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In Austin v. Goddard, 164 S.C. 20, 161 S.E., 767, 769, this Court definitely held, in the language hereinafter set forth, that in an equity case where the findings of fact of the referee are concurred in by the Circuit Judge, such findings will not be disturbed on appeal, unless there is no evidence to support them, or such findings are against the clear preponderance of the evidence.
Summary of this case from Alderman et al. v. Alderman et alOpinion
13312
December 31, 1931.
Before MAULDIN, J., Greenville, July 1930. Affirmed.
Action by W.H. Austin, individually and in behalf of all other creditors, against J.W. Goddard and wife. From a decree for defendants, plaintiff appeals.
The report of the Master and decree of the Circuit Judge are as follows:
MASTER'S REPORTIn due time, the plaintiff excepted to the Master's report, the grounds being set out in the following:
This was an action instituted by the plaintiffs on January 9, 1929, for the purpose of setting aside a certain deed executed by the defendant J.W. Goddard to his wife, the defendant Alice E. Goddard. The deed in question conveyed a certain house and lot, the home of the defendants, situate on Falls Street, City of Greenville, S.C. Subsequent to the institution of this action said property was sold at public sale under a foreclosure proceeding, and this action now affects the surplus proceeds of approximately $2,300 derived from the sale of said property, which proceeds are now being held by me in pursuance to an order in the foreclosure proceeding.
The defendants and other witnesses were examined at length in connection with this case, and the record is quite lengthy. However, after a very careful consideration of all the testimony, I have reached the conclusion that the plaintiffs are not entitled to have the deed in question set aside.
There can be no doubt from the testimony that Mrs. Goddard prior to her marriage to J.W. Goddard, and subsequently thereto, received various sums of money as her sole and separate property totaling approximately $4,500. It appears from the testimony that at various times she received money by inheritance and otherwise from her own relatives, which fact is not contradicted by either testimony or surrounding circumstances.
Likewise I am convinced from the testimony that the defendant J.W. Goddard, from time to time, borrowed from Mrs. Goddard the money that she had acquired, no part of which was ever paid or returned to her. The testimony and exhibits show, and I so find, that the defendant, J.W. Goddard was indebted to his wife in the sum of approximately $4,500.00, the same constituting a valuable consideration for the execution of the deed in question.
However, plaintiffs contend that the execution of the deed in question constituted a preference under the Statute of Elizabeth. In the case of Beaufort Veneer Package Co. v. Hiers, 142 S.C. 78, 140 S.E., 238, 239, our Court holds as follows: "To annual for fraud a deed upon a valuable consideration, it must not only be shown that the grantor intended thereby to hinder, delay, or defraud creditors, but it must also appear that the grantee participated in such fraudulent purpose. Even if we were to assume that there is evidence of mala fides in the grantor, yet, if the sole purpose of the grantee was to secure her claims, having no intent to hinder, delay, or defeat other creditors, her title cannot be affected by the mala fides of the grantor."
And the Court, in the same case, defining what is mala fide says: "It must be an intention not simply to assert one's own rights, but, in addition thereto, to defeat the rights of another, participated in, as we have said, by both parties to the instrument."
This principle is also recognized in the following cases: Lenhardt v. Ponder, 64 S.C. 364, 42 S.E., 169; McElwee v. Kennedy, 56 S.C. 154, 34 S.E., 86; Dargan v. McSween, 33 S.C. 324, 11 S.E., 1077, and Magovern v. Richard, 27 S.C. 286, 3 S.E., 340.
Having reached the conclusion that there was a valuable consideration for the execution of the deed in question, the only question that remains is, "Was there mala fide on the part of both the grantor and the grantee?"
It is true that the testimony shows that the defendant, J.W. Goddard, was in bad financial circumstances at the time the deed in question was executed, and that he almost simultaneously with the execution of the deed in question conveyed to his wife, by another deed, all other real estate owned by him, and also executed to her a chattel mortgage covering his business. However, in view of the fact that I have reached the conclusion that there was no mala fide in the grantee, Mrs. Goddard, I do not deem it necessary to determine whether or not there was mala fide in the grantor, J.W. Goddard. Even assuming that the testimony and surrounding circumstances show mala fide in the grantor, yet, in view of the principle laid down in the cases cited above, it is necessary that the testimony and surrounding circumstances show mala fide also in the grantee. I am convinced from the testimony that Mrs. Goddard, the grantee, did not know of the execution of the other deed nor of the chattel mortgage, which conclusion is further corroborated by the fact that she readily reconveyed the other property to J. W. Goddard when it was made known to her that she held title thereto, and by the fact that at no time did she ever assert any claim or right under the chattel mortgage. On the contrary, I am convinced that there was no mala fide on the part of the grantee, but that her sole purpose in obtaining the deed to the property in question was to secure her own claims, having no intent to hinder, delay, or defraud other creditors. This conclusion is further corroborated by the testimony to the effect that several months prior to the execution of the deed in question Mrs. Goddard's husband had agreed to convey to her the property in question, provided she would renounce dower on a mortgage that he was then executing, and that she renounced her dower with that understanding. There is no direct testimony even tending to show that she had any intention, by accepting the deed in question, to defraud other creditors of her husband, and certainly the surrounding circumstances fail to show such intention on her part.
