44 S.C. 378 | S.C. | 1895
The opinion of the court was delivered by
The plaintiff in the case, Frances O. Brown, commenced an action on the 7th day of October, 1892, against the defendants, George D. .Brown and Lucinda O. Moseley, for the purpose of having certain real estate, in which her deceased husband, J. W. R. Brown, owned an interest at the time of his death, set apart to her. The husband, Brown, died intestate on the 25th day of August, 1891; leaving surviving him, as his only heirs at law, and entitled to distribution of his estate, his wife, the plaintiff, Frances O. Brown, and his brother, the defendant, George D. Brown, and his sister, the defendant, Lucinda O. Moseley. The plaintiff, in her complaint, alleges that on the 25th day of May, 1883, her husband, J. W. R. Brown, granted and conveyed to her absolutely in fee simple a one-third interest in the tract of land herein sought to be partitioned, and prays that the same may be set apart to her. The answer of the defendants denies the execution of this deed of conveyance; alleges that the same was without consideration, and assails it affirmatively, upon the ground that it was procured by the plaintiff first abandoning the home of her husband, and then, whilst living separately from him, by means of duress, threats, and promises to return home, extorted from him the execution of the alleged conveyance, and that by reason of said abandonment of her husband’s home, and the said duress, threats, and promises to return, the said J. W. R. Brown was, for the sake of peace in his family, forced to make the said conveyance, the same being without
At the November term (1894) of the Court of Common Pleas for Newberry County, the following issue was submitted to the jury: “Is the deed set out in the complaint, a valid and effectual conveyance of the estate which it purports to convey?” After hearing the testimony in the cause, and under the charge of the presiding judge (the Honorable T. B. Fraser), the jury answered the said issue in the affimative, and the presiding judge rendered a decree in which he concurred in the. finding of the jury; and held that the plaintiff was entitled to have set apart to her a one-third interest and estate in the lands described in the complaint, less certain parcels which had been alienated in the lifetime of the plaintiff’s said husband. The decree further provided that the defendants pay the costs of the action accruing upon the said issue, raised by their answer, together with the witness fees and the costs of taking testimony on said issue; that the rest of the costs be paid by the plaintiff and the estate of J. W. R. Brown, one-third thereof by the former and two-thirds by the latter.
The defendants have appealed to this court upon the following exceptions: That the presiding judge erred in charging thejury: (1) “That the words, ‘support and maintenance of the wife,’ is a sufficient consideration expressed in the deed, by which the land in question was conveyed by the husband to the wife. (2) That the seal of the deed itself was prima fade evidence of consideration; and if no consideration is expressed in the deed at all, that the seal will be sufficient consideration. (3) That the burden of proof, when the deed was made by the husband to the wife, and was attacked on the ground of undue influence and duress exercised by the wife, was upon the defendants, heirs at law of the husband, who attacked the deed. (4) That the statute of limitations for six years ran against the defend
The judgment of this court, therefore, is, that the judgment of the Circuit Court be affirmed.