47 S.C. 566 | S.C. | 1896
Lead Opinion
The opinion of the Court was delivered by
In January, 1885, the defendants, D. R. & W. R. Crawford, being in debt to the plaintiffs and others, transferred and conveyed to their sister and codefendant, Miss D. M. Crawford, certain real and personal property. On the 20th day of December, 1890, plaintiffs commenced an action to set aside these transfers and conveyances, on the ground, first, of actual fraud, and, second, as in violation of the assignment act of this State. To the complaint, as a part thereof, was attached a list of the property alleged to have been conveyed and assigned. The defendants answered, denying all allegations of fraud, and alleging that the conveyances and transfers were bona fide and for value.
The cause was heard by Judge Fraser, at February term, . 1892, and he dismissed the complaint, holding that there was not sufficient evidence of actual fraud; and there being no allegation in the complaint that Miss D. M. Crawford was' a creditor of D. R. & W. R. Crawford, that no case
The fourth exception becomes immaterial under the conclusion reached as to the first and second exceptions.
The seventh and twelfth exceptions have been practically disposed of in the consideration of exceptions one and two.
It is the judgment of this Court, that the judgment of the Circuit Court be modified, as above indicated, as to the rule for accountability for rents and profits, but that in all other respects it be affirmed, and the cause remanded to the Circuit Court for necessary proceedings to carry out the Circuit Court decree as modified herein.
Dissenting Opinion
dissenting. Being unable to concur in all the. conclusions reached by Mr. Justice Jones, in the opinion prepared by him, I propose to state as briefly as practicable, without elaborating the argument, the grounds of my dissent.
It seems to me that the first, second, and third exceptions are well taken, and that, upon the grounds there presented, the case should be remanded for a new trial. The first and second exceptions raise the question whether the objection to the introduction of certain record books of the office of the clerk of the court, was properly overruled. When these books were offered in evidence the following statement, as appears in the “Case,” was made: “No objections are made to the introduction of the record of these transfers or assignments upon the ground that the originals or copies of these records are not produced, but the defendant reserves the right to object upon any other ground.” This occurred when these record books were offered in evidence before the referee, who was appointed simply to take and report the. testimony — not to hear and determine the issues in the action. When this testimony was offered before the Circuit Judge at the hearing, defendants objected on the ground that the ten days notice required by the statute had not been given. The Circuit Judge held “that
The third exception raises the question as to the admissibility of Mr. Dial’s testimony as to what the defendant, Dolly M. Crawford, said when she was examined as a witness de bene esse at some point in the previous progress of this case. It seems to me that such testimony was clearly inadmissible, upon two grounds: First, because, under the express terms of the act of 1883, the testimony, even as taken in writing by the referee appointed for that purpose, could not have been introduced, when it appeared, as it did, that Miss Crawford was still alive at the time of the trial, and living in Daurens County, within the reach of
I think, therefore, the judgment should be reversed, and the case remanded for a new trial.
Remittitur stayed, by order of the Court, until November 25, 1896.
Concurrence Opinion
I concur in the views expressed by Mr. Chief Justice Mclver as to the third exception.