaintiff is informed by herson, Junius, and believes the same to be true.)

"VI. That, in addition to all the crops since his father's death, the defendant has also received the proceeds of about two hundred acres of pine timber on said tract of land, which was manufactured into lumber by the defendant, by and through his contract with some person managing a sawmill, and which he had put upon said land about the year 1900. That the said pine timber was thick and of good quality, and well worth at least the sum of ten dollars per acre, aggregating two thousand dollars, all of which the defendant converted to his own use and should account for the same. That the defendant also had manufactured on said plantation, since he has had control of said tract of land, sixty thousand cypress shingles of the value of about two hundred and fifty dollars, and sold therefrom also twenty-six sticks of square timber, and should account for the same.

"VII. That by and through the efforts of her son, since the defendant has had control of said premises, the plaintiff has procured to be cleared upon said land fifty-five acres of new land, and made suitable for cultivation in crops, and has also built several houses and tobacco barns, in the confidence that she and her children would receive the benefit thereof in the improvement of the plantation, which she hoped to be able to divide among them. (That some of her younger childrenare now of age and need the land, which she desires to distributeamong them.)

"VIII. That the plaintiff is informed and believes that the defendant has paid off, or nearly paid off, the mortgage indebtedness aforesaid upon said tract of land, and whether the same has been paid or not, she alleges that he has received more than a sufficient income therefrom to pay off the same, and should account therefor.

"Wherefore the plaintiff prays judgment that the alleged deed by the plaintiff to the defendant be adjudged illegal, fraudulent, null and void; that the defendant be required to account for the mortgage debt and to account for the rents and profits received by him from said plantation and the live stock and personal property thereon, since the death of his father in 1891. That the income be applied to the payment of the debt, and that the plaintiff have judgment against the defendant for excess, and for such other relief as may be just and proper, and for costs."

Sec. 181 of the Code provides: "If irrelevant or redundant matter be inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby."

"An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action." Pom. Code Rem., sec. 551; Smith v.Smith, 50 S.C. 67, 27 S.E., 545. An allegation is irrelevant when it has no substantial relation to the controversy.Nichols v. Briggs, 18 S.C. 473.

"Irrelevant matter is necessarily redundant, and though redundant matter — as statements of evidential facts — may pertain to the cause of action, yet they are sometimes called irrelevant as well as redundant." Bliss on Code Pl., sec. 214. "Matter which has no connection with the cause of action is irrelevant, while the statement of evidential facts is unnecessary. The latter may be very pertinent, they may all relate to the case, yet their statement is uncalled for and violates as well the rule against pleading evidence, and, therefore embodies redundant matter." Same author, sec. 423. This author gives as his seventh rule for the statement of a cause of action that "No fact should be stated which is not pertinent and whose statement is not necessary."

In sec. 163 of the Code, it is provided that the complaint shall contain: "A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition." The facts thus required to be stated are the basic, ultimate facts as distinguished from facts which are merely evidentiary. These general rules sustain the action of the Circuit Court in striking out.

On the other hand, this is a cause in equity, and in Smith v. Smith, 50 S.C. 54, 66, 27 S.E., 545, the Court quotes approvingly from Pom. Code Rem., 527, showing that "In the legal action the issuable facts are few, in the equitable suit the material facts upon which the relief depends or which influence and modify it are generally numerous and often exceedingly so; in the former they are simple, clearly defined and certain; in the latter they may be and frequently are complicated, involved contingent and uncertain." From this distinction there must exist somewhat more latitude in such cases in stating the facts and circumstances upon which plaintiff depends for the relief sought. The Court should be liberal in indulging a statement of facts which may be material to the relief sought, in whole or in part. This is especially true when fraud is alleged, as in this case, for both in law and in equity it is essential that the facts and circumstances which constitute fraud should be set out clearly. 9 Enc. Pl. Pr., 684; 58 S.C. 59. In such cases it is not reversible error to refuse to strike out matters which are "directly or remotely relevant to the matter sought to be established." Allen v. Cooley, 60 S.C. 370,38 S.E., 622.

Under these principles, we find no material reversible error in so far as he refused to strike out. On the whole, we do not see that either party is prejudiced in any material manner by the action of the Court.

The exceptions are, therefore, overruled, and the judgment of the Circuit Court is affirmed.

The CHIEF JUSTICE did not participate in this opinionbecause of illness.