Michalson v. Myrick, 47 S.C. 297

Michalson v. Myrick

47 S.C. 297 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Justice Gary.

The following statement of facts appears in the “Case:” This action was commenced on the 14th day of February, 1895, by the service of the summons and complaint. The said complaint was in the usual form for the recovery of real estate, and alleged that the plaintiff was seized in fee of the land herein described, and that the defendants were in possession thereof, and withheld the same from the plaintiff wrongfully. The description of the land in the said complaint was the same as that mentioned and described in the sheriff’s deed herein. The defendant, Smart Myrick, sr., answered the said complaint, and denied the allegations thereof; and for a second defense he set up that he was the head of a family, and entitled to a homestead under the laws of this State. The other defendants answered and denied the allegations of the complaint, and set up the statute of limitations as a bar to the plaintiff’s action, and alleged that they were in possession. A jury trial was waived in the manner allowed by law, and by consent all the issues both of law and fact were referred to the master to hear and determine. The master filed his report, and fully set forth all the facts necessary to a full understanding of the cause. The sheriff made return that he could find no other lands belonging to Smart Myrick, sr., before he levied upon the land in dispute. The report of the master *305and the order confirming the same will be set out. in- the report of the case.

The exceptions raise substantially but the single question, whether merger took place when Smart Myrick, sr., delivered the second deed of conveyance to the other defendants herein.

Merger is not favored either in the courts of law or of equity. “At law, when a greater and lesser, or a legal and equitable, estate coincide in the same person, the lesser or equitable estate is immediately merged and annihilated. But this rule is not inflexible in equity; whether or not a merger takes place depending upon the intention of the parties and a variety of other circumstances. Notwithstanding the technical rule of law, equity will prevent or permit a merger, as will best subserve the purposes of justice and the actual and just intention of the parties; and, in the absence of an expression of intention, if the interest of the person in whom the several estates have united, as shown from all the circumstances would be best subserved by keeping them separate, the intent will ordinarily be implied. * * * A merger will be prevented by equity only, however, for the purpose of promoting substantial justice; it will not prevent a merger where such prevention would result in carrying a fraud or other conscientious wrong into effect.” Enc. of Law, vol. 15, p. 314-15; Boykin v. Ancrum, 28 S. C., 486; Mangum v. Piester, 16 S. C., 330. The master finds as matter of fact, “that soon after the summons and complaint, in the action of Isaac Michalson v. Smart Myrick, sr., were served upon the said Smart My-rick, sr., that he, for the purpose of evading said debt and defrauding his said creditor, executed and delivered a deed of conveyance of the land mentioned and described in the complaint herein to his codefendants, the consideration expressed in said deed being for natural love and affection and the sum of $3.” The testimony is not set out in the “Case,” and even if it should be admitted that the exceptions are sufficient in form to raise a question as to the *306Sliding of fact by his Honor, the Circuit Judge, that there was actual and moral fraud in the execution of said deed of conveyance, still this Court, in the absence of the testimony in the case, must assume that it was of such a nature as to sustain the Snding of fact by the Circuit Judge. Greenville v. Eichelberger, 44 S. C., 351. We will now proceed to consider whether merger took place, when the facts show that at the time said deed was executed it was the purpose of Smart Myrick, sr., to evade the payment of his debt and to defraud his creditor hereinbefore mentioned: The difference in effect between actual and legal fraud is thus expressed in Suber v. Chandler, 18 S. C., 528, to wit: “* * * has been held by our courts, that while a voluntary conveyance of property is not of itself fraudulent, even by one in "debt, yet if it was intended to hinder, delay, and defeat present creditors, or shall ultimately have that effect, it will be held fraudulent and void. If, at the time of its execution, the wrong was intended, the fraud is positive and active, and attaches to the act at that moment. If, however, no wrong was then intended, and the conveyance becomes injurious to creditors afterwards, because at some future time the grantor’s property has failed to meet the just demands of the creditors, whose claims existed at the time of the deed, then a passive and legal fraud is developed, which, attaching to the deed, renders it void — not from .the beginning, but at that moment.” If, as the authorities show, the said deed was null and void ab initio, then there was not a meeting of a.greater and a lesser estate in the same persons, and, consequently, merger did not take place. The exceptions are, therefore, overruled.

It is ¿he judgment of this Court, that the order of the Circuit Court be affirmed.