38 S.C. 272 | S.C. | 1893
The opinion of the court was delivered by
This being the second appeal in this case, it will not be necessary to make so full a statement of the general nature of the case as would, otherwise, be proper; but a reference to the former appeal, as reported in
Before entering into any discussion of the first question, it will, perhaps, be well to recall some of the undisputed facts of the case, and to ascertain precisely the exact state of the pleadings. A. G. Means, being very largely indebted to various persons (but whether to the extent of insolvency or not, was one of the issues of fact in the case), on the 30th of December, 1887, executed to his father-in-law, Bobert Beaty, sr., a mortgage on certain real estate held by him in Spartanburg County, and at the same time gave to said Beaty a confession of judgment covering all his real estate in Union County, together with a bill of sale of the personal property in controversy in this case, embracing all the personal property owned by A. G.
Soon after the property was thus levied upon, this action of claim and delivery was commenced by the plaintiffs against the defendant as sheriff. In their complaint they allege: 1st. That they are the owners of the property specifically mentioned, and are entitled to the immediate possession thereof. 2d. “That on the 12th July, 1888, at the plantation of Albert G. Means, sr., in the County of Union, the defendant wrongfully, and without authority of law, and in violation of law, levied on said property, under and by virtue of sundry executions against the property of said Albert G. Means, sr., for debt, and wrongfully took the said property from the possession of the plaintiffs, and still unjustly and wrongfully detains the same,” &c. To this complaint, defendant answered: 1st. Denying the allegations contained in paragraphs one and two of the complaint. 2d. “Further answering, this defendant says that, on the 12th July, 1888, at the plantation of A. G. Means, sr., in Union County,' this defendant, under and by virtue of executions against the property of the said A. G. Means, duly issued and directed to this defendant (in certain eases named), did levy upon and seize the property mentioned in the complaint as the property of the said A. G. Means, sr.,
Prior to the adoption of the Code of Procedure, it was a well recognized practice for a judgment creditor to treat as a nullity any alleged conveyance or transfer made by his judgment debtor prior to the recovery of judgment, on the ground of fraud in such conveyance or transfer, and levy upon and sell such property as still the property of the judgment debtor, and in any subsequent controversy for the possession of such property, such fraud could be proved without any allegation to that effect. See Lowry v. Pinson, 2 Bail., 324; Thomas & Ashby v. Jeter, 1 Hill, 380; Smith v. Culbertson, 9 Rich., 106; Richardson v. Rhodus, 14 Id., 95—in reference to real estate. DeMillen v. McAlliley, 2 McMull., 499; Motte v. Aiken, 2 Speer, 113; and Ford v. Aiken, 4 Rich., 121—in reference to personal property. And that this practice has been recognized since the Code, may be seen by reference to Amaker v. New, 33 S. C., 28. See, also, the case of Lyles v. Bolles, 8 S. C., 258, which was an action against, the defendant as sheriff for neglecting to take a trover bond, as ordered by the clerk. The defence was a general denial. The plaintiff, amongst other things, offered evidence of a judgment in the action of trover rendered at chambers. Defendant moved for a non-suit, upon the ground that no judgment in the action of trover had been proved; his position being that there was no authority for the rendition of such a judgment at chambers. To which plaintiff replied that the objection to the judgment offered could not be raised under the general denial. But the court held that the proof of a valid judgment was necessary to enable the plaintiff to recover, and that defendant might, under a general denial, assail the validity of the judgment; laying down the rule substantially as follows: that while, under the general denial, evidence of a distinct affirmative defence is not admissible, yet, in such a case, the defendant may introduce any evidence which goes to controvert the fact which the plaintiff is bound to establish, in order to sustain his action, and to disprove the case as made by him.
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So that we must conclude that the only ruling made by the court, and the only one which we are called upon to review, was whether the testimony of Hart was inadmissible, under section 400 of the Code. The objection based upon that ground is so manifestly untenable, that it was not urged by appellants in their argument here. But even if the testimony had been improperly received, it does seem to us that it would afford a very slender ground, if any at all, for granting a new trial, for it only amounted to the expression of an apprehension on the part of Beaty that he may have done wrong in signing the ■papers, and a fear that it might involve his son-in-law Means in a lawsuit. He neither said nor intimated anything tending to show that there was any fraud in the transaction, and we do not see that the testimony could have affected the verdict. But, at all events, the only ruling by the court below which we can review, is that the testimony in question was not rendered incompetent by anything contained in section 400 of the Code, and that ruling.was unquestionably correct.