Burch v. Brantley

| S.C. | Mar 10, 1874

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The plaintiff, appellant, brought the action below to recover a tract of land purchased at sheriff’s ■sale, under execution against the defendant W. P. Brantley. The •'Complaint alleged that defendants were in possession, as she was unformed and believed, under a deed from W. P. Brantley to W. Hancock, as trustee, for tbe use of Eliza Brantley, which deed . she alleges was void, because made by the said W. P. Brantley for the purpose of defrauding his creditors, under the execution ■ of one of whom she purchased, and she prayed that the land be ■ surrendered, that the said deed to W. B. Hancock be declared -null and void, and that she recover $1,000 damages for the detention. The answer of defendants admitted that they were in pos- • session under the deed to Hancock, which they claimed to be a . good and valid deed, of which plaintiff had notice when she pur- ■ chased, and it denied the other allegations in the complaint.

Upon the call of the case for trial, the defendants interposed = an oral demurrer: “ That the complaint did not state facts sufficient to constitute a cause of action,” which his Honor T. B. Fraser, presiding, sustained, on the ground that the deed to Han-eock, relied on by defendants, could not be assailed by a creditor for fraud until after a return of nulla bona, which was not alleged ■in the complaint, and that the purchaser at sheriff’s sale, under judgment and execution, stood in no better position than the creditor.

The only legal question involved in the appeal is, whether the failure to allege a 'return of nulla bona in the complaint in this •case, before the land in question was levied and sold, was fatal— leaving the facts insufficient to constitute a cause of action, and, therefore, obnoxious to the oral demurrer interposed. We know of no case in which it has been held that it is necessary to allege in the complaint a return of nulla bona before a creditor can ■ assail a conveyance of his debtor for fraud. True, to vacate such •conveyance, fraud must be alleged and proved, but a return of ■nulla bona constitutes no part of the fraud. It is only evidence 'thereof, which, with other facts, may show the fraud. It is one of the probative facts by which the fraud may be developed, but it is no part of the essence of the fraud, and, consequently, not necessary to be alleged. The allegation that the deed was founded in fraud, opens the door to the introduction of all testimony within the possession of the assailing party bearing upon that question, and such testimony may be adduced without any specific allegation of such facts. The charge of fraud renders admissible all testimony necessary to sustain it.

There is nothing, either in Verner v. Downs, 13 S. C. 449, or Suber v. Chandler, 18 S. C. 526, in conflict with these views. In Verner v. Downs the court held, “ that a judgment-creditor is not entitled to a decree adjudging a deed of conveyance, made by his debtor, to be fraudulent until there has been return of nulla bona to an execution issued upon the judgment,” and there being no evidence in the case of such return, and the plaintiff not claiming that such evidence could be supplied, the complaint was dismissed. It does not appear that the allegation of a return of' nulla bona was made in the complaint, nor was the complaint dismissed because of such omission; but, on the contrary, it was dismissed because there was no testimony to that fact at the trial and, further, because there was no offer to supply the deficient testimony. The case evidently turned on deficiency of testimony at the trial, and not deficiency of allegations in the complaint.

Neither did the case of Súber v. Chandler rule anything as to-the necessity of alleging a return of nulla bona in the complaint.. The court said in that case: “ That if, at the time of the execution of the deed, a wrong was intended, the fraud is positive and active, and attaches to the act at that moment. If, however, no ■ wrong was then intended, and the conveyance becomes injurious to creditors afterwards, because at some future time the grantor’s property has failed to meet the just demands of his creditors,, whose claims existed at the time of the deed, then a passive and legal fraud is developed, which, attaching to the deed, renders it void, not from the beginning, but at that moment. * * * Hence, it has been often held, that a creditor, before attempting - to assail the conveyance of his debtor, must not simply be appar- ■ ently unable to secure payment otherwise, but must absolutely fail to do so after exhausting all legal effort to that end, by judicially establishing his debt and having a return of nulla bona by the sheriff upon an execution issued thereon.”

We think it was error to dismiss the complaint on the ground suggested. We do not understand that the Circuit judge held that a- purchaser at sheriff’s sale, in an action to recover the possession of a tract of land bought at such sale, could not assail for fraud a conveyance of the judgment-debtor, executed before the sale by the debtor, and in the same proceeding ask judgment that said deed be set aside and vacated. The practice of contesting deeds of this character in this way is of old standing, and was frequently pursued under the former system. Lowry v. Pinson, 2 Bailey 324; Thomas & Ashby v. Jeter & Abney, 1 Hill 380; Smith v. Oulbertson, 9 Rieh. 106; Richardson v. Rhodus, 14 Rich. 95. And the door to such end has been opened still wider under the code.

It is the judgment of this court that the judgment of the Cir-cuit Court be reversed.