23 S.C. 251 | S.C. | 1885
The opinion of the court was delivered by
The pleadings are not in the case, but from the evidence and the statements of the parties, we gather substantially the following state of facts: Boston Cave died in 1880, having the legal title to three tracts of land, viz., the Hayes tract, 280 acres, the Brown tract, 181 acres, and the Thomas tract, 142 acres. He left a widow, Fanny Cave, and four sons by a former wife, viz., Alexander, David, Henry, and Jacob. He left a will by which he devised one-fifth of his estate to his widow Fanny, and the remaining four-fifths to his aforesaid sons. It appears that at the time of the death of Boston, the plaintiff, Simon Brown, held two mortgages on the aforesaid lands, one upon the parcel known as the Thomas tract, given to one Dowling, and assigned to him, and one upon the entire tract given to him. The testator was further indebted to him on note and open account, and to secure this indebtedness the four sons gave him a mortgage of their undivided interests in the land. The action originally was instituted to foreclose these three mortgages, and also to subject the one-fifth devised to Fanny, the widow, to the payment of the debts for which the sons had given their mortgage, and Fanny, as one of the devisees, was made a party. The adult defendants did not answer. It was referred to the master to ascertain the amount due, &c. He made his report, which was confirmed.
At this stage of the proceeding Fanny Cave put in an answer,
The cause came on for hearing before Judge Hudson, who found as matter of fact, “that Boston Cave and his four sons were the joint purchasers of the' several tracts of land involved in this controversy, although the title was taken in the name of the father. They labored in common and purchased the land in common, but mortgaged and contracted in the name of Boston Cave. There is abundant evidence to sustain this conclusion,
From this decree the widow, Fanny Cave, appeals to this court upon the grounds: l. Because the testimony does not prove the existence of a trust. 2. Because the testimony does not show that the purchase money, or any definite portion thereof, was paid by the alleged cestuis que trust at the time of the purchase. 3. Because his honor erred in permitting parol proof to show that the purchase was made for the benefit of, or on account of, the alleged cestuis que trust, they having made no payment at the time of the purchase, which is the foundation of such a trust. 4. Because his honor erred in holding, substantially, that after advances or funds subsequently furnished can, in the law, create a resulting trust. 5. Because there was no plain proof of the application of the funds of the party, for whose benefit the trust is sought to be raised, and a trust cannot be raised by construction merely. 6. Because the testimony of Simon Brown, a party in interest, was inadmissible to prove declarations and transactions between himself and the deceased, and his honor erred in admitting the same. 7. Because all the testimony introduced to prove the trust, as well parol as written,
First. As to the exceptions concerning the admission of testimony, proof, &c. We do not see that it was error to admit the testimony of John A. Hays, who sold and conveyed with warranty one of the tracts of land. He was not a party to the proceedings, and had no interest in the determination of the action, whether Fanny Cave should have dower in the whole of the lands, or only in a part of it. Besides, he testified that he made the trade with the sons as well as with Boston. “A. C. Cave and the father told him they were acting for all the parties. They said they could not buy unless all the boys and the old man joined together.” The testimony of Simon Brown did not refer exclusively to “transactions and communications” with the deceased, Boston Cave, but also with his sons, who are still living, and to that extent the objection does not apply. He says : “A. C. Cave came to me and asked me to buy a tract of land which adjoined him for him and his brothers and father. This.is the land which I sold them for $1,000, and they paid me some cash. I did not deliver the title until the money was paid. Each of the boys and the old man brought me cotton — each one paying his share. When I sold the land they asked me to make the title to the old man and each would pay me $200, and they would divide it after the land was paid for,” &c.
As to the testimony of the four sons, which the judge excluded as not admissible under section 400 of the code. The respondents, in case it should be necessary, gave notice that they vtould insist that said testimony should have been received and considered by the Circuit Judge. Section 400 of the Code has certainly given risk to many difficult questions, and unless it is applied with careful consideration, the danger is that it may produce the very injustice it was intended to prevent. It is not clear that an action for dower (to which this seems to be reduced) can be said to be “prosecuted” by the widow as “executrix, heir
We have read all the testimony with care, and considering only that which was undoubtedly admissible, we concur in the findings of fact of the Circuit Judge that the sons and the father agreed to purchase, and did purchase, the lands together, each having an equal interest, and in pursuance of that agreement the titles were taken in the name of the father in trust for all of them, to the extent of their respective interests. The parol evidence alone established the existence of such agreement, and it was strongly corroborated by the conduct of the parties, and the very terms of the father’s will, which, seemingly in accordance with the terms of the agreement, gave to the aforesaid four boys four fifths of the lands and to his widow', Fanny, only his own share, one-fifth.
But it is contended that most of the testimony was parol, and being introduced to establish a verbal agreement, in conflict with absolute conveyances of land, should have been rejected under the statute of frauds. This case in several particulars is very much like that of Mims v. Chandler (21 S. C., 480), in which this court had occasion to consider the admissibility of parol evidence to establish the facts which will suffice for the purpose of raising a resulting trust, and also the particulars and circumstances of part performance which will take a case out of the statute of frauds. There is no doubt that a resulting trust, or the facts necessary to raise it, may be proved by parol; and we incline to think that the facts proved here made out such a trust in favor of the four sons as to their respective interests of one-fifth in the said lands. Each certainl}’’ paid his part of the purchase money, and it has often been said that the whole foundation of the trust is in the payment of the money.
But the objection is interposed that it does not appear that the four sons each paid a definite portion of the purchase money at the time of the purchase, which was necessary according to the
But if there should be any serious difficulty as to the proof to raise a resulting trust, it would seem that there can be no doubt that there was ample proof to take the case out of the statute of frauds by part performance. “It is well settled that the Court of Equity will enforce specific performance of a contract within the statute when the parol agreement has been partly carried into execution. The distinct ground upon which Courts of Equity interfere in cases of this sort is that otherwise one party would be able to practise a fraud upon the other.” 2 Story Eq., § 759; Mims v. Chandler, supra. We think the possession of the parties of their respective shares with the knowledge and consent of Boston, the improvement and cultivation of the same without notice or warning, considered in connection with all the circumstances, and especially the payment of the purchase money, were sufficient evidence of part performance to take the ease out of the statute. The agreement alleged by the respondents was proved. They had the equitable right to have specific performance of that agreement, and, if they chose, partition, giving to each his share in severalty. Johnson v. Gilbert, 13 Rich. Eq., 42.
The only remaining question is whether this equity was sufficient to bar the widow’s right to dower, which is generally considered a legal right. All the deeds had been executed on De
The judgment of this court is that the judgment of the Circuit Court be affirmed.