Garvin v. Garvin

55 S.C. 360 | S.C. | 1899

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts of this case are set forth in the decree of his Honor, the Circuit Judge, which will be reported.

1 The first question raised by the exceptions is whether- the Circuit Judge erred in not finding that the mortgage was null and void on the grounds that the note for $1,000 was without consideration, and that both the said note and mortgage were executed for the purpose of hindering, delaying and defrauding the creditors of Robert Garvin, deceased. The following facts are established by the testimony: i. The plaintiff had notice at the time the notes and mortgage were executed that Robert Garvin was indebted to T. A. McCreery & Co. 2. No money was loaned by the plaintiff to Robert Garvin at the time the notes and mortgage were executed, and if the note for $1,000 had been given for advances thereafter to be made, it would have been more natural to have stated this fact than to have said it was for the payment of $1,000 — in five years after date, with interest from the time' the note was executed. 3. When the plaintiff was requested to give information as to the consideration of the mortgage, he did not state that the note for $1,000 was in consideration of advances thereafter to be made. 'He, however, at that time claimed that Robert Garvin was due him about $1,500, which he knew was not true. 4. The plaintiff still retains possession of the note for $1,000 after the amounts claimed to have been advanced were repaid. 5. In this action the plaintiff brought suit on both notes, when he knew that nothing was due on the $1,000 note. Furthermore, as evidence of mala tides, Robert Garvin in his answer admitted that both notes were valid and unpaid, when he knew that nothing was due on the $1,000 note. These facts force upon us the conclusion that the note for $1,000 was without consideration, and that both the said note and mortgage were executed for the purpose of hindering, delaying, and defrauding the creditors of Rob-, ert Garvin, deceased. Having reached the conclusion that the plaintiff and Robert Garvin were guilty of actual fraud in the execution of the mortgage, it cannot stand as security even for that part of the indebtedness that was bona tide. In the language of the books, “the Court is not bound to dis- ' entangle a web of fraud to ascertain if any good material be mixed in it.” Smith v. Stubbs, 3 S. C., 204; Bowie v. Free, 3 Rich. Eq., 403; Fryer v. Bryan, 2 Hill Ch., 56; Dickinson v. Way, 3 Rich. Eq., 412. The exceptions raising this ■ question are sustained.

2 3 The appellant, Robert Garvin, filed additional exceptions, imputing error to the Circuit Judge in his ruling as to the effect of the award made by the arbitrators, and in his finding that Emanuel Garvin was not the owner of the land mentioned in the award. The title of the land involved a legal issue which cannot be reviewed by this Court, at least so far as the findings of fact are concerned. This Court concurs with the Circuit Judge in his construction of the said award. But even if there was error on the part of the Circuit Judge, it was harmless, as he found from other and independent facts in the case, that Emanuel Garvin was not the owner of the land.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.