105 S.C. 1 | S.C. | 1916
Lead Opinion
The opinion of the Court was delivered by
After protracted litigation in the case of Manship v. Newton, reported in 94 S. C. 260, 77 S. E. 941, the plaintiff obtained judgment against the defendant, H. H. Newton, for $8,000. On this judgment only $1,000 was paid. The defendant, H. H. Newton, was examined in supplementary
The first exception, as well as the additional ground of attorneys for respondent, raises the question as to whether the Court below was correct in holding that the suit was based exclusively upon the theory of a conveyance without consideration. We are of opinion that the complaint was sufficient to allege a cause both in contravention of the Statute of Elizabeth and the Assignment Act, and do not intend ,to take up and discuss the exceptions made separately, but content ourselves with determining whether or not there •was fraud, actual or constructive, in the transactions between
“We will now leave Mrs. Newton out of consideration, as the undisputed testimony is that Mr. Newton acted as agent for Mrs. Newton in all matters relating to her property, and, this being the case, any fraud on the part of Mr. Newton will be imputed to her, although she did not actually participate in it.”
His Honor finds that there was no fraud upon the part of either defendant. So we have a concurring finding of fact on the part of the special referee that there was no fraud on the part of Mrs. Newton, and she did not actually participate in it, even if her husband and codefendant did perpetrate a fraud, and there is no preponderance of the evidence to overcome this finding of the Circuit Court. Both the referee and Circuit Judge acquit Mrs. Newton in any participation in the fraud charged against Mr. Newton.
Judgment affirmed.
Concurrence Opinion
concurring. I concur. What was Mrs. Newton’s intention in buying the land? If she bought with the intent to aid her husband in a scheme to prevent the collection of plaintiff’s debt, the deed is void. If she bought the land because she really wanted it and intended to buy it at some time, and it was now or never, then the sale was valid. Mr. Newton went to her and said, “I am going to sell this place immediately.” It goes with the saying that she would be seized with an almost frantic determination to save her home, with its associations, from the hands of strangers, and how that intention was her sole purpose.