36 S.C. 49 | S.C. | 1892
The opinion of the court was delivered by.
This action was commenced in the name of David E. DuRant, as trustee, plaintiff, against Isabella M.
The action came on for trial before Judge Aldrich and a jury. Verdict was rendered for plaintiff for the land in dispute. After'" entry of judgment thereon, the defendant appealed on the following grounds:
1. For that his honor erred in ruling as competent, over the objection of defendant’s attorneys, the testimony of Mrs. Rachel M. DuRant as to a conversation of the said Rachel M. DuRant with one Giles Carter.
2. For that his honor erred in refusing the motion of defendant’s attorneys that the action be dismissed, after the plaintiff testified that he neither instructed nor authorized this action to be brought.
4. That his honor erred in not charging the jury that the facts proved were conclusive that the deed of Mary Carter to John 0. DuRant, trustee, was fraudulent and void, unless they believed that such facts were satisfactorily explained.
5. That his honor erred in not granting defendant’s motion for a new trial as there was no evidence to support the verdict.
6. For that his honor erred in charging the jury as matter of law, “If the Crane judgment existed prior to the execution of that deed” (deed of Mary Carter to John 0. DuRant, trustee) “and that deed was executed for the purpose of defrauding or delaying that claim of Dr. Crane and nothing else, why, it is a fraudulent deed.” . ■ . ■
7. For'that his honor .erred in charging the jury as matter of law, “If you find that this judgment’.’ (referring to the judgment of Brown, Winn & Co.) “was in existence prior to the execution of the deed” (deed of Mary Carter to John 0. DuRant, trustee), “and that this deed was executed to defraud or delay that claim, then it was fraudulent, and gave away the legal rights of the just creditors of Mary Carter.”
8. That this court should order a new trial in this case, because the foreman of the jury came into open court and stated to the judge that the jury could not agree upon a verdict; the judge said, You have all next week to agree; go back-to your room.
The relation of trustee importing such serious responsibilities to such a one as assumes the office, or to one upon whom it is devolved by operation of law, it does seem that he has the right of being consulted before an action is brought in his name as such trustee, and not only so, but that he should control such suit in the employment of his attorney' and otherwise. To recognize the right of a cestui que trust to bring an action in his name without his direct authority therefor, is an unwise interference with his office, and is not sanctioned by the law. Among other difficulties produced thereb}*, the expense of litigation, costs, and counsel fees, may eat up the corpus of the trust estate. In the case at bar, we would censure the parties for nothing more than a violation of the letter of this rule, for although the trustee here was not consulted at the inception of the litigation, he was consulted just after it was begun, and did not refuse his assent. As a witness here, he said he supposed the suit would have to be brought. Besides he does not, a;s trustee, formally 'complain to the court
• We can and do appreciate the awkward position in which the plaintiff, by no fault on his part, occupies in this case. At the instance of his father, and to further the interest of the family of Mr. Reese DuRant, the husband, he did help to procure Edgarton and Parker to buy this identical land at a price that put $1,800 into the hands of such husband, who, according to the testimony, “is a good provider for his family.” No doubt he resented very keenly the necessity of having himself placed, so to speak, in the unenviable position of procuring to be done, as entirely proper, something that it is now sought to be undone as a palpable wrong. We hope that it will be a consoling reflection to such trustee, that he never dreamed of’ such a result. We overrule the'exception, but very reluctantly.
But it will be contended, that if it was surrendered, such surrender took place before Mrs. Rachel M. DuRant had the right to speak; that Mrs. Carter did not die until 1871, and the property had been surrendered before that. Grant this, and what difference does it, make now that sMrs. DuR-ant seeks to set up. the deed of September, 1866, of Mrs. Carter as the basis of her rights here ? If it was a fraudulent deed, it was void at its execution and ever since that time. The Circuit Judge here fails to grasp the situation of the parties when he speaks in his charge that “If the Crane judgment was obtained before the deed, and that deed was executed for the purpose of defrauding or delaying that claim of Dr. Crane, and nothing else, why, it is a fraudulent deed.” Of course, the Crane judgment was obtained after the deed. The deed was made in 1866, and the Crane judgment was obtained afterwards. The judgment is not the debt. It is only a remedy
7. This exception is similar in letter and spirit to that we have just considered, numbered “6.” It is greater error here, because this debt was created in 1860. It must be sustained.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the action remanded to the Circuit-Court for a new trial.