148 S.E. 220 | S.C. | 1929
The opinion of the Court was delivered by
intent to hinder, delay, or defraud creditors. It sometimes happens, under circumstances of that kind, that the registration of instruments becomes the controlling question. In the pending case, however, the plaintiff apparently .intended to charge fraud on the one hand, and a failure to record within the statutory period on the other hand, as the grounds on which it hoped to recover.
“However; as will hereinafter appear, in my judgment the question of registration or recording of the deeds in question is not, under the interpretation placed on our recording statute of our Supreme Court,'a practical question in this case. It will be seen that the deeds in question were not only made as appears by the testimony before the relation of debtor and creditor existed between the defendants Graham W. Graham and R. E. L. Graham and the plaintiff in this case, but that the deeds were also recorded while the plaintiff was a simple contract creditor.
“The Master found and reported that under date of November 10, 1919, the defendant R. E. L. Graham purported to convey to his wife, Laura J. Graham, for an expressed consideration of $1,000, 300 acres, more or
“The Master found further that this deed was recorded on November 20, 1920, and that in December, 1919, after the alleged date of the deed in question, the defendant R. E. R. Graham became indebted to the plaintiff, Baugh & Sons; that this indebtedness was afterwards liquidated by notes bearing date June 1, 1920, and subsequently reduced to judgment after sundry credits had been made thereon, and held,briefly, that the deed in question not having been recorded within the 10 days fixed by statute, could be considered effective only from the date of its recording, and he held also that at the time of the recording of the deed, Mr. Graham was insolvent and that,, regardless of the date of the deed, it was ineffective against the plaintiff in this case.
“A careful study of the testimony, I think, shows that at the date of the deed referred to, R. E. R. Graham was not indebted to any one, especially to the plaintiffs herein, and, if so, he had the right to either sell or convey away his property. There was no evidence that Raura J. Graham had any knowledge of his business affairs, and even if the testimony had showed that R. E. R. Graham was attempting to dispose of his property with intent to hinder, de
“So, to sum up so far as the attack on the title of Laura Jane Graham is concerned. I conclude: First, that the testimony shows that the 10th of November, 1919, is the correct date of the deed made by R. E. L. Graham to her. Second, that at that time R. E. L. Graham was not insolvent and not indebted to the plaintiff. Third, that there was no collusion between Laura J. Graham, the grantee, and R. E. L. Graham, the grantor. Fourth, that so far as plaintiff herein is concerned, the deed in question was effective from its date and until plaintiff became a lien creditor; that at the time of the recording of the said deed on November 20, 1920, the plaintiff was, within the meaning of Carroll v. Cash Mills, supra, simple contract, unsecured creditor, and therefore that the deed made by R. ,E. L. Graham to his wife for life with the remainder in .fee to the infants, namely, Woodrow Graham, Bernice Graham, Inaise Graham, and Roschell Graham,
“The Master found and reported that under date of October 24, 1918, Graham W. Graham purported to convey to his wife, L. L. Graham, for an expressed consideration of $2,000, 150 acres, more or less, of land owned by him individually. The Master also finds that deed of Graham W. Graham purported to convey to Lillious L. Graham, under deed of date June 19, 1920, a tract of 150 acres, more or less, but finds that this deed covers the same and identical tract conveyed to her, the said L. L. Graham, by the said deed of Graham W. Graham to L. L. Graham of date October 24, 1918. The lands covered by these said deeds are known as the Powell tract, and, as is found by the .Master, both of these deeds cover the same and identical tract of land. There are several other deeds and one mortgage, all covering this same Powell tract of land, and for the purpose of giving a careful consideration to all transactions affecting this tract, the conveyances covering the 150-acre tract, known as the Powell tract, are briefly set out as follows, to wit:
“First Conveyance
“J. J. Powell to Graham W. Graham, deed in fee-simple form, dated October 24, 1918, recorded January 3, 1920, in Book U-4, at page 158. This deed purports to convey the fee-simple title to the whole of the Powell tract of land, and from the description it appears that all of the lands known as the Powell land actually contain approximately 400 acres, are bounded and described in this deed. A consideration of $1,100 is .expressed in this deed.
“Second Conveyance
“Graham W. Graham to Lillious L. Graham, dated October 24, 1918, recorded on November 20, 1920, in Book Xl4, at page 237, conveying all of the Powell tract of land and described as 150 acres, more or less; but it appears from
“Third Conveyance
“J. A. Lewis, sheriff, to Graham W. Graham, sheriff’s deed in fee-simple form, dated November 4, 1918, recorded November 12, 1918, in Book N-4, at page 56. This deed resulted from the foreclosure of a mortgage given by W. C. Powell to Cooper Guano Company, and transferred to Dan W. Hardwick, the date of the mortgage being January 27, 1915, and recorded February 8, 1915, in Book 39, at page 317. The mortgage and the foreclosure proceedings appear in Judgment Roll 4428. The consideration for this deed is $181, and conveys 30 acres, more or less, of what is known as the Powell tract of land.
