De Hihns v. Free, 49 S.E. 841

The opinion of the Court was delivered by

Mr. Justice Jones.

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 find ings 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.

1 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, 56 S. C., 83, 34 S. E., 22. The lease and agreement proven in this case between the plaintiff and Mi', and Mrs. Free, under whom defendants claim as heirs at law, show a relation of the parties, to the property inconsistent with the resulting trust claimed. It must follow that defendants could not assail the lease and agreement by parol evidence in conflict therewith, and that the exclusion of such evidence and the withdrawal of such issue from the jury was proper.

2 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., 70 S. C., 8, wherein this Court held that the trial Judge has power to exclude evidence in support of irrelevant allegations allowed to remain in a pleading.

3 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.

4 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.

The exceptions are overruled, and the judgment of the Circuit Court is affirmed.

Case Details

Case Name: De Hihns v. Free

Court Name: Supreme Court of South Carolina

Date Published: Dec 6, 1904

Citations: 49 S.E. 841; 70 S.C. 344; 1904 S.C. LEXIS 187

Court Abbreviation: S.C.