Beaufort Veneer & Package Co. v. Hiers

November 8, 1927. The opinion of the Court was delivered by This is an action brought under the Statute of Elizabeth (Civ. Code 1922, § 5218), commenced April 15, 1926, in the Court of Common Pleas for Colleton County, by Beaufort Veneer Package Company and all other creditors of J.J. Hiers, as plaintiff, against the defendants J.J. Hiers, Mobley M. Hiers, M.I. Rizer, and Farmers' Merchants' Bank of Walterboro, S.C. for the purpose of setting aside a deed from J.J. Hiers to M.I. Rizer and from M.I. Rizer to Mobley M. Hiers, wife of J.J. Hiers, alleging that the deeds were made for a fictitious consideration and for the purpose of hindering, delaying, and defrauding the plaintiff and all other creditors of J.J. Hiers, etc. The defendants J.J. Hiers, M.I. Rizer, and Mobley M. Hiers, in their answers, denied these allegations. The Farmers' Merchants' Bank was made a party on account of holding a mortgage over the lands described in these deeds, the validity of which mortgage was conceded by all parties.

Prior to the commencement of this action, the Beaufort Veneer Package Company commenced an action in the same Court against the Ashton Produce Exchange, of which J.J. Hiers was a member, and on whom service was obtained September 15, 1924, for the recovery of a money judgment. J.J. Hiers answered the complaint of this last-mentioned action by way of a general denial, and the cause was placed on the calendar for trial. On October 30, 1924, pursuant to notice duly served, his Honor, Judge E.C. Dennis, passed an order striking out as sham the answer of the defendant J.J. Hiers, and further ordered that judgment be entered up against J.J. Hiers in the sum of $929.35. Subsequently to the commencement of the last-mentioned action, and after J.J. Hiers had answered the complaint, he executed and delivered the deed above mentioned; that is, the deed to M.I. Rizer, dated October 15, 1924, whereby he conveyed unto M. I. Rizer the lands described in the complaint of the action first above mentioned, consisting of 304 acres, in Colleton County. Thereafter, on October 24, 1924, 9 days after the execution of the deed by J.J. Hiers to M.I. Rizer, M.I. Rizer executed and delivered a deed to Mobley M. Hiers, wife of J.J. Hiers, conveyed unto her the same tract of land. Both deeds were executed after J.J. Hiers had answered the suit by Beaufort Veneer Package Company for a money judgment, and the deed of M.I. Rizer to Mobley M. Hiers was executed after service of notice on J.J. Hiers to strike out his answer in the last-mentioned suit. These facts are admitted.

By consent, the action to set aside the deeds was referred to the Judge of Probate for Colleton County to take the testimony and report the same to the Court. The matter was heard by his Honor, Judge J. Henry Johnson, on the testimony reported, who decided the issues adversely to the plaintiff, and ordered the complaint dismissed. From the decree of his Honor, Judge Johnson, the plaintiff has appealed to this Court, imputing to his Honor as set forth under the several exceptions. The decree and exceptions will be reported.

The appellant takes the position in the exceptions, which need not be considered separately, that the proof in the case entitles the plaintiff to the relief prayed for, and that his Honor, Judge Johnson, erred in not so holding and issuing a decree accordingly.

So much of the testimony pertinent to the questions raised by appellant's exception is, in substance, as follows:

J.J. Hiers testified that he conveyed unto his codefendant M.I. Rizer the land in question, receiving for the same the sum of $2,200 in cash, which amount he claimed to be the value of the land; that the money was paid to him by Mr. Rizer in actual cash at the time of the execution and delivery of the deed by him to Mr. Rizer; that he used the greater part of the money received for the land in the payment of long-standing obligations and the balance he used in the purchase of goods for his family; that in the payment of these outstanding obligations he used no checks, but paid the money. He further stated that later his wife, the defendant Mobley M. Hiers, got dissatisfied about the land being sold and got him to go with her to see Mr. Rizer for the purpose of trying to purchase the land from Mr. Rizer; that his wife succeeded in making a trade with Mr. Rizer and purchased the land from him for the sum of $2,400, stating that Mr. Rizer would not convey the land to his wife without a profit, and that Mr. Rizer charged the sum of $200 as a profit.

The defendant M.I. Rizer, in his testimony, stated that he purchased the land in question from J.J. Hiers, giving him the sum of $2,200 for the same, and stated that he regarded that amount as being the value of the land. Mr. Rizer further testified that he paid the said sum in cash to Mr. Hiers at the time of the execution and delivery of the deed; that he made no investigations regarding the property, for the reason that he had known the place for a long time. Mr. Rizer further testified that it was his custom to keep some money in hand; that the most of this money which he had in hand at this time was for the sale of cotton, and, while he had business with banks from time to time, he also kept money on hand to operate his business. It further appears from the testimony that Mr. Rizer is a large farmer and makes a considerable amount of cotton on his farm. The subscribing witnesses substantiated Mr. Rizer and Mr. Hiers as to the actual money being paid over to Mr. Hiers by Mr. Rizer at the time of the execution and delivery of the deed.

The defendant Mobley M. Hiers, the wife of J.J. Hiers, testified that she was willing for her husband to sell this tract of land in order that he might raise money to pay off the obligations that he owed and to help get his business in better shape; that she renounced her dower on the deed which her husband executed to Mr. Rizer, but that later on she got to thinking over the matter and was sorry that the land had been disposed of, realizing that she and her husband might need this land for their children, and she decided to try to get the land back from Mr. Rizer. She stated that she owned a tract of land, and that she had been able to save a little from year to year from the operation of a farming business on the same; that she had sold chickens and hogs, and occasionally a cow and in this way she had been able to save up a little money from year to year over a period of something like 16 or 18 years; that Mr. Rizer, when approached on the subject, stated that he would sell the land to her, provided she would give him a profit, and he demanded the sum of $200, making the amount which she paid Mr. Rizer $2,400. She further stated that this amount was paid to Mr. Rizer in cash. The subscribing witnesses and Mr. Rizer and her husband substantiated Mrs. Hiers as to her having paid the money to Mr. Rizer in cash when the deed was executed and delivered to her by Mr. Rizer. Other witnesses testified that the land was not worth over $2,200. Further in the testimony of the defendant Mobley M. Hiers she stated that she did not keep her money in banks because of so many bank failures; that she preferred to take care of the little money that she saved from time to time rather than risk it in a bank. It was also brought out by other witnesses that there had been a number of bank failures in that locality during the last few years. The defendant J.J. Hiers also stated in his testimony that he did not know where his wife kept her money, except that he knew it was kept somewhere on the premises, and Mrs. Hiers did not state where she kept the money.

In the opinion of this Court, the proof in the case does not entitle the plaintiff to the relief prayed for. Granting, as contended by the appellant, that there were circumstances surrounding the transaction clouded with suspicion, it does not follow that there was no other inference than that of fraud. To set aside a deed under the Statute of Elizabeth, the proof must be brought within the well-recognized rule, which is clearly stated in the decree of his Honor, Judge J. Henry Johnson.

In view of the clear statement of the law by his Honor, Judge Johnson, governing the question at issue, it is unnecessary for a further discussion of the law by this Court.

For the reasons assigned in the decree of his Honor, Judge Johnson, it is the judgment of this Court that the judgment of the Circuit Court be and is hereby affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.