6 S.C. 209 | S.C. | 1875
The opinion of the Court was delivered by
Ellen L. Brown, a widow, departed this life without issue on the day of April, 1871. On the 28th day of the preceding November she conveyed, by deed, certain named personal securities to James M. Brown, Sr., her father-in-law, in trust, to receive the dividends, income and profits thereof, and to pay the same to her during her natural life, and from and after her death to transfer, assign and deliver, free from all trusts, “the said choses in action and stocks to Joseph T..Brown, the youngest son of the said James M. Brown, Sr., or his legal heirs if he shall predecease her,” with power to the said trustee at all times to dispose of or sell any of the said securities and invest the proceeds in such real and personal property as he may deem most beneficial to the parties in interest.
On the 29th April, 1871, Henry K. W. Flinn, a brother and distributee of the said Ellen L. Flinn, filed a complaint, in which, after asking the interposition of the Court for the protection of the property covered by the said deed, as well as any other belonging to the deceased in the hands of the said James M. Brown, Sr., he prayed that the said deed might be declared to be fraudulent, null and void. It presented two grounds upon which it claimed to avoid it:
1. That the said Ellen L. Flinn was of unsound mind at the time of its execution.
The relief sought by the plaintiffs in their proceeding is through the equitable jurisdiction of the Court. It is of that character which can only be claimed in a Court of chancery, where such a Court exists as a separate and distinct organization from the Common Pleas. If the Constitution of 1868 had not conferred equity jurisdiction on the Court of Common Pleas, but had retained the Court of Chancery, with all the high and exclusive power of administration which had before attached to it, the plaintiffs could have had no remedy in any other jurisdiction. The subject matter of the suit, looking to the end it proposed and the character of the relief which it claimed on behalf of the plaintiffs, constituted it “a case in chancery,” as distinguished from one at law, and its mode of trial must be in conformity with the rules and course of procedure prescribed for the trial of “ cases in chancery.” — See Sullivan vs. Thomas, 3 S. C., 547.
The issues made by the pleadings were triable by the Court, which, however, under Section 277 of the Code, had the power “to order the whole issue, or any specific question of fact involved therein, to be tried by a jury.” By the decree it appears “that the case was submitted to a jury,” and we are, therefore, to conclude that it was by the order and direction of the presiding Judge.
As the case was one in chancery, it was determinable by the Court, and the parties were entitled to its judgment, both on the questions of -fact as well as of law involved in the issues. The verdict of the jury is not to be accepted as the conclusion which is
No objection appears to have been submitted on the part of the appellants as to the new issue allowed to be madé by the introduction of evidence as to alterations and additions to the deed. If there had been no error in the charge of the jury in regard to the effect they were to have upon the deed, the appellants would have been without remedy in this Court. We are, therefore, to consider the issue in relation to them as if it had been made directly through the pleadings.
The words in the deed which did not appear to be in the handwriting of the original draftsman, and which were the additions referred to, were, after the words “stocks following,” “as well as my other personal property not named,” and in the habendum, after “and stocks,” these words: “and other property not named.” The Judge charged, in regard to them, as follpws: “If the additions to the deed were made by James M. Brown, Sr., after its execution, under all the circumstances, it would render it void.” It will be remembered that it is a trust deed, of which the said Brown is the trustee, and the question involved, and the only one we propose to pass upon, is, whether additions by a trustee to a deed conveying property to him for the benefit of another, even with a contingent interest to him, avoids the deed ab initio f
The familiar principle upon which equity sometimes proceeds to raise a constructive trust is here actually interposed to effect the destruction of an express trust.
Where an executor couceals or destroys a will, the legatee may compel him to answer for the interest which was bequeathed to him; or where a deed is destroyed and the contents proved, the party shall have the benefit of it. — Hill on Trustees, 151.
■Here it is claimed that the wrong of the trustee of an express trust can defeat the interests of those for whose benefit the property was conveyed to him. The proposition is altogether inconsistent with the object intended to be accomplished by the deed and with the duty of the trustee, whose province it is to execute its expressed terms and conditions.
The conclusion which we have reached on the question directly raised as to the avoidance of this deed by the act charged against the trustee is not affected by the general rule applicable to an alteration of an instrument in a material part by a party to it. Brown is not a party to this deed in the proper sense of the rule. The beneficiary here was the donor for her lifetime, with remainder of the whole property to one then and still an infant. A party may lose all his interest by making an alteration in a deed with a
Whatever contingent interest Brown may possibly have had during the lifetime of the said Ellen L. Brown is lost by her death, Joseph T. Brown surviving, and it is not necessary, therefore, to consider what he is to forfeit, or who is to be benefitted by the alterations in the deed charged to have been made by him.
■ The instruction to the jury was erroneous. It affirmed that the additions to the deed, if made by the said James M. Brown, Jr., after its execution, under all the circumstances, would render it void, and then the verdict of the jury, that it “was void,” is accepted by the Court as equivalent to its never having been valid, never existing, and never conveying any title from the donor. How can we undertake to say that the verdict was not in direct response to the proposition of law involved in the charge as to the additions to the instrument?
The particular issue was submitted to the jury as a material one for their solution, and if there was error in law in the instruction in regard to it, the verdict should have no controlling influence on the judgment of the presiding Judge. That “the verdict should be regarded as a response to the allegations in the pleadings, and there is no allegation of any alteration,” as contended for by one of the counsel for the respondents, would not be consistent with justice and right.
The respondents (the plaintiffs below) preferred the charge— insisted on it as avoiding the deed — and the Judge submitted it to the jury as a point in issue on which they were to pass, precisely as if made by the complaint and answer. To say now that it could not have entered into the verdict because not of the issues raised by the pleadings, would be to use it while it promised benefit and to discard it when it could not render more.
It is-ordered that the judgment below be set aside and the case remanded to the Circuit Court for hearing.