37 S.C. 285 | S.C. | 1892
The opinion’ of the court was delivered by
The two actions, though begun separately and at different times, were tried together on the Circnit, and have been so heard in this court. They came on for trial before his honor, Judge Witherspoon, in the Court of Common Pleas for Fairfield County, at the fall term, 1890, upon the pleadings and the testimony as taken and reported by Henry N. Obear, Esq. The decree was filed by Judge Witherspoon on the 31st December, 1890, and being in favor of the plaintiff in each case, the defendants have appealed. The questions raised
1. That his honor erred in finding, as a matter of fact, that there was not sufficient evidence as to the execution and loss of the original trust deed to admit of secondary evidence of the same, said declaration of trust having been introduced in evidence by plaintiff, and without objection from any of the defendants, and the execution and loss of the original having been established by the undisputed testimony in the cases.
2. That his honor erred in finding, as a matter of fact, that Stephen Gibson was in possession of 1,500 acres of the land described in deed of Henry A. Gibson to Stephen Gibson, of date November 21st, 1876, at the time of the commencement of the suit, while it is beyond dispute in the testimony that 300 acres of said 1,500 acres were conveyed away by Stephen Gibson to defendants, W. F. Gibson and Martha Gibson, before the commencement of either of said actions, and for a valuable consideration.
3. That his honor erred in his finding of fact, that in the execution of the deed of November 21st, 1876, Henry A. Gibson and Stepheu Gibsou intended to defeat any right of dower which the plaintiff, HattieS. Brooks, might have acquired in the land conveyed as the wife of Henry A. Gibson, whereas he should have found that said transfer was made in pursuance of negotiations which antedated the engagement of the plaintiff (Brooks) with Henry A. Gibson, and in pursuance, further, of an agreement existing between the said Stephen Gibson and Henry A. Gibson, without any reference to the alleged approaching marriage, aud without any knowledge whatsoever on the part of said Stephen Gibson that the plaintiff (Brooks) and Henry A. Gibson were under contract to marry.
4. That his honor erred in his further finding of fact, that Stephen Gibson, in his memorandum of the original trust agreement, practically admitted knowledge of said alleged contemplated marriage, whereas it is respectfully submitted that no such inference should have been drawn from said declaration of trust.
6. For that his honor erred in declaring, that plaintiff Brooks is entitled to dower in 1,500 acres of land described in the complaint, whereas he should have held, that Henry A. Gibson, not being seized of any of these lands at any time during coverture, plaintiff could have no dower rights in any of the premises; and that even if dower rights could attach at all, could only attach to such lands owned by Stephen Gibson at the time of the commencement of the suit, and could in no manner affect the 300 acres conveyed by the said Stephen Gibson to defendants, W. P. Gibson and Martha Gibson, for value, and before the commencement of the action.
7. For that his honor erred in holding, that plaintiff Brooks was entitled to an accounting for one-third of the rents and profits since 16th September, 1882.
8. For that his honor erred in holding, that it was immaterial whether the deed of Henry A. Gibson to Stephen Gibson, of date November 21st, 1876, was voluntary or for a valuable consideration.
9. For that his honor should have held, that plaintiff Brooks had elected to take as beneficiary under the terms and provisions of said declaration, in lieu of any and all claim of dower, and had, during the whole period of her widowhood, enjoyed the benefits of said election, and that she could not at this late day claim dower rights, and bring her action to recover the same.
10. For that his honor should have held, that if said deed of November 21st, 1876, was intended to prevent plaintiff’s claim of dower, then the provision made for her in said deed of trust was unequivocally intended to be in lieu and instead of any and all claim of dower, and that plaintiff could not be permitted to enjoy all the benefits of said provision, made in said declaration of trust, until the termination thereof by the terms of said trust, and then sustain an action for dower in said premises.
11. For that his honor erred in holding, that the counter
12. For that his honor erred in holding, that the limitations over to the children of Sarah McMeekin, as to the 673 acres, was too remote, and that the plaintiff, S. Henry Gibson, is the owner of the fee therein.
