2 S.C. 277 | S.C. | 1871
The opinion of -the Court was delivered by.
The grounds of appeal, from 1 to 5, inclusive, present a single question of fact.. In those grounds, the appellant demands that the deed from the representative of English to the appellant be set aside for fraud; but, if such a decree as that were made, the effect would be to revive the title in the heirs of English. That would hardly answer the purpose of the appellant. His purpose, we suppose, could only be effected by a judgment, setting aside, not the deed itself, but the trusts thereof, so as to leave the title in liim, as the sole beneficial owner.
This would be to reform the deed, not to set it aside; but that could only be done upon the clearest proof that the trusts in favor of Mary Ann Whipple and her daughter were fraudulently inserted. The -Chancellor held that there was no fraud, and we are unable to perceive that, in that respect, he miscarried in his judgment.
The sixth ground complains, in effect, that the Chancellor failed to decide that the appellee takes under the deed more than a life estate. His decision is, that she takes a life estate at least in one-lralf of the property, and he directs a commission to issue, to divide the property between her and the appellant.
The complaint is, that he ought to have gone further, and decided what will become of her half at her death. But such a decision would have been premature.
We cannot anticípale what the Circuit Court will do. If it should order a sale of the property, out and out, it would seem eminently proper that it should enquire whether there are future interests which require protection, and, if there are, to make such a decree for the preservation of the corpus as will protect those interests; the parties, no doubt, believe that there must be á sale, but the Court cannot know this until the information reaches them through the proper channel; and an opinion in anticipation of such information would be extra judicial.
Nor do we think there is anything in the 7th ground of appeal. It may bo true that all the money paid for the property belonged to the appellant; still, if there was no fraud, if the trusts of the deed were inserted by his authority, direction, or consent, he is bound by them; the money being his, he might have taken the deed in his own name, and then, by a separate instrument, declared that he held the property in trust; and if he had done so, he would have been bound by the declaration.
Surely, then, it was competent for him to direct the grantor to declare the trusts. The mere fact that no consideration, except that of kindness and benevolence, moved him to make the declaration, or direct it to be made, does not invalidate it. As long ago as Villers vs. Beaumont, (1 Vern., 100,) it was determined, that if one make a gift of which he afterwards repents, the Court has no right to free him from the fetters with which he has voluntarily bound himself, but he must lie down in his own folly; and the doctrine of that case is law to this day — Frances vs. Lehre, (1 Rich. Eq., 271,) — and always will bé, as long as law is founded upon reason and good sense.
The decretal order will, therefore, be modified, so that the writ directed by it to be issued will provide for the equal partition of the said premises between the plaintiff, Amelia Yates, and the defendant, James Whipple, during their joint lives. On the return to the writ the Circuit Court, in case of a sale of the premises being directed, will provide for the payment of the interest oí the purchase money in equal shares to each of the said parties, during their
