28 S.C. 152 | S.C. | 1888
The opinion of the court was delivered by
The plaintiff, a judgment creditor of the defendant, William J. Patterson, brings this action for the purpose of subjecting a certain tract of land conveyed to the defendant, Rebecca Patterson, by one Robert H. Fleming, to the payment of his debt, upon the ground that the purchase money for said land was, in fact, paid by the judgment debtor, William J. Patterson, and the conveyance taken to his wife for the purpose of hindering and delaying his creditors.
The master, to whom the issues in the action were referred, found the facts to be substantially as follows: That some time in 1877 or 1878 the defendant, William J. Patterson, bargained with one Robert H. Fleming for the purchase of the land in question “for his wife and children” at the price of twelve bales of cotton, to be paid in three or four years; that the three minor
Upon these facts the master found as matter of law that while it was true that the general rule is that a father is entitled to the services of his minor children, at least so long as he supports them, yet he may waive such right, as he did do in this case, and the creditor of the father has no right to object, and that in this case there being no evidence of any intention to defraud any one by the contract for the purchase of the land, and the minor sons having been induced to make the cotton used in paying for the land, which the father was unable to do, by the promise that they should have the benefit of it, there was nothing in the transaction obnoxious to good morals or honest dealing, and therefore the master recommended that the complaint be dismissed with costs. Upon this report and the exceptions thereto the case was heard by Judge Norton, who, without considering the ground upon which the master based his conclusion, rendered judgment dismissing the complaint, “on the ground that there is no proof or allegation of nulla bona return by sheriff” on the execution on the judgment of the plaintiff against the defendant, William J. Patterson. From this judgment plaintiff appeals upon the ground that the Circuit Judge erred in dismissing the complaint upon the ground stated.
Inasmuch as it is conceded that “there is no proof of a return of nulla bona,” indeed, so far as we can discover, there was no evidence that any execution was ever issued on the plaintiff’s
The judgment of this court is, that the judgment of the Circuit Court be affirmed.