“Fourth Conveyance
“W. L. Bryan, C. C. C. P., to Graham W. Graham, fee-simple deed, dated June 17, 1920, and recorded June 17, 1920, in Book N-4, at page 150. This deed conveys 150 acres, and the description covers all of the lands, known as the Powell tract. The consideration is expressed as the sum of $700. This deed resulted from a partition suit, as appears by Judgment Roll 4502, in which John Powell was plaintiff, and Laura Powell et al. defendants.
“Fieth Conveyance
“G. W. Graham to L. L. Graham, fee-simple deed, dated June 19, 1920, and recorded November 20, 1920, in Book X-4, at page 238. Consideration is expressed as the sum of $2,000. The deed conveys 150 acres, more or less, -but the boundaries show that it covers all of the Powell tract of land which, from the testimony, contains approximately 400 acres.
“Dillious E. Graham to Benjamin' E. Hewitt, fee-simple deed, dated December 28, 1920, recorded January 18, 1921, in Book Y-4, at page 63. The consideration expressed in this deed is the sum of $10,000. This deed conveys 340 acres, more or less, but the boundaries cover the same lands apparently as the former conveyance of the Powell land described in deeds as 150 acres, more or less.
“Seventh Conveyance
“B. E. Hewitt to Dillious E. Graham, conveying by way of mortgage, dated December 28, 1920, recorded January 20, 1921, in Mortgage Book No. 58, at page 57; consideration, $8,000. This mortgage covers the same lands conveyed to B. E. Hewitt in deed described as sixth conveyance.
“Eight Conveyance
“B. E. Hewitt to E. E. Graham, fee-simple deed, dated August 23, 1922, recorded August 29, 1922, in Book C-5, at page 151, conveying 350 acres, more or less, for an expressed consideration of $1,000] the same being the identical Powell tract of land conveyed by Dillious E. Graham to Benjamin E. Hewitt in the sixth conveyance heretofore mentioned.
“Eor the purpose of determining the exact status of this tract of land (known as the Powell tract), it is necessary to inquire into the reason for the execution of these various deeds. It appears that all of them cover the same land or parts of the same land conveyed by Graham W. Graham to L. L. or Dillious E. Graham by the deed of date October 24, 1918. It is worthy of note that this first deed to E. E. Graham was executed on the same date as the deed of J. J. Powell to Graham W. Graham. Counsel for the defendants called attention to the fact that the deed of J. A. Lewis, sheriff, to Graham W. Graham, dated on November 4, 1918, resulted from the foreclosure of a mortgage over a 30-acre tract, being a part of the Powell tract of 150 acres. By re
“So, to sum up so far as the attack on the title of Lillious L. Graham is concerned, I conclude: First, that the testimony shows that the 24th day of October, 1918, is the correct date of the first deed of Graham W. Graham to Lillious L. Graham, and June 19, 1920, is the correct date of the second deed of Graham W. Graham to Lillious L. Graham, but that this second deed only conveyed some outstanding interest of the heirs of W'. C. Powell. Further, in this connection, the title acquired by Graham W. Graham at the partition sale vested in Lillious L. Graham immediately when Graham W.
“The Master found that so far as the deed of Graham W. Graham to Lillious L. Graham, dated January 13, 1915, and recorded January 16, 1915, in Book B-4, at page 55, was concerned, there was no evidence tending to show any right of creditors adverse to the conveyance of the 355-acre tract conveyed by his deed. I concur with the Master in this finding.
“Wherefore, it is ordered and adjudged that the Master's report, in so far as it finds in favor of the defendant Lillious
The reasoning and conclusions of his Honor, Judge Shipp, are entirely satisfactory to this Court, and his decree is ac-. cordingly affirmed.
It may be proper to advert to the error of the Master which controlled his decision. He did not pass upon the question whether the deeds of 1918, 1919, and 1920 were executed and delivered upon the dates which they bear, but conceived that as the Recording Act, Section 3542, Code, 1912 (Section 5312, Code, 1922), provides that where a deed or other paper required to be recorded is not recorded within 10 days after its execution, the recording “shall, from the date of such record, have the same effect as to the rights of all creditors and purchasers without notice as if the said deeds or instruments of writing had been executed and delivered on the date of the record thereof,” all of the circumstances
His Honor, the Circuit Judge, decided that the deeds were executed and delivered at their respective dates; the case is therefore, so far as recording is concerned, controlled by the case of Carroll v. Cash Mills, 125 S. C., 332, 118 S. E., 290, as the Circuit Judge held.
The question of the effect of the failure to record within the prescribed time upon the rights of creditors is quite apart from the question of fraud in the execution and delivery of the deeds. Although the creditor may not obtain any advantage from such failure to record, he may still attack the deeds for fraud, which the plaintiff in this case has done. The disposition of this feature of the case by his Honor is satisfactory.
The interesting question whether the deeds, executed in good faith, had been purposely kept from record, with a view of establishing a false credit with the plaintiff, and that thereby a fraud was committed 'upon it, has not been raised in the case. It is debatable whether the plaintiff is not now bound by its election to consider the deeds fraudulent. Ebner v. Haverty Furniture Co., 138 S. C., 74, 136 S. E., 19.
The judgment of this Court is that the decree appealed from be affirmed.