Consequently I am of the opinion that the plaintiffs, under the testimony and the law, as I have construed it, are not entitled to have the deed in question, set aside.
All of which is respectfully submitted.
DECREE OF JUDGE MAULDINThis was an action instituted by the plaintiff on January 9, 1929, for the purpose of setting aside a certain deed executed by the defendant J.W. Goddard to his wife, the defendant, Alice E. Goddard. The deed in question conveyed a certain house and lot, the home of the defendants, situate on Falls Street, City of Greenville, S.C. Subsequent to the institution of this action, said property was sold at public sale under a foreclosure proceeding, and this action now affects the surplus proceeds of approximately $2,300 derived from the sale of said property, which are being held by the Master of Greenville County, S.C. subject to the further orders of this Court, and pending the outcome of this action. After hearing extensive arguments in behalf of plaintiff and defendants, and after careful consideration and study of all the testimony, records, and exhibits in connection with this action, I find, as a matter of fact, that plaintiff is not entitled to have the deed in question set aside, and do hereby concur in and confirm the report of the Master in his findings of fact and his conclusions as to the law.
It is further ordered that the Master for Greenville County, S.C. do pay to the defendant Alice E. Goddard or her attorney the surplus proceeds now in his hands and which are the subject of this action, after first paying the amount due upon the judgment of Roy H. Bozeman, receiver for the Bank of Commerce, against Alice E. Goddard, upon which execution has been issued and filed with the Master.
Messrs. B.F. Martin and D.R. Cain for appellant, cite: Conveyance of husband to wife void: 134 S.C. 233; 132 S.E., 48; 157 S.C. 85; 153 S.E., 640; 26 S.C. 441; 27 C.J., 504, 519; 35 S.C. 432, 437; 150 S.E., 75; 147 S.E., 752; 56 S.C. 154; 34 S.E., 86.
Messrs. Hodges Leatherwood for respondents, cite: Conveyance valid: 29 S.C. 496; 38 S.C. 463; 26 S.C. 449; 64 S.C. 363. Findings of Master sustained by Circuit Judge will not be disturbed: 128 S.C. 31; 144 S.C. 70; 150 S.C. 244. Deed valid under Statute of Elizabeth: 142 S.C. 78; 64 S.C. 364; 56 S.C. 154; 38 S.C. 324; 27 S.C. 283; 151 S.C. 359.
December 31, 1931. The opinion of the Court was delivered by
Appeal from Greenville County. Action in the nature of a creditor's bill brought for the purpose of setting aside a certain deed of conveyance of real property in the City of Greenville from J.W. Goddard to his wife. The transfer was attacked as invalid and fraudulent under the Statute of Elizabeth (Section 5218, Civil Code 1922), as well as in violation of the statute against assignments (Section 5511, Civil Code 1922).
The property in question was sold under mortgage foreclosure proceedings while this action was pending. This controversy involves the surplus proceeds of that sale, amounting to approximately $2,300.00.
The cause was heard by E. Inman, Esq., able Master of Greenville County, who reported and recommended both on the law and the facts that plaintiffs were not entitled to have the deed in question set aside. Numerous exceptions to this report and its conclusions were taken and fully argued before Hon. T.J. Mauldin, Circuit Judge. He concurred in and confirmed the report of the Master in his findings of fact and his conclusions of law. This appeal, upon a number of exceptions, is from that decree.
It is the settled law of this State that in an equity case findings of fact by a Master concurred in by a Circuit Judge will not be disturbed on appeal unless it is shown that such findings are without any evidence to support them or are against the clear preponderance of the evidence. Youmans v. Youmans, 128 S.C. 31, 121 S.E., 674; Cohen v. Goldberg, 144 S.C. 70, 142 S.E., 36. and Kaminski Hardware Co. v. Holden Trunk Bag Co., 150 S.C. 244, 147 S.E., 874.
The Master in this cause saw and heard the witnesses. The Circuit Judge, after extensive arguments and a careful consideration and study of the testimony, records, and exhibits, concurred in those findings. The issues are close. We cannot say, however, that these conclusions are without evidence to support them or are against the clear preponderance of the evidence.
Counsel for appellants have earnestly and ably argued their view of the law and the facts of this case, and we have been seriously impressed by them. Were this matter before us on a trial de novo and we were free to draw original conclusions from the testimony, their view would have great weight. All of their exceptions herein have been given careful consideration. We think, however, that, under the decisions of this Court, it is our duty to sustain the decree appealed from.
It is the judgment of this Court that the decree of Circuit Judge Mauldin herein be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.
MR. JUSTICE COTHRAN did not participate.