It should be here stated, that the respondents gave notice that they would, at the hearing of these appeals, urge that the decree of his honor, Judge Witherspoon, should be sustained, because: 1. That, marriage being a valuable consideration, the plaintiff, Hattie S. Brooks, by virtue of her marriage to Henry A. Gibson, is entitled to the position of a purchaser, for valuable consideration, and, having had no knowledge nor notice of the deed of conveyance by Henry A. Gibson to Stephen Gibson until after the death of Henry A. Gibson, the same is null and void, as against her right to dower in the land in question. 2. That Stephen Gibson, and those claiming under him, are estopped by his acts and conduct in representing and permitting Henry A. Gibson, as long as he lived, to represent the legal title to the land in question to be in said Henry A. Gibson, and by his concealment of said deed until after the death of said Henry A. Gibson, from setting up said deed, to defeat the right of the plaintiff, Hattie S. Brooks, to dower in said lands.
In 1866, Stephen Gibson was possessed of a large, and presumably valuable, plantation, lying on both sides of Little Biver, in Fairfield County, containing more than 2,000 acres. On the 11th December, 1866, he confessed a judgment to Fisher & Lowrance, merchants, for $8,-153.17, with $Í6 costs, which, by operation of law, became a lien on all such plantation of lands. Under this execution, all the lands before named were sold by E. W. Oliver, then sheriff of Fairfield, on the 4th November, 1867, to Henry A. Gibson, at the price of something more than two thousand dollars, deed being made there
In 1875, Henry A. Gibson began paying attentions, with a view to marriage, to Hattie Mason, daughter of Washington N. Mason, who lived at the time, and has lived all his life, within four miles of the plantation of at first Stephen and afterwards Henry A. Gibson. Mr. Mason knew' of Henry A. Gibson being the owner of said lands. After Henry A. Gibson was engaged to be married, it was at first intended that the marriage should be solemnized within the first fifteen days of November, 1876, but owing to the political excitement in the first few days of November, 1876, it was postponed until 7th December, 1876, at which time the marriage was consummated. The young couple lived on the plantation, the young wife keeping the house for a few months, when Stephen Gibson married, and thereafter his wife kept the house, the young wife of Henry giving such assistance in household management as she desired. One child was borne by Mrs. Henry A. Gibson (the present
In either 1880 or 1881, it was announced to the public that on the 21st November, 1876, just sixteen days before his marriage, Henry A. Gibson had made a deed, whereby he conveyed his whole landed estate, absolutely, to his father, Stephen Gibson, on the following expressed consideration: “for and in consideration of the good will and affection and services rendered me by my father, Stephen Gibson, and of five dollars to me paid by Stephen Gibson.” The existence of this deed was alone known by Henry A. Gibson and Stephen Gibson; the one witness, Hayne McMeekin, testifies that the matter had been talked about between Stephen and Henry A. (his son) for about eighteen months before 21st November, 1876. On the 10th day of January, 1882, a deed was executed by Stephen Gibson, whereby he declared that in pursuance of an agreement in writing, made by him to his son, Henry A. Gibson, on the 21st November, 1876 (the same day on which the absolute deed from Henry to Stephen was made), but which writing has since been lost or mislaid, it was agreed that Stephen Gibson should hold all the lands so conveyed to him by Henry A. Gibson, “on condition, that after the payment of the lawful debts of the said Henry A. Gibson, same should be held by me for the use and benefit of the lawful issue of the said Henry A. Gibson; and on failure of such lawful issue, or in case of the death of such lawful issue without lawful issue,” &c., that a tract containing 673£ acres, described by meets and bounds, also a tract of 500 acres, of certain meets and bounds, should be held by Stephen after the payment of lawful debts of Henry A. Gibson; and his widow, should she survive him, should hold and possess the same during her widowhood, and at her death, or marriage, to go to the children of Sarah A. McMeekin. This trust deed was known to the widow Hattie in 1881. It was placed on record in 1882.
The widow Hattie is now Mrs. Hattie S. Brooks, having intermarried with one O. L. Brooks on 21st October, 1886. This
The child, S. Henry Gibson, by his guardian ad litem, alleges: That in case his mother takes dower in the lands of which his father died possessed, he, as the only heir at law of his father, Henry A. Gibson, will be entitled to the 1,500 acres of land in the possession of Stephen Gibson, under the alleged deed from Henry A. Gibson to said Stephen Gibson; that such deed being kept secret during the lifetime of plaintiff’s father, and being without consideration, must be deemed to have been made by his father, upon a secret trust, for the benefit of the said Henry A. Gibson and his heirs. He prays that Stephen Gibson may account for all the rents and profits of the lands of Henry A. Gibson since his death, especially of that part that Stephen claims to hold for this plaintiff, and that the rights of the plaintiff in the 6731 acres referred to may be ascertained and declared, and, also, that a receiver be appointed to hold the rents, &c.
