37 S.C. 369 | S.C. | 1892
The opinion of the court was delivered by
The object of this action is to set aside a deed made by the defendant, James Kea, to his co-defendant, Mary Ellen, and to subject the land thereby conveyed to the payment of a debt due by said James Kea to the plaintiff, upon which judgment was obtained subsequent to the execution of said deed. The plaintiff, in the same paragraph of his complaint, charges both actual and constructive fraud. The answer of the defendant, Mary Ellen, while denying the fraud charged, sets up the statute of limitations, and also alleges that the land conveyed by the deed was the homestead of her co-defendant, James Kea, and, therefore, not liable
From this judgment plaintiff appeals upon tbe several grounds set out in tbe record, which practically raise two general questions: 1st. Whether there was error in sustaining tbe plea of the statute of limitations. 2d. Whether there was error in bolding that tbe land in question constituted a part of James Kea’s homestead.
A brief statement of tbe facts, as they appear in tbe “Case,” will be necessary for a proper solution of these questions. It seems that said James Kea was indebted to tbe plaintiff on a note executed 2d of December, 1869, upon which tbe plaintiff recovered judgment on tbe 14th of February, 1877, and that tbe execution issued thereon was returned wholly unsatisfied on tbe 23d of February, 1882, and that this action was commenced on tbe 17th of October, 1885. In the meantime, however, to wit, on tbe 4th of January, 1873, tbe said James Kea conveyed tbe land in question to tbe defendant, Mary Ellen, who was then tbe wife of Kincbon Kea, tbe son of said James Kea; but be having died, she subsequently intermarried with one Parker, and tbe action was continued in her name, as it appears in tbe title of tbe case. It seems that James Kea at one time lived upon tbe land in question, but several years before tbe war removed to an adjoining tract of land belong
The deed to her purports to be in consideration of love and affection, as well as the nominal sum of fifteen dollars, though James Kea says in his testimony that the understanding with his son was, that he was to pay two hundred and fifty dollars, which they estimated to be one-half of the fair value of the land, and Mrs. Parker, in her testimony, says that a bale of cotton, which yielded upwards of sixty dollars, was delivered to James Kea by her former husband as a payment on the land, and not as rent, as James Kea had testified. This deed, though executed in 1873, was not recorded until the 4th of March, 1881. The plaintiff testified that he knew nothing about the execution of this deed until some time in 1885, when, owing to some rumors that he heard, he examined the register’s office, and finding the deed on record, he soon afterwards commenced this action. But Mrs. Parker says, that, in 1873, she informed the plaintiff that her father-in-law had given her the land, and, therefore, she paid no rent for it. This, however, the plaintiff denies in his testimony. There seems to be no dispute as to the fact, that when the deed in question was executed, James Kea owned no other land; and this fact seems to have been known to plaintiff, who was a near neighbor. There is no evidence, so far as we can discover, that the land in question was ever used as an appurtenance to the land to which James Kea removed—-his wife’s place—and, on the contrary, it was rented, according to his version, to his son before it was conveyed to the son’s wife.
There is nothing in the decree to indicate the grounds upon which the Circuit Judge rested his conclusion that there was actual fraud, and it is somewhat difficult to discover from the testimony the grounds for such a conclusion. All that there appears is that James Kea, being indebted at the time to a small amount, conveyed to his daughter-in-law soon after her marriage the tract of land in question, being all of the land then owned by him, by a deed purporting on its face to be a voluntary deed, but which, there is testimony to show, was, in fact, based upon a valuable consideration. There is no evidence that James Kea had been sued, or was even threatened with suit at the time, or that he ever made any declaration of any intent to defeat, or delay, or hinder his creditors, or ever said anything from which such an intent could be inferred. Nor
Now, it is somewhat difficult to reconcile these two statements of the rule, inasmuch as the former seems to imply that mere knowledge of the fact that a fraud has been committed, without a knowledge of the facts which would establish such fraud, or the means by which such knowledge of the facts might be acquired by the use of due diligence would not be sufficient, while the latter seems to imply that mere knowledge that a fraud had been committed would be sufficient. But, fortunately, we need not attempt to reconcile these apparently conflicting statements of the rule, as the whole matter has been taken out of the domain of judicial exposition, and made the subject of express legislative enactment, by section 112 of the Code of Procedure, and Mr. Justice McGowan, as the organ, of this court, in construing that section, in the case of Beattie v. Pool, 13 S. C., 379, has expressly approved of the rule as laid down in Shannon v. White, supra. It seems to us, therefore, that the Circuit Judge erred in concluding “that plaintiff had notice, actual or constructive, more than six years before the com
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for the purpose of carrying out the views herein announced.