4 S.C. 144 | S.C. | 1873
The opinion of the Court was delivered by
The objection that the case was decided by the presiding Judge without the intervention of a jury, as claimed by the appellants, cannot prevail. The complaint was not for the “ recovery of specific real property.” The'plaintiff sought relief through the equitable jurisdiction of the Court to set aside the deed from the Sheriff to Brown, and to enforce certain trusts attaching on the land which had been sold as the property of the alleged trustee.
The Constitution, Sec. 16, Art. IV, vests the Court of Common Pleas “ with jurisdiction in all matters of equity,” and by the 277th Section of the Code of Procedure the issue was triable by the Court, though the Judge, in his discretion, might have referred it to a jury.
The clause of the Constitution which provides that “ no person shall be dispossessed of his property but by the judgment of his peers, or the law of the land,” may be found in every Constitution under which the State has existed, and it has never been so construed as to deprive Courts of Equity, since their establishment in South Carolina, of jurisdiction over trusts, even in relation to real estate, or to preclude them from deciding all relevant issues arising in the course of the case, without the intervention of a jury. Neither the Constitution or the Code changes the practice which before prevailed in the Courts of Equity, save as to the manner of pleading and its incidents.
The material question in the case was as to the alleged trust imposed on Eli D. Crockett, on behalf of Mrs. Price and her daughter, by the transaction with Thompson shortly after his purchase of the land, as testified to by him. The deed of 15th April, 1867, was a sufficient compliance with the Statute of Frauds, which requires “ that all declarations or creations of trust of any lands, &c., shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.”
It is said in Lewin on Trusts, 63, “ that the Statute will be satisfied if the trust can be manifested by any subsequent acknowledgment of the trustee, as by any express declaration by him, or any
The testimony, however, against the averred trust is so strong and overbearing that the judgment of the Circuit Judge, sustaining it, cannot meet our concurrence. The onus of proving it was on the plaintiffs. Parol testimony to set up a trust should always be clear and conclusive, and evidence of that character should certainly be required here, where the deed to Eli D. Crockett conveys an absolute and unconditional estate.
Thompson, who the plaintiffs claim created the trust, in his examination is vague and uncertain, defining no exact terms or limitations on which it was to attach, offering no declarations of Crockett by which his understanding of the agreement at the time could be made known to the Court, and leaving his intentions alone to inference drawn by himself from what he may have done or said at the interview.
On the other hand, Crockett testifies that he " bought the land for himself, with his own money, and without any agreement at the time with Thompson to re-convey it to any of the plaintiffs.” The deed of April 15, 1867, is not produced, nor are its terms and recitals before us. To give it effect, as a declaration or acknowledgment in writing, sufficient to support the trust claimed through the testimony of Thompson, it must appear that it was executed in direct pursuance of it, to carry out the purposes of the agreement with him. How it can be assumed that this was done, it is difficult to perceive, when Crockett says there was no such agreement. There was no evidence that Crockett was repaid in 1860 or 1862 the amount he paid for the land, as alleged in the decree. According to his testimony, when he received the two hundred dollars of a debt due to Price, he (Price) owed him more than that sum. But the complaint does not refer the trust to the money thus collected, but to the agreement of August, 1856, made with Thompson.
In the absence of proof to the contrary, the presumption should be that the re-payment was made at the date of the deed, and this was after the lien created by the judgment of Jonas Crockett Mr. Browne in his Work on Frauds, Section 97, says: “ If the trust had no effect previously to or independently of the written declaration, the trust property could not be disposed of by the cestui que
The motion is granted, and the complaint dismissed.
