McMahan v. Dawkins , 1885 S.C. LEXIS 25 ( 1885 )

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

The plaintiff, appellant, recovered a judgment against the defendant, William J. Dawkins, in 1876, under which the land in dispute was sold in December, 1876. At this sale J. Thomas Dawkins became the purchaser at $205. Of this he paid $26 to the sheriff, we suppose to cover costs, and the balance, $179, he claimed should be credited on a judgment which he held against the said William J., which was allowed by the sheriff. This was a judgment by confession which Thomas J. Dawkins held as administrator of his father, John Dawkins, deceased, and based on a note which the said William J. .had given in the purchase of certain property made at the sale of the estate in 1854. The confession was given 1869, and was for $854.22. On this confession was a credit of $185, and when the balance of J. T. Dawkins’ bid at the sale above referred to ■was allowed by the sheriff to be entered as a credit, i. e., $179, there still remained due thereon over $900.

William J. Dawkins was a son of the intestate, John Dawkins, as was also J. T. Dawkins, and they, with other brothers and sisters, eight in all, including these two, were the distributees. Although the bid of J. T. Dawkins was credited on his judgment, he did not demand or obtain titles from the sheriff. He, however, took control and rented it out from year to year until January, 1880, when, by directions of the said J. T. Dawkins, the sheriff executed titles to the said William J. Dawkins in trust for his children then living, and such as should thereafter be born. This deed was made in this way by the consent and direction of the other distributees off the estate of John Dawkins, deceased, and we suppose was in satisfaction of their portion of the proceeds credited on the judgment held by J. T. Dawkins as administrator as above.

After the execution of this deed the plaintiff, in November, 1882, caused the land to be again sold under the same judgment, and with renewed execution, by which she had previously sold it. At this sale she became the purchaser at $5 and received a conveyance from the sheriff. She then commenced the action below, alleging in her complaint that the deed to W. J. Dawkins in trust for his children was intended to hinder and delay his creditors; that he was insolvent, and had been for years, and that he had no other property out of which the plaintiff could make her debt; that one of his children had died, and that he unjustly retained possession of the land against her conveyance from the sheriff, by virtue of which she was seized in fee and entitled to immediate possession. Wherefore she demanded judgment: 1st. That said pretended deed of the sheriff to said W. J. Dawkins be adjudged void; 2d. For the possession of the land; and, 3d., for such other and further relief as may seem just, with costs.

The case came to trial before his honor, Judge Fraser, who heard it upon the pleadings and evidence adduced, and finding ho testimony showing a return of nulla bona on the execution of the plaintiff before she began her suit, which in his opinion was necessary under Suber v. Chandler (18 S. C., 529), he dismissed the complaint, both so far as it sought to have the deed of trust set aside, and also the recovery of the possession of the land. He, however, retained it until the parties could be heard at the next term of the court, as to the right of the plaintiff to have a partition as to the interest of W. J. Dawkins in the land, as heir of his deceased child, on the ground, we suppose, that this interest, if any, at least passed to the plaintiff under her deed from the sheriff.

The plaintiff has appealed, and she assigns error to the decree of his honor: 1st. Because he did not find the confession of judgment fraudulent, and long since paid. 2d. That he did not find the bid of J. T. Dawkins at sheriff’s first sale colorable, and that its transfer, and causing the deed to be made to W. J. Dawkins in trust for his children, were to hinder, delay, and defraud his, W. J. Dawkins’, creditors. 3d. Because he did not find that the consideration for said transfer of his bid and the execution of the deed were moved in large part from W. J. D., and was therefore fraudulent as matter of law upon his creditors.

