52 S.C. 472 | S.C. | 1898
The opinion of the Court was delivered by
The plaintiff brought this action to recover possession of the tract of land described in the complaint, claiming under a deed executed by the sheriff on the 21st of March, 1893. The property was sold under executions issued upon judgments recovered by the plaintiffs against J. W. Wells. The defendant, after denying in her answer certain allegations of the complaint, set up as a defense a resulting trust in the land in her favor. Upon the trial of the case the defendant also relied upon a deed of conveyance executed by J. W. Wells, and recorded prior to the said sheriff’s deed. The jury rendered a verdict in favor of the defendant.
The second and third exceptions are as follows: “II. Because his Honor erred in allowing the witness, H. G. Hartzog, to testify, notwithstanding objections of the plaintiff, as to what J. W. Wells said to him on the day the said J. W. Wells bought the land in dispute from the executors of James A. Bailey, deceased, the same being irrelevant to the issue involved in this action, and being incompetent to prove the alleged resulting trust in favor of the defendant. III. Because his Honor erred in allowing the defendant to testify as to what she said to the defendant on the morning of the day he purchased the lot in dispute from the Bailey estate, the same being irrelevant to the issue involved in this case, and incompetent to prove the resulting trust alleged by the answer of the defendant to have been created in her favor.” The defendant urges as an objection to the consideration of these exceptions that they are too general. Waiving, however, this objection, they raise no practical question under the views hereinafter expressed as to the resulting trust.
The fifth exception was abandoned.
The ninth exception is as follows: “IX. Because his Honor erred in refusing to charge the jury, upon the request of the plaintiff, as follows: ‘3. That if the jury find from the evidence that the deed from J. W. Wells to the defendant was made in consideration of a pre-existing debt, and at a time when the grantor was indebted to the plaintiffs in considerable sums, and that there was no change of possession, but that the grantor continued to treat it as his own, and pay the taxes on it, the law infers fraud, and the inference is incapable of being rebutted or explained.’ ” This exception is disposed of by what was said in considering the eighth exception.
The tenth exception is as follows: “X. Because-his Honor erred in refusing to charge the jury, upon the request of the plaintiff, as follows: ‘4. That if the jury find from the evidence that after the deed above mentioned was executed, the grantor retained possession of it, without delivering it to the defendant, and did not even have it recorded until after the plaintiffs caused the land to be advertised for sale under their judgment and executions, that would be a strong badge of fraud, and would warrant the jury in setting the deed aside.’ ” This exception is disposed of by what was said in considering the eighth exception.
The twelfth exception is as follows: “XII. Because his Honor erred in charging the first request of the defendant, which was as follows: ‘If the jury believe from the evidence that Mr. Wells had Mrs. P. J. Wells’ money, and at her request purchased the lot of land in suit from the Bailey estate, and that he paid a part or the whole of the purchase money from the funds of hers, there was a resulting trust in favor of Mrs. Wells, and the fact that the deed was made in the name of J. W. Wells, did not affect her right to the property.’ ” The views hereinafter stated in regard to the resulting trust rendered the question raised by this exception of no practical importance upon this appeal, and, therefore, it will not be considered.
The sixteenth and eighteenth exceptions were abandoned.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial, as well as for such other proceedings as maybe necessary to carry out the views herein announced.