11 S.C. 29 | S.C. | 1878
Tbe opinion of the court was delivered by
The facts of this case are so fully and clearly stated in the report of the referee, that it is only necessary to advert to the precise question raised by this appeal. The fundamental allegation upon which this appeal is based is, that funds used to make the cash payment on the land mortgaged, were trust funds. It was incumbent upon the appellant to establish this allegation by proof, and this he has wholly failed to do, while on the other hand the testimony adduced by the respondent goes falto show the contrary. The referee having found the fact to be that the funds so used were not trust funds, and such finding-having been confirmed by the decision of the Circuit judge, under the well-established rule of this court, it will be regarded as conclusive, unless it is without any evidence to sustain it, or is against the manifest weight of the evidence. So far from this being the ease, it is very obvious, from the most casual reading of the testimony, that the finding of the referee is fully supported by the evidence.
It is argued, however, that while there was no evidence introduced in the usual way to establish this essential allegation on
It is manifest that the appellant could not have so intended it at the time the answer was prepared, for, after stating in the first five paragraphs the facts upon which he relied as constituting his defence, growing out of the assumption of the trust character of the funds used in making the cash payment on the land, he proceeds in the sixth paragraph to say: “ This defendant further alleges, by way of counter claim,” certain facts upon which he bases a charge of fraud, of which not a tittle of evidence was offered, and which was, therefore, very properly abandoned; and in the seventh paragraph he says: “ That as a further counter claim,” &c., setting up a misrepresentation in the quantity of the land sold, which was likewise abandoned. This mode of setting up defences was well calculated to induce the respondent, Cochran, to suppose that the appellant did not regard the allegations contained in the first five paragraphs of his answer as setting up a counter claim, for, when he sets up further defences of this character in the sixth and seventh paragraphs of his answer, he distinctly says that he sets up such defences by way of counter claim, plainly implying that his first defence was not of that character. Hence, we think that the appellant must be regarded as not intending the first five paragraphs of his answer as a counter claim, as, otherwise, the conclusion would be that he intended to mislead the respondeat. But as we are satisfied that, even though the defence set up in the first five paragraphs of the answer be regarded as a counter claim, the allegations upon which such defence rests are sufficiently denied by the reply, we deem it unnecessary to enter upon the inquiry whether such defence can properly be regarded as a counter claim.
The appellant, for the purpose of showing that the funds used
The appellant having failed to establish the allegation upon which this whole appeal rests — in fact, having offered no evidence whatever to sustain it — can take nothing by his appeal.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.