Anderson Hardware Co. v. Gray

March 18, 1913. The opinion of the Court was delivered by This is an action to set aside a deed and mortgage for fraud, under the statute of Elizabeth.

The findings of fact and conclusions of law, by his Honor, the Circuit Judge, are stated in his decree, which will be reported.

The defendants appealed upon exceptions, the first and fourth of which were abandoned in open Court.

The first question that will be considered, is, whether there was error on the part of his Honor, the Circuit Judge, in ruling that the defendants were insolvent.

The appellants' attorneys contend, that it was necessary for the plaintiffs to show, that their legal remedies had been exhausted, before they could resort to the equitable jurisdiction of the Court.

The complaint shows, that the action was instituted under section 2369 of the Code of Laws (1902), commonly known as the statute of Elizabeth, and was for actual fraud. Therefore, it was not necessary for the plaintiffs, to prove a nulla bona return on the execution, in order to establish the fact of insolvency, which could be shown, by any other competent testimony. Miller v. Hughes, 33 S.C. 530,12 S.E. 419.

It was incumbent on the appellants, to satisfy this Court, that the finding of the Circuit Judge that the defendants were insolvent, was contrary to the preponderance of the testimony, which they have failed to show.

The exceptions raising this question are, therefore, overruled.

The next question for determination, is, whether the Circuit Judge erred in finding, "that there was no valuable consideration, passing between J.A. Gray and Laura Gray, for the aforementioned deed, nor between Laura Gray and Henry Gray, for the aforementioned mortgage; that the stipulated considerations, were purely fictitious."

Even if the deed and mortgage, were executed upon a valuable consideration, such fact would not defeat the right of the plaintiffs to set them aside, if they were intended to defraud creditors. Lowry v. Pinson, 2 Bail. 324.

As the question just considered, would not be conclusive of the case, we proceed to determine, whether the Circuit Judge erred in finding that there was fraud, both in the execution of the deed and also in the mortgage.

The appellants, upon whom rested the burden of showing, that the findings in this respect, were opposed to the preponderance of the evidence, have failed to satisfy this Court of such fact. Therefore, the exceptions raising these questions must also be overruled.

The foregoing conclusions practically dispose of all the exceptions.

Judgment affirmed.