52 S.C. 388 | S.C. | 1898
The opinion of the Court was delivered by
This action was commenced December 9, 1891, by the plaintiffs, as heirs at law of their mother, Sallie Rogers, deceased, against their father, Elias Rogers, and the other heirs of Sallie Rogers, for the purpose of having a deed of sixty-eight acres of land, which was executed to Elias Rogers, May 14, 1861, by Nimrod' Arnold, the father of Sallie Rogers, declared to be a deed of trust for Sallie Rogers and her heirs; also for an accounting of the rents and profits, and for partition. The cause was heard by Judge Buchanan at July term, 1897, and he decreed as follows: “From the testimony, I find that the land described in the complaint belonged to Nimrod Arnold, the father of Sarah Rogers; that the land was deeded to Elias Rogers, but that he paid nothing for it; but that Nimrod Arnold deeded the land, intending it as an advancement to his daughter, Sarah Rogers, wife of Elias Rogers, and that said Elias Rogers took the same under an implied trust for the use of his said wife. I hold that a resulting trust existed in the land described in the complaint in favor of Sarah Rogers, and that her heirs at law have an interest therein, and are entitled to partition in the same.”
The testimony offered to show a trust was parol, and was taken by the master, over the objection of defendant’s counsel. It does not appear that Judge Buchanan made any express ruling in reference to the objections to the testimony, but the record shows .that the case was heard “on
, It is well settled in this State that the facts from which the Court would infer a resulting trust may be established by parol testimony, but it is also settled that such testimony, to warrant such inference, must be clear and convincing. Taylor v. Mayrant, 4 DeS. Eq., 516; Billings v. Clinton, 6 S. C., 102; Ex parte Trenholm, 19 S. C., 126; Catoe v. Catoe, 32 S. C., 595; Jones v. Hughey, 46 S. C., 196; Gaines v. Drakeford 51 S. C., 38. If the object of the testimony was to show a resulting trust in the land in favor of Sallie Rogers, it certainly is far from being clear and convincing. There is nothing in the language of the deed itself from which a trust could be inferred. The deed recites: “for the consideration of the sum of $400, to me in hand paid, by Elias Rogers, * * * and for the said sum hath granted, &c., unto Elias Rogers, to him, heirs, executors, administrators or assigns, &c. I, the said Nimrod Arnold, do hereby bind myself, my heirs, executors, administrators, and assigns, to warrant and forever defend the said plantation or tract of land of sixty-eight acres, more or less, unto the said Elias Rogers, his heirs and assigns, to have and to hold in peaceable possession forever, against myself and assigns, or any other person or persons claining the same or any part thereof.” And there was no evidence that Sallie Rogers, at the time of the purchase, paid the purchase money or any part thereof. Even if it be true that Nimrod Arnold gave this land to his son-in-law with the expectation that, in the settlement of his estate, the land, or its value, $400, should be treated as an advancement to his
The judgment of the Circuit Court is reversed, and the complaint is dismissed.