15 S.C. 496 | S.C. | 1881
The opinion of the court was delivered by
The purpose of this action was to determine whether or not a certain deed, purporting to be a trust deed,
The complaint was filed by Fraser, as trustee, against Churchhill B. Jones and his family, and also Mrs. Davie, to have the nature of his interest and duties in regard to the trust properly defined and settled as against the grantor and the eestuis que trust. Mrs. Davie, answering, denied that the deed had been delivered. She contended that C. B. Jones being indebted to her, by judgment, in the sum of $6300, represented that he was unable to pay the debt, and proposed to settle it by paying $1500 — $500 in cash and the balance in three equal annual installments, at the • rate of eighteen per cent, interest; the credit portion to be secured- by bond and mortgage on certain real estate, and upon the payment of this sum she was to assign the-judgment for the benefit of Jones’ family; that afterwards Jones had titles to this real •estate, which he had proposed at first simply to mortgage, executed to her, and had its value, some $2475, credited on. her judgment. Upon this being done, she executed the deed of trust conveying the land to Fraser, but'with the distinct understanding that it was not to be delivered or become operative until the balance of the $1500, agreed upon as a compromise of her debt, was paid according to the agreement. In other words, she was to retain control of the land as a security for the full payment of the $1500, instead of the mortgage which was to have been given according to the first agreement. And, inasmuch as this sum had not been paid, the deed had not been delivered, and should not be recorded.
Jones contended that the deed had been duly executed and delivered at its date, and that it was a valid instrument; that the agreement in reference to the settlement of the judgment was an independent agreement, having no connection with the deed, and, therefore, the complaint should be dismissed.
The case was heard by Judge Mackey, who, sustaining this view of the controversy, ordered the deed to be forthwith recorded. From this judgment Mrs. Davie appealed. The Supreme Court reversed this judgment of Judge Mackey, and sus
Upon its return to the Circuit Court in December, 1878, Judge Aldrich ordered the case to be referred to J. J. Hemphill to make the inquiry directed in the opinion of the Supreme Court. In October, 1879, the report of the referee came in. In this report it was stated that the parties and the property were in such condition as that the trust deed could take effect in substantial compliance with the contract, and after allowing Mr. Jones credit for 'the sum of $701.40, derived from the sale of Jones’ property under the judgment of Mrs. Davie, since the agreement, he recommended “that Jones be allowed until the first day of December, 1879, to pay up the balance reported by him to be due, to wit, $1287. And upon his paying to Mrs. Davie, or her attorney, this sum, with the interest that might accrue thereon, and to the clerk of the court all costs and disbursements, that the trust deed be delivered and recorded, and the case ended.” Mrs. Davie excepted to this report on several grounds, one of which assailed the credit allowed by the referee, and the others contending that the agreement had expired by its own limitation and could not now be enforced.
Judge Hudson overruled these exceptions and confirmed the report of the referee. Judge Hudson interpreted the judgment of the Supreme Court, above referred to, to have settled the points raised in the exceptions as to the validity of the trust deed, and he held that the questions of law raised by the exceptions as to the consideration and delivery of the deed, and as to the time within which the contract was to be carried out, were not open for argument before him. The sole question, in his judgment, being whether the condition of the property and parties was such as that the contract, as established, could be substantially carried out.
From this judgment Mrs. Davie has appealed to this court; her appeal raisi ng, substantially, the two questions raised before
The history of this case shows that it is a hard case upon Mrs. Davie. Ten years ago she held a judgment upon Jones for over $6000. Jones was her nephew, or rather a nephew of her deceased husband. He had been unfortunate and was much embarrassed — his misfortunes, no doubt, growing out of the result of the late war between the states. Mrs. Davie was kind-hearted and indulgent, and seemed to sympathize deeply with her relative, and with a liberality almost unprecedented, yet, under the circumstances, in the highest degree commendable, she agreed to settle this large debt, secured as it was by judgment, for the small sum of $1500, giving a credit on the greater part of it in one, two and three years, the credit portion to be secured by a lien upon real estate.
The parties disagreed as to the understanding between them. Expensive litigation ensued, and Mrs. Davie is still- without payment, even of the small amount agreed upon as a compromise. If the questions as to the binding character of. the contract of compromise, and the validity of the deed then before the court had been an open question before Judge Hudson, much might have been urged against both. An agreement to take less than the whole amount for the whole, as a general rule, is a nudum pactum, and especially would this principle apply in a case where the debtor failed to comply promptly with the proposed reduction.' And if this position had been taken by Mrs. Davie at the proper time, it may be that she might have invoked the protection of this principle successfully. The time, however, to have claimed its benefit was at the former trial; but this she failed to do. The question which she raised then was not that an invalid agreement had been made, but that the agreement which Jones contended for was not the agreement which had been made. She claimed that the true agreement was the one
The court sustained her view of the case, and it is not surprising that the court should have declared that contract valid and binding. To this result she not only did not object but contributed. Under these circumstances we are constrained to hold that the former opinion of this court settled these questions,, and they are now res adjüdieata. Such being our opinion, we are compelled to say that Judge Hudson did not err in confining his jurisdiction of this case to the single inquiry contained in the order remanding the case to the Circuit Court, After it reached the Circuit Court under that order it was properly referred to a referee. He confined his examination to the inquiry submitted in the order, and reported that there was no obstacle in the way of the execution of the contract. This has been confirmed by Judge Hudson, and we think that this is an end of the case.
The last exception contests the credit allowed by the referee and confirmed by the court below. This credit is for $701.40. This amount was received by Mrs. Davie in this way: Jones-had a judgment on one Blackburn. Certain property of Blackburn was sold under the judgment, and when the proceeds of the sale reached the sheriff’s office Mrs. Davie levied on it, and had it applied to her judgment. We do not see how Mrs. Davie can claim this besides the $1500 which she agreed to take for her judgment. The court has decided that the agreement between them is to be enforced, and this sum must be credited on the agreement; otherwise, Mrs. Davie would receive $701.40 more than she had contracted to receive.
The judgment of this court is that the judgment of the Circuit Court be affirmed.
