50 S.C. 120 | S.C. | 1897
The opinion of the Court was delivered by
On the 1st day of January, 1863, John G. King by his deed conveyed to P. G. Benbow a tract of land, situate in Clarendon County, in this State, and containing 500 acres, more or less, in trust, for his wife and children, in these words: “In trust, for the sole and separate use of Ann R. Benbow during the term of her natural life, or widowhood, and from and after the death or marriage of the said Ann R. Benbow, in trust, for the use of such child or children as may be alive at her death or marriage, until they should arrive at the age of twenty-one years, or should marry, and then to be forever discharged of the trust herein expressed.” This deed was duly recorded in the office of the register of mesne conveyance for Clarendon County on the 20th day of February, 1867. In the year 1867, or 1868, the said P. G. Benbow filed his petition for voluntary bankruptcy in the United States District Court for the State of
To this complaint David Levi made answer as follows:
I. Por a first defense: That he denies each and every allegation contained in each and every paragraph of the complaint.
II. For a second defense: That neither the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises described in the complaint within ten years before the commencement of this action.
III. For a third defense: That at the time of the commencement of this action the defendant was, and still is, seized in fee of the premises described in the complaint, except 109 acres thereof, known as swamp land, which is owned by other parties not connected with this action.
IV. For a fourth defense: That the cause of action as stated in the complaint did not accrue within ten years before the commencement of this action.
V. For a fifth defense: That the defendant, his grantors, and their grantors and ancestors, have held and possessed the premises described in the complaint adversely to the pretended claim of the plaintiff for ten years last past before the commencement of this action.
VI. For a sixth defense: That the defendant, his grantors and their grantors, and ancestors, have held and possessed the premises described in the complaint adversely to the pretended claim of the plaintiff for twenty years last past before the commencement of this action.
VII. For a seventh defense: That the defendant and 'those under whom he claims entered into possession of the premises described in the complaint under claim of title exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises described in the complaint, and that there has been a continued occupation and possession of said premises included in said instrument by defendant and those under whom he claims for more than ten years preceding the commencement of this action.
IX. For a ninth defense: That the cause of action stated in the complaint did not accrue within twenty years before the commencement of this action.
X. For a tenth defense: That the plaintiff cannot now have or maintain this action. 1. Because P. G. Benbow, the alleged trustee referred to in the complaint, commenced and prosecuted this action in this Court against Henry B. Richardson and others, and that the said action was terminated at the October, 1880, term of this Court, by a judgment of nonsuit against the plaintiff, and that judgment was duly entered thereon by the clerk of this Court, on the 21st day of October, 1884, for the sum of $145.05, the costs of said action, which sum of money is yet unpaid; that the said action was for the recovery of the tract of land described in the complaint, and that said Henry B. Richardson was then in possession thereof, and had been for more than ten years previous thereto in possession of the same, holding it adversely to ’ all the world, claiming the same as his own, and that such claim was fully recognized and acquiesced in by said P. G. Benbow for more than ten years before the commencement of said action, and that said Henry B. Richardson conveyed the said land to E. W. Moise, who thereafter conveyed the same to this defendant, and by reason of the facts so stated, this defendant has succeeded to all the rights which the said Henry B. Richardson and E. W. Moise had against the said P. G. Benbow, trustee. 2. Because the said P. G. Benbow commenced another action, as trustee, against the said Henry B. Richardson and others for the recovery of said land described in the complaint, and that said action was stricken from the dockets of this Court, without objection from the said P. G. Ben-bow, trustee, and plaintiff, at the Octobei, 1884, term of this Court, and judgment was entered in this Court against the said P. G. Benbow, as trustee, for $65 costs incurred in said action, and that the said sum of money is unpaid; and
XI. Bor an eleventh defense: That this defendant is informed and believes, and upon such information and belief alleges, that no trust was ever created by said deed in contemplation of the parties thereto; that the trust was never accepted and never acted upon, but that (the) premises described in the complaint was the property of P. G. Benbow, mentioned in the complaint; that all parties so interested so treated the said property; that the same was assigned as part of his estate in bankruptcy by the said P. G. Benbowr, and was bought at a sale thereof by one of the defendant’s grantors, and that the plaintiffs have no interest whatever in the premises.
E. W. Moise having been vouched, without objection, filed the following paper: “And now comes before the Court E. W. Moise, and informs the Court by way of suggestion: 1. That he has been vouched in the cause above stated. 2. That the plaintiff has no legal right to bring this suit, which is the third action brought in this Court to recover the same piece of land described in the complaint, for the benefit of and (in) behalf of the same parties. (See Columlumbia Water Power Company v. Columbia Land and Investment Company, 47 S. C., 117.) Because the costs of the two former actions have not been paid, and because this action is brought more than two years after the said first action was ended by judgment of nonsuit. Wherefore, it
Judge Benet passed the following order: “When this case was called for trial, it was suggested to the Court that there has been commenced two actions for the land in dispute, and that the costs of both of said actions were unpaid. Upon hearing the suggestion, it was admitted in open Court that Pinckney G. Benbow, as trustee, has twice brought suit for the land; that the first of said actions was terminated in 1880 by order of nonsuit, and the second in 1884 by an order dismissing the complaint, and all the costs are still unpaid. These actions were against Henry B. Richardson, and his tenants holding under him. Henry B. Richardson conveyed the land to E. W. Moise, who conveyed it to the defendant. Under section 98 of our Code, it is clear that Pinckney G. Benbow, as trustee, could not maintain this action; had he succeeded in the actions brought, the recovery would have been for the benefit of Ann R. Benbow, and the others interested under the trust deed, and the plaintiff here cannot now claim any higher or greater rights than Pinckney G. Benbow could now claim if living. It is, therefore, ordered, that the said complaint be, and the same is hereby, dismissed.”
From this decreetal order Ann R. Benbow has appealed on four grounds, as follows: 1. It was error for the Circuit Judge to hold that the two actions brought by the trustee, and nonsuits suffered by him among different parties, barred the rights of Ann R. Benbow, and the case should have gone to trial. 2. That the trust deed having been made previous to the Constitution of 1868, and Ann R. Benbow being the wife of the trustee, she could not bring an action until after the death of her husband, as the legal estate was out of her, and it was error for the Circuit Court to so hold and not go on with the trial. 3. That it appearing from
All the exceptions are overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.