37 S.C. 214 | S.C. | 1892
The opinion of the court was delivered by
On March 16, 1868, Thomas G. Bobertson, in consideration of love and affection, conveyed a tract of land (440 acres) to hi', daughter, Mrs. Emeline Bembert. He was largely indebted at the time, and on the same day he confessed a judgment to his mother-in-law, Sarah S. Jones, which was regularly entered as of its date. On September 12, 1868, the debtor Bobertson conveyed to one Matthews twenty-eight and one half acres of other land, receiving therefor $2,000. This land was covered by the lien of the judgment of Mrs. Jones, and she, stating in writing as follows: “in consideration of my regard for the interest of my son-in-law, and my reliance upon the sufficiency of my security after the release,” &c., released the lien of her judgment on this land sold to Matthews.
On November 25, 1868, Mrs. Jones transferred her judgment to Thomas W. Bembert in trust, &c., and thereafter, on December 30, 1868, the administrator of one Cook obtained a judgment against the said Thomas G. Bobertson, and issued execution, which, after being renewed from time to time, was finally returned nulla bona; and, on January 18,1889, the plain
The action was not to marshal the assets of a deceased debtor, in which all creditors must be called in; but, so far as the pleadings show, for the benefit of the plaintiff alone. His honor, Judge Aldrich, heard the case, set aside the deed, ordered the land sold, and, after paying taxes, costs, &e., the officer was directed to hold the remainder of the proceeds of sale subject to the future order of the-court. He also ordered the referee to call in the creditors of Thomas G-. Robertson, to prove their demands, before Glenn W. Ragsdale, Esq., who was directed to take testimony as to the rank, priority, amount, and validity of the several claims presented, &c. The referee took the testimony, which is in the brief, and reported, that only two claims were presented: (1) the judgment of the plaintiff-balance $1,889; and (2) the judgment confessed to Mrs. Jones—balance $5,401.03; and the only contest was, which of them was to be paid first. The cause came on for a hearing by his honor, Judge Fraser, who held, that the fund in court should be first paid to the balance due on the j udgment of Mrs. Jones (that is, confessed to Mrs. Jones), and then the balance, if any, on the judgment of the plaintiff. From this decree the plaintiff appeals upon the following exceptions:
1. That his honor should have held, that the deed of Thomas G. Robertson to Emeline Rembert was not fraudulent and void as to the owners of the judgment of S. H. Jones, said judgment at the time of said conveyance constituting a first and exclusive lien upon the entire balance of the property, being at that time entirely sufficient to pay said Jones judgment.
2. That his honor should have held, that the release of the lien of said judgment on $2,000 of property of judgment debtor by Mrs. Jones, by a written instrument, wherein she declared her confidence in the sufficiency of her security by lien on the balance of the judgment debtor’s then remaining, estopped the said Sarah H. Jones and her assigns from attacking the
3. For that his honor should have held, that the plaintiff was entitled first to the proceeds of sale, he having been first in diligence in the discovery of the fraud, and in setting aside the fraudulent deed.
4. That his honor erred in holding, that the proceeds of sale, after payment of costs and fees, should be first applied to the payment of the Jones judgment.
5. That his honor should have held, that the Jones judgment could not share at all in the fund realized from the attack upon the validity of the Rembert deed.
6. That his honor should have held it highly inequitable to permit the owners of the Jones judgment to reap the fruits of annulling the Rembert deed, when they not only did not contribute to the victory, but resisted the fight, and acquiesced all the while in the validity of said deed.
7. That his honor erred in holding, that in equity the owners of the Jones judgment could not be required to credit the release of the property sold Matthews of the value of ‡2,000, before claiming the fund realized from the successful attack on the Rembert deed.
The decree of the Circuit Judge is so clear, that it is difficult to add any thing to it. The exceptions, taken together, seem to make three questions, which we will briefly consider in their logical order.
The industry of the plaintiff’s attorneys enabled him to cite to the court several cases from other States, which seem to favor his view, that the vigilant creditor, pursuing his claim, acquires a preferable equity, which attaches and becomes a special lien by the filing of his bill. We have not had access to all the cases referred to, but we incline to think that there must be some special provisions in the statutes of those States, authorizing a lien upon the filing of a creditor’s bill, or the cases in which the questions arose were in reference to mere choses or
The judgment of this court is that the judgment of the Circuit Court be affirmed.