| S.C. | Jul 4, 1887
The opinion of the court was delivered hy
The action below was brought by the plaintiffs, judgment creditors of the defendant, Walter W. Mars, to set aside two deeds, one from the said Walter W. Mars to Thomas W. Mars conveying certain lands, and the other from Thomas W. Mars to the defendant, Lucy J. Mars, the wife of the said Walter, conveying the same lands. The first deed is dated September 24, 1881, and the second September 4, 1882, and the ground of attack was that they were executed without consideration, and for the purpose of defeating, delaying, and hindering the creditors of the said W. W. Mars, and were collusive and fraudulent and that the said W. W. Mars had no other visible property within reach of his creditors.
The master sustained the allegations of the complaint, finding as matters of fact, that the conveyance from W. W. Mars to Thomas W. Mars, was without a valuable consideration, and was made with a fraudulent intent in both parties to defeat, delay, and hinder creditors, and also the same as to the second deed from Thomas W. to Lucy J., and he adjudged said deeds void. His honor, Judge Hudson, heard this report upon numerous exceptions, all of which he overruled, and confirmed the report, decreeing that the «deeds be delivered up and cancelled, and that the lands be sold. He further ordered that it be referred to the master to report a suitable fee to be paid to the plaintiffs’ attorneys out of the proceeds of the sale, &c., &c.
Among the exceptions upon appeal here are several alleging error to the Circuit Judge in sustaining the master in allowing certain incompetent testimony as alleged to be introduced before him. See subdivisions from 1 to 6, inclusive, under the 1st general exception. It does appear in the report of the master that the defendants objected to this testimony when offered, but no exception was carried up to the Circuit Judge on that account; nor does it appear in the decree that his honor made any special ruling thereon. He overruled the exceptions filed and confirmed the report. Under these circumstances we cannot regard the exceptions referred to as before us. Not having been relied upon in the exceptions to the master’s report, and therefore no ruling demanded thereon from the Circuit Judge, they must be consid
The important and vital questions in the appeal are questions of fact, to wit, whether these deeds were without consideration, and were executed, as alleged, for the purpose of defeating, delaying, and hindering the creditors of W. W. Mars, the defendants all colluding and conspiring to that end. If these facts are affirmed, as found both by the master and the Circuit Judge, the legal conclusion of invalidity follows beyond doubt. Now, it should be a very clear case, indeed, for this court to overrule the findings of fact below, first reported by the master, and then unqualifiedly concurred in and sustained by the Circuit Judge. With an intelligent and competent master, as the one here seems to be, accustomed and- experienced in sifting testimony, with the witnesses before him, and with full time to deliberate and consider, and naturally disinclined, doubtless, to disregard the evidence of his neighbors and fellow-citizens, if it could be avoided consistently with his duty, his findings of fact of the character here especially, come with great force before the court, and when they have been concurred in by the Circuit Judge, they ought not and cannot be overruled, unless the error is patent and overwhelming. It is needless to go over the testimony ; sufficient to say, that we have examined it thoroughly, and we do not feel warranted in saying that we find such an error as that suggested here. The findings of fact, therefore, are affirmed.
The deeds in question, then, having been executed without a valuable consideration, and for the purpose of defeating, delaying, and hindering the creditors of W. W. Mars, which was conéurred in by all of the defendants, the plaintiffs being judgment creditors of the said W. W. Mars, and there being no other visible property out of which they can make their debt, it follows, as said above, that said deeds must be delivered up and cancelled as void.
The two remaining questions are, 'first, did his honor err in directing a sale of the lands after declaring the deeds void? and 2nd, was his order as to the fee for appellants’ counsel erroneous?
On the principle that where the Court of Equity has rightfully
As to the fee. This is a creditors’ bill, or in its nature, and the proceeds of the sale are directed by the decree to be held subject to the further order of the court, the master in the meantime to report encumbrances and liens, &c. We think, in so far as the proceeds may be applied to the creditors who may come in and share the result of the plaintiffs’ action, a fee for respondents’ counsel may jbe paid therefrom. But should the lands sell for more than enough to pay said claims, the balance, which would belong to the defendants, should not be diminished by any portion of said fee. In other words, the fee should be deducted from the amount of proceeds applied to the creditors’ claims. It may be that there was no doubt below, that it would take the entire proceeds of the prospective sale to meet the demands, and therefore the order made was not objectionable. With that understanding, this portion of the decree is affirmed also. But should it turn out otherwise, then this portion of the decree should be enforced as above suggested.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed, as above indicated.