49 S.E. 841 | S.C. | 1904
December 6, 1904. The opinion of the Court was delivered by The decree of the Circuit Court and the exceptions are reported herewith, and reference may be had thereto for the facts of this case and the specific points involved in this appeal. No exceptions are taken to the findings *356 of fact upon which the decree rests and this Court is satisfied that the conclusions reached are sound and just, and it is not deemed necessary to review all the reasons assigned.
The chief reliance of appellants in resisting the relief sought by respondent was their claim of a resulting trust. A resulting trust arises by implication in the absence of evidence of a contrary intent, and cannot arise when an express agreement in writing shows a contrary intent. Perry on Trust, sec. 124; Manning v. Screven,
The contention of appellants, that the evidence offered was proper, because the answer alleged a resulting trust and the allegations had been allowed to remain, is fully met by the case of Martin v. Seaboard Air Line Ry.,
The refusal to allow the defendants to amend answer so as to plead the statute of limitations, was within the discretion of the Court, and no abuse of discretion appears. The amendment was proposed during trial, and its refusal deprived defendants of no substantial right.
We are entirely satisfied with the conclusions of the Circuit Court, that this action is not one practically in foreclosure of a mortgage, but is one in the nature of an action for specific performance of a contract under seal based upon good consideration to convey the premises upon the performance of certain conditions precedent. *357
The exceptions are overruled, and the judgment of the Circuit Court is affirmed.