To these complaints Stephen Gibson made answer, denying knowledge of the contemplated marriage of his son and plaintiff until after the deed of 21 November, 1876, had been executed ; that such deed was made for a valuable consideration,
It cannot be doubted that the facts embodied in the first two propositions have been answered by the findings of the Circuit Judge and against the appellants. This being the case, let us examine the third and fourth propositions. That a secret deed, executed by the wife in anticipation of marriage, would be avoided as against the husband, upon the ground that marriage with the husband is deemed a valuable consideration, and that such secret deed would be an actual fraud upon his marital rights, is now settled. Ramsay v. Joyce, McMull. Eq., 236; Manes v. Durant, 2 Rich. Eq., 406. In the latter case, Chancellor Harper, who delivered the opinion of the court, said: “In general, it is not questioned that a voluntary conveyance made by a woman in contemplation of marriage, without the knowledge of the intended husband, will be set aside as a fraud on his marital rights. It has been supposed that exceptions have been made in some particular cases, as when the object was to make provision for the children of a previous marriage. In the case of Ramsay v. Joyce (supra), I expressed my opinion, that there was no such exception. By assuming the burdens of the marriage relation, the husband is regarded as a purchaser for a valuable consideration of all the personal property in possession of his wife ,• and is there any doubt but that a voluntary conveyance, even to provide for children, is void against a subsequent purchaser for a valuable consideration and without notice?” Let it be remembered, in the instance of a husband, referred to in the case just quoted, that all right
Now, under the decision of our courts, marriage is decided to be' a purchase for a valuable consideration of any rights conferred by the law upon the wife, although no expression of such results are mentioned when the contract of marriage is entered into by her. In Rivers v. Thayer, 7 Rich. Eq., 144, Chancellor Dargan announced the proposition in these words: “Marriage is a valuable consideration. Some have considered it the highest known in law. None would say it was a lower consideration than money. There is nothing unreasonable in this. The great value of the consideration consists in this: that the wife surrenders her person and her self-dominion to the husband, and enters into an indissoluble engagement with him, foregoing all other prospects in life; and if the consider; ation for which she stipulates fails, she cannot be restored to the status in quo. She can have no remedy or relief.” In speaking of a wife’s right to require the personal estate of her husband to be applied to the liens under the statutes of our State fixing the order of application of such personal estate by the deceased husband’s personal representative, so as to let in her claim of dower, in the case of Wilson v. McConnell, 9 Rich. Eq., 513, the court used this language: “But this claim is met by a corresponding equity on the part of the widow, who is entitled to the position of a purchaser for valuable consideration against all but existing liens,” liens that existed before marriage:
We are enabled, therefore, to declare it to be the law, as
Here was a man of confessedly weak health—is it to be a matter of censure that the woman he asked to be his wife and the mother of his children, considered that he was the owner
5 As to the sixth ground of appeal. We are inclined to think that the appellants are entitled to a modification of so much of the Circuit decree as requires that the plaintiff is entitled to have her dower allotted from the 300 acres of land conveyed by Stephen Gibson to W. P. Gibson and Martha Gibson. It was known to the plaintiff in 1881, at least, that her husband had conveyed the whole tract of land to Stephen Gibson, yet she waited until 1888 to bring her action to set that deed aside. The “Case” here sets forth that it was in this way (through her suit) that these defendants, W. P. Gibson and Martha Gibson, learned of the secret vice in the deed of theii grantor. Tears before her suit was brought, these defendants, W. P. Gibsou and Martha Gibson, had paid value
As to the tenth ground of appeal. Our decision on the preceding points, especially that in the last considered, seems to us to dispose of the question here presented. It is, therefore, overruled.
It is the judgment of this court, that the judgment of the Circuit Court be modified, so as to exclude the 300 acres of land in the pQSsession of W. P. Gibson and Martha Gibson from any claims of dower therein of the plaintiff Brooks, and that in all other respects such decree be affirmed.