33 S.C. 28 | S.C. | 1890
Lead Opinion
The opinion of the court was delivered by
I understand it to be well settled that an existing creditor who wishes to subject property to the payment of his debt, which has been conveyed by his debtor by a voluntary deed to another, before judgment obtained, has two remedies, to either of which he may resort, to wit: he may disregard the conveyance as fraudulent and void, and proceed to sell the property under his execution, leaving the validity of the deed to be determined in an action by. the purchaser at'such sale
But I do not see how this doctrine can be made applicable in a case where the creditor resorts to the former mode of relief from the fraud. In such a case the creditor brings no action to set aside the deed, and there is nothing to which the plea of the statute of limitations can be made applicable. That statute confers no rights except simply that of immunity from suit, and, therefore, until some action is brought against one who seeks to avail himself of the benefits of the statute, there is no room for its application. For example, where an action is brought on a note after the time limited for the commencement of such action, while the statute affords perfect immunity from such action, it does not operate as payment of the debt evidenced by such note, and if the holder thereof can obtain payment in any other way than by resort to an action, he has the right to do so. See Wilson v. Kelly, 16 S. C., 216. The statute of limitations is nothing but a statute of repose, as it has been called, founded on motives of public policy; that it is best for the general welfare that after the lapse of a prescribed time, fixed arbitrarily, a person shall not be allowed to enforce a claim by the use of the legal machinery of the courts; that is, the doors of the court are no longer open to him for the enforcement of a claim which he has neglected to assert within the prescribed time.
Now, in this case, treating it as though the action was brought by Sistrunk, in whose shoes the real plaintiff stands, where has there, been any delay on the part of the creditor in asserting his rights ? The voluntai’y deed was made in November, 1866, Sis-trunk recovered his judgment on a cause of action arising prior to the deed, in August, 1867, the land was levied on and sold by the sheriff in January, 1868, and possession was surrendered
This being an action to recover possession of real estate, and not an action to set aside a deed for fraud, I am .unable to see how the plea of the statute of limitations can be applied ; for certainly the right of action did not arise until the estate of dower fell in by the death of the widow, and the action was commenced within a year after that event occurred. The plea of the statute, as it is called (improperly, as I think, for such a plea must be directed to the cause of action set forth in the complaint), is not directed to the plaintiff’s cause of action, but is interposed as a protection against an attack made by the plaintiff’ upon the defence set up by defendants. The plaintiff'having made out a prima facie- title, as is shown by the refusal of the motion for a non-suit, to which no exception was taken, the defendants undertook to show a superior title in themselves under the deed in question, and surely the plaintiff was entitled to show any defect in that deed which would render it insufficient to vest title in the defendants, either by showing that it was not under seal, or not exe
I do not understand that it ever was the rule that a deed or other instrument could not be attacked for fraud after the lapse of the prescribed time in any way, but only that it could not be attacked by an action instituted for that purpose. I can very ,$v¡ell understand how the law, from considerations of public policy, may forbid one from invoking its aid by bringing an action to set aside a deed for fraud after the time limited for the purpose; but I am unable to understand upon what principle, either of law, equity, or good morals, one who has made out a prima facie case for the relief he demands, can be forbidden from showing that the defence set up against his claim is founded in fraud simply because such fraud had been committed so long ago as to bar an action brought to obtain relief from such fraud ; and I do not think any case can be found which would sanction such a doctrine.
It seems to me that any other view would render the conceded right of the creditor to disregard the fraudulent deed and sell the land under his execution absolutely nugatory. For, in such a case, all that the grantee under the fraudulent deed would have to do would be to wait until the expiration of six years, and then assert his claim under such deed, when, under the view contended for, it would be shielded from attack.on the ground of fraud, by the statute of limitations. If it should be said that the creditor, after purchasing the land under his execution, could protect himself by bringing a.n action to remove a cloud from his title, by having the deed declared void for fraud, this is only saying that one of the conceded modes of relief which a creditor has cannot be made effectual without resorting also to the aid of the other mode of relief; which practically amounts to saying that the only effectual mode of relief is by an action to set aside the deed for fraud, and that the other mode is but a delusion.
I agree with the Chief Justice, that the deed cannot be regarded as a marriage settlement, because it does not appear to have been made in pursuance of any arrangement entered into prior
As to the position taken by counsel for respondents that the judgment below may be sustained upon other grounds, even if there was error in charging the jury with respect to the statute of limitations, it is only necessary to say that this cannot be done iñ a case tried by a jury, for the reasons stated in Bonham v. Bishop, 23 S. C., at page 105.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.
I concur. It is clear that the plaintiff could not sue for the land during the life of Mrs. Inabnet, for she held it by a legal title — her dower right. Within a year after her death the plaintiff did sue for the land; but it appears that, in the meantime, other parties took possession, claiming under another and different right, which the widow, as to herself, disclaimed when she took dower. It seems to me that no action for the land accrued to the plaintiff, in respect to this new claim, until it was set up by the defendants after the death of the widow. Until the new claim was asserted, by taking possession under it, no right of action for the land existed in the plaintiff which required him to sue the defendants.
Dissenting Opinion
dissenting [omitting his statement, already given]. The first and second propositions above [i. e., as stated by counsel for appellant] may be affirmed without argument, upon the general principle that fraud will vitiate anything. In both of said propositions it is assumed and conceded that the deed is voluntary and in fraud of existing creditors. Such a deed is, of course, void, and a purchaser at sheriff’s sale of land conveyed in such deed gets a superior title to such deed. This is unquestionably sound legal doctrine, as well as good morals. But while this is true, yet there is another doctrine which holds that a party may lose a perfect title by delay in asserting it. Statutes of limitation, for the sake of peace and repose, have been adopted and enforced in almost every country;
Suppose that in this case Sistrunk was alive, and had instituted an action on the equity side of the court to vacate this deed for fraud, at the date of the action below — 15 years or moré after his purchase at sheriff’s sale — could the court have entertained the action for a moment? We think not. What is the difference between such a case and the one below ? True, the plaintiff is not Sistrunk, but he stands in Sistrunk’s shoes. True, too, the action below was not in terms to vacate defendant’s deed, but still plaintiff’s claim depends upon vacating that deed. It is setup by the defendants in opposition to plaintiff’s deed, and the plaintiff attacks it on the ground of fraud, and he must sustain his attack, or his claim fails. In other words, he must have it adjudicated fraudulent in order to succeed in his action for the recovery of the land. This is nothing more than an effort to set aside said deed for fraud, which, as we have seen, cannot be done after the lapse of the statutory period; certainly not in a direct proceeding to that end, much less so in a collateral attack. The fact that Bennett yielded possession to Sistrunk at the sheriff’s sale, and that the widow of A. Inabnet, the life tenant cestui que trust under that deed, came in and claimed dower, was well cal
Not do we think there was error in his ruling as to the necessity of this deed being recorded in the office of the secretary of State; nor was his charge, when taken as a whole, vulnerable, as complained in the last exception, “in that it charged on the facts,” in violation of article IV., § 26, of the Constitution.
Judgment reversed.