Sparks v. McCraw

August 26, 1919. The opinion of the Court was delivered by This action was brought by the trustee in bankruptcy of Bonner McCraw Company against A. Bonner McCraw, the former president and treasurer of the corporation and general manager of its business, to have certain property, which he purchased with funds of the corporation and took titles thereto in his own name, impressed with a trust in favor of the creditors of the insolvent corporation. It is not an action at law to recover the property so purchased, but an action in equity to subject it to a trust, and, therefore, we do not agree with respondent's contention that the facts are not reviewable.

In equity cases the burden is upon appellant to show that the preponderance of the evidence is against the findings, or any particular finding, complained of. In this case appellant has not convinced us of error of any finding complained of except one. In stating the evidence and its tendencies, the Court said: "There is testimony also to show that the defendant, in a statement made to or in the presence of one Allison, declared that, if he ever went into bankruptcy, his creditors would get nothing."

There is no testimony in the record before us to sustain that finding, but it is wholly immaterial; for, even if defendant made no such statement, it would not affect the result. But it appears that there was a great deal of testimony before the Circuit Court, which it was deemed unnecessary to set out in the record for appeal and it is possible that there was, in the record before that Court, testimony to support that finding.

The evidence abundantly sustains all the material findings of the Court, and the conclusions therefrom are correct. Palmetto Lumber Co. v. Risley, 25 S.C. 309.

Appellant complains that, having found that he had used the funds of the corporation to buy property, the titles to which he took in his own name, the amount for which he was to account should have been specified. This shows a misconception of the action. Defendant was a trustee, and as such he was called upon to account for the assets of the corporation, which he had appropriated to his individual use. It was, therefore, his duty to specify. If he kept the books and transacted the business of the corporation in such a way that it was impossible for him to show exactly how much of the funds of the corporation went into the property sought to be impressed with a trust, it is his own fault. But the evidence shows that when he went into business he had comparatively nothing, and that his private estate increased commensurately with the debts of the corporation. We find no error of substance in the decree.

Judgment affirmed.