45 S.C. 677 | S.C. | 1896
The opinion of the Court was delivered by
The allegations of the complaint are substantiall}’- as follows: I. The corporate existence of the Bank of Charleston National Banking Association. II. That on the 24th day of'November, 1874, the defendant, B. H. Dowling, in consideration of .$16,000, paid by J. C. and C. T. Dowling, made and delivered to the said J. C. Dow-ling and C. T. Dowling, a deed of conveyance to the land described in the complaint. III. That on the 13th March, 1875, J. C. and C. T. Dowling executed and delivered to B. H. Dowling their mortgage, to secure the payment of the balance of the purchase money on said land, conditioned for the payment of $16,000. IV. That J. C. and C. T. Dowling forthwith entered into possession of the said lands, and continued in possession thereof until December, 1877. V. That in December, 1877, the defendants, J. C. and C. T. Dowling, abandoned possession of the said lands, and voluntarily surrendered possession thereof to the defendant, E. H. Dowling, who forthwith entered into possession thereof, and has continued in possession thereof till the present time. VI. That on the day of , 1888, Mrs. Virginia Spann Dowling, the wife of the defendant, E. H. Dowling, departed this life, leaving of full force her last will and testament, wherein she left her entire real and personal property to “be during the lifetime and capacity of the said E. H. Dowling managed, controlled, exchanged, sold or otherwise disposed of at 'and by the discretion of the said Elijah H. Dowling, and without accountability therefor, and in accordance with any testamentary directions of the said Elijah H. Dowling, &c.” VII. That the said Mrs. Virginia Spann Dowling left surviving her three children, the defendants, Henry Spann Dowling, Decania Dowling, and Dina E. Dowling, and said defendants are now infants above the age of fourteen years and under twenty-one years; and said children of Mrs. Virginia Spann Dowling are made parties hereto, that their
The prayer of the complaint is as follows: “1st. That said alleged deed of J. C. Dowling to Mrs. Virginia Spann Dow-ling be declared a fraud upon the creditors of the said J. C. Dowling and E. H. Dowling, and that the said defendants be required to produce said deed, and that it be delivered to clerk of this court and canceled as a' cloud upon the title of this plaintiff. 2d. That the alleged assignment of said mortgage to Mrs. Rebecca Barr be held to be a transfer of the property of defendant, E. H. Dowling, as with undue preference, and in fraud of the creditors of E. H. Dowling. 3d. That the subsequent transfer of said mortgage to the wife of the defendant, E. H. Dowling, be cancelled as a fraud upon the creditors of J. C. Dowling and E. H. Dow-ling. 4th. That the holding of Mrs. Virginia Spann Dow-ling, during her lifetime, under the assignment of said mortgage and the said deed from J. C. Dowling, and the subsequent holding of E. H. Dowling, as executor under the will of said Mrs. Virginia Spann Dowling, be held to be
His Honor, the Circuit Judge, did not pass upon the equitable issues herein, and as the case must be remanded for the purpose of having these issues decided, in the Court below, it is proper that this Court should not consider appellant’s other exceptions.
It is the judgment of this Court, that the judgment of the Circuit Court be modified, and the case remanded to the Circuit Court for the purposes herein mentioned.