The complaint contains two causes of action, the first to set aside a deed of land for fraud, and the second to recover possession of the land. The one is equitable and the other legal. This, however, is not objectionable under the reformed procedure. In fact, the union of these two actions in the same complaint has been especially recognized'as proper pleading; because it not only prevents circuity of action, but affords prompt relief. But when they are thus combined they do not lose their distinctive features and characteristics, nor are the rules heretofore existing as to their trial changed or coalesced. On the contrary, what was equitable before still remains equitable, and what was legal is still legal, and the mode of trial of each is still preserved. These rules required in this case that the first cause of action should be tried by the judge, and the second by the jury, unless a jury trial was waived. We suppose the jury trial was waived, and the whole case, therefore, was properly heard by the judge.

We think the judge was right in holding as to the equity cause that the action could not be .maintained in the absence of a nulla bona return on plaintiff’s execution before commencing it. Suber v. Chandler, supra. It is a general rule, established and held in many cases, that in actions by creditors in equity to vacate voluntary deeds and conveyances of their debtors, inter vivos, to entitle them to proceed, they must have first exhausted their legal remedies. That this is the only ground upon which they can come into equity, and while it is not necessary to allege in the complaint a return of nulla bona, yet that is the sufficient evidence of the fact that all legal remedies have been exhausted. It is, too, one of the probative facts which shows the necessity under which the plaintiff is to resort to the property covered by the deed which he seeks to set aside, and it is the foundation for the charge of legal fraud on account of which such deeds are frequently assailed. It must appear, therefore, in the evidence, or the action will fail. It was not proved in this case. The judge could not do otherwise then than dismiss the complaint as to the first cause of action.

But the failure of the first cause of action on this ground did not necessarily demand the dismissal of the second. That was an action at law for the recovery of the land, and the opposing deed of the defendant might have been resisted for fraud on the law side without the evidence of a nulla bona return. It has been the constant practice of the law courts in this state in actions to try titles to allow deeds and other conveyances to be assailed in evidence for fraud without such return. Thomas & Ashly v. Jeter, 1 Hill, 380; Smith v. Culbertson, 9 Rich., 106. It is only required in equity courts, and it is required -there because such courts can only take cognizance of such cases when the plaintiff has exhausted his legal remedies, of which fact such return is held to be the best and highest evidence. We do not know that the Circuit judge dismissed the complaint as to the second cause of action simply because there was a failure of evidence to sustain the first as to the nulla bona return. He seems to have heard the whole case, legal and equitable, the evidence for and against, all that the parties had, we suppose, was submitted and heard, and the judge may have dismissed the second cause because the charges of fraud made were not proved, and this part of the case being a case at law, though tried by the judge, the facts are beyond our reach; but if we could consider them, we would have no hesitation in saying that there is no foundation for these charges.

There is no doubt that the defendant bought the property at the estate sale, for which he gave his note. He' had a right to confess the judgment. The plaintiff herself forced the sale of his land, at which J. T. Dawkins purchased it. There was nothing wrong at the sale, no chilling of the bids, no concealment, nor anything out of the way. J. T. Dawkins had the right to have his bid credited on his judgment; in fact, it was his duty to see that the land should not go to others below its market value. He had the right to pay off the distributees in land, if they were willing to receive it in whole or in part of their shares in the personal estate, and those distributees, it seems to us, did a commendable act in surrendering their interest therein by directing the land to be conveyed for the benefit of the children of their unfortunate brother. To denounce such an act of benevolent charity as this fraudulent, and allow a party who' purchased the land at $5 to recover it, would be shocking. There is no evidence that any portion of W. J. Dawkins’ share in the personal estate went,.into this land. For aught that appears the administrator still owes him his share therein, and he still owes the administrator over $900 on the judgment. In the face of all this we cannot say that the Circuit judge erred in not holding as matter of law that the transaction was fraudulent, as assigned in exception 3.

The other two exceptions complain that the Circuit judge did not find certain matters of fact. As we have already said, the findings of facts were for him. It may be that on the death of W. J. Dawkins’ child he became entitled to an interest in the land as one of the heirs of that child; if so, in all probability the plaintiff’s deed would convey that interest; if so, it is her right to recover it, and the decree of the judge provides for this.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.

A petition for rehearing was filed March 19, but the same was dismissed by an order passed Per Curiam May 4, 1885.