37 S.C. 319 | S.C. | 1892
The opinion of the court was delivered by
The allegations contained in the complaint are substantially as follows: That the plaintiff, on the 15th of March, 1887, executed his bond to the defendant, secured by a mortgage of certain real estate, which bond was conditioned for the payment of the sum of fifteen hundred dollars, in three equal annual instalments, with interest from date; that the object in giving said bond and mortgage was to secure the payment of the indebtedness of plaintiff to the defendant up to that date (the amount of which is not stated), as well as the balance due on a bond and mortgage previously given to one Benjamin Sanders, for the sum of six hundred dollars, “which mortgage has never been satisfied of record nor delivered up to • plaintiff, as also the other indebtedness of plaintiff; 4. That on November 29, 1888, plaintiff, at the request of the defendant, executed to him a title deed to said mortgaged premises, for the sum of twenty-five hundred dollars, in trust, to enable him to sell said premises and settle said mortgage debt, purporting to be fifteen hundred dollars, and the interest that might be due thereon, and to account to the plaintiff for the balance;” that defendant has failed and refused to account with plaintiff for his actings and doings in the premises; that defendant, in settling the claims held against plaintiff by other parties, “im
By consent, an order was passed, referring all the issues of fact and law to the master, to be heard and determined by him. The master took the testimony as set out in the “Case,” and made his report, in which he held, substantially, that as plaintiff’s cause of action was founded entirely upon the allegation of an express trust, of which there was no evidence, the action could not be maintained, and hence, upon the close of the plaintiff’s testimony, he granted a motion for dismissal of the complaint. The master, however, adds that giving full weight to all the testimony admitted and excluded, it would only establish the fact that the land was sold for $2,500 and a title deed made, and that defendant had failed to pay the whole of the purchase money.; which, if true, would only afford ground for an action on the law side of the court to recover the balance due, and not for an action, as this is, for an accounting from a trustee. The master also says that he ruled that the deed could . not be introduced in evidence against the objection of defendant, as the plaintiff had failed to take the proper steps to compel its production (it being in the hands of the adverse party), either by serving a subpoena duces tecum or by a notice to produce it.
To this report the plaintiff filed numerous exceptions, which are set out in the “Case,” and the case came before his honor, Judge Norton, who rendered judgment, setting aside the report, and remanded the case to the master, “for the taking of
In other words, if we adopt plaintiff’s own showing in his complaint and in his testimony, he first attempted to provide for the payment of his indebtedness to the defendant and others by giving a mortgage on his land to the defendant; but that arrangement having proved insufficient for the purpose, after
The Circuit Judge seems, also, to have been under a misapprehension as to what occurred when the plaintiff attempted to have the deed put in evidence; for, although the defendant had, in his answer, admitted the execution of the deed, the. judge says: “Plaintiff, nevertheless, attempts to prove the-deed, and for this purpose prevails upon the master to require defendant to produce it.” This is evidently a mistake, for the “Case” shows that when the defendant was on the stand, in response to a notice to produce certain other papers, and was asked whether he had said deed in his possession or under 1ns control, the question was objected to, and the master ruled out the question, because that deed was not included in the duces, tecum, nor was any notice served upon defendant to produce it.. Nevertheless, the witness answered: “Mr. Farrow (defendant’s counsel) has it; it was a title.” (“Witnesshands the paper to the master as an escrow, to be delivered in case the Appellate Court should require it.”) But it does not appear that the deed was ever offered in evidence, possibly for the reason that its terms did not show any trust. It will be observed that there is no allegation in the compaint of any fraud in obtaining the deed; the only fraud alleged being in the manner in which the alleged trust was discharged; and, of course, until the trust was established, it would be irrelevant to inquire into the manner in which the alleged trust, which had never been established, had been discharged.
It seems to us that the plaintiff wholly failed to establish any
But those cases are very different from the one now under consideration. Here the plaintiff’s cause of action, as stated in his complaint, rests upon an alleged breach of trust, by which it is claimed that the defendant undertook to sell a tract of land conveyed to him for that purpose by the plaintiff, and after applying the proceeds of such sale to the payment of certain debts due by the plaintiff, to account to plaintiff for the balance. How such an action could be converted, even by an amendment (and none was asked for or ordered), into an action on an ordinary money demand to recover the purchase money