Amaker v. New

1. A debtor made a voluntary deed of all his land to A in trust for the debtor’s wife for life, with remainder to his children. His creditor promptly thereafter obtained judgment, issued execution, levied, sold, purchased, and obtained possession. The debtor died and his widow sued for dower in this land, and 158 acres were allotted to her for life as and' for her dower, and she took possession, and retained it until her death seventeen years later, when her daughter took possession, claiming under her father’s deed to A, trustee. In action by the vendee of the said purchaser, instituted soon after this widow s death, to recover these 158 acres, held, that the statute of limitations did not prevent the plaintiff from relying on the fraud in the trust deed interposed as a defence to his recovery of this land. Mr. Chief Justice Simpson", dissenting. 2. A deed from a grantor to a trustee, in trust for the grantor's wife and children, based only upon the consideration of love and affection and $10, is not such a marriage settlement as the law required (in 1866) to be recorded in the office of the secretary of State. 3. In causes tried by a jury, the judgment below cannot be sustained upon grounds other than those stated in the charge to the jury.

Before PIudsoN, J., Orangeburg, September, 1889. This was an action by J. PI. Amaker against Frances New and Pickens New, to recover 158 acres of land, commenced March 18, 1887. The case is thus fully stated in the dissenting opinion of the Chief Justice: This is a contest over a tract of land of 158J acres, situate in Orangeburg County. Both parties claim from a common source, and the question below was, which had the better title ? The facts, so far as necessary to be stated here, were as follows: one Absalom Inabnet, in 1866, was indebted to several parties; among them to one N. E. W. Sistrunk. While thus indebted he conveyed to his son-in-law, William II. Bennett, a tract of land containing some 300 acres, of which the 158J acres were a part, in trust for the sole and separate use of his, the grantor’s, wife, Mary A. Inabnet, for her life, and at her death to be equally divided among his children, &c.; the consideration of this deed, as expressed therein, being natural love and affection and $10. The deed was duly recorded. Judgments were obtained by the aforesaid creditors, including N. E. W. Sistrunk, against the said Absalom Inabnet, after the execution of this deed, to wit, in 1866, and in 1868 the land was levied upon and sold by the sheriff after a return of nulla bona upon the execution of Sistrunk. At this sale' Sistrunk became the purchaser, who, it seems, went into possession. In 1869, Mary Inabnet, the •widow of Absalom, and the cestui que trust for life under the deed to W. II. Bennett, by proceeding in the Probate Court, obtained dower in the land, to wit, the 158|- acres mentioned above, and now in dispute. In 1884, Sistrunk having died, the 158J acres was included in partition proceedings between his heirs at law, and at a sale ordered in said proceeding the plaintiff here became the purchaser, receiving a deed from the master, March 2, 1885. Sistrunk, in his life-time, had sold off the remainder of the 800 acres. In 1886, Mary Inabnet, the widow of Absalom, and the dowress of the 158-J acres in dispute, died, and the defendant, Frances New, a daughter of Absalom, took possession, and with her husband, Pickens New, has continued in possession up to this time, claiming under the trust deed to Bennett. Under this state of facts, the plaintiff brought the action below for the recovery of the 158|- acres. Under the charge of his honor, Judge Hudson, presiding, the verdict was for the defendants. The gist of plaintiff’s action was, that the deed under which defendants claimed was a voluntary deed, executed while the grantor was in debt to plaintiff- and others ; and it having been developed by a return of nulla bona that this debtor had no other sufficient property to pay said debts, that said deed was null and void and fraudulent, and consequently that the sale by the sheriff to Sistrunk was a valid sale, and conveyed the land free from said voluntary deed. The defendants relied upon the statute of limitations, contending that Sistrunk not having instituted proceedings within the statutory period to vacate and set aside the Bennett trust deed, neither he, if he was alive, nor those claiming under him, could now at this late date do so. His honor sustained this defence, instructing the jury “that, after six years after Sistrunk got title, he was barred and deprived of assailing the deed on the ground of fraud upon creditors, and that the plaintiff, with constructive notice of this deed, is affected by the neglect of Sistrunk, under whom he claims, and that, if more than six years had elapsed from the time this deed was put on record to the time he instituted suit, he is debarred from assailing the deed on the ground of fraud against existing creditors, and. this deed being assailed in this way, the defendant has a superior title, and must prevail.” The plaintiff also claimed that the Bennett deed was a marriage settlement, and. not having been recorded in the office of the secretary of State, was void as to him. This position was overruled by his honor. The counsel of appellant in his argument states the questions involved in his exceptions as follows : “(1) Is not property, voluntarily transferred in fraud of existing creditors, subject to execution in favor of such creditors, precisely as if such transfer had not been made ? (2) Does not the title of the sheriff to lands sold as the property of one who has voluntarily conveyed the same to another, in fraud of existing creditors, transfer to the purchaser the legal title to the lands sold, and not merely the right to the legal title, and to have the fraudulent transfer vacated and set aside, by appropriate proceedings in a court of competent jurisdiction, within six years after said fraudulent transfer'? (3) Under the circumstances of this case, is the plaintiff barred by the statute of limitations from assailing the voluntary deed of conveyance made by Absalom Inabnet to William H. Bennett, on the ground that the same was executed in fraud of the then existing creditors of the said Absalom Inabnet? (4) Is the voluntary deed of conveyance from Absalom Inabnet to William H. Bennett void for want of recording in the office of the secretary of State ?” The charge of the judge to the jury, so far as the questions raised by this appeal are concerned, was as follows : But the statute of limitations and the lapse of time is pleaded by these defendants, and I regard the plea as being the same as. if it were pleaded against N. E. W. Sistrunk in an action to recover possession of this land, because the present plaintiff holds Sistrunk’s title. Then the question arises, could Sistrunk, in his life-time, have prevailed in this action ? If he had brought the action, could this defence of the statute of limitations have been set up ? Is this defendant prevented by the conduct of the life tenant, the mother, from now setting up the plea of the statute of limitations ? Did the mother do anything that would deprive the present defendant from defending her legal rights to this land ? The mother, on the death of her husband, recognizing the title of Sistrunk, or looking to her own interests, brought an action to recover dower, and succeeded in getting that 1581-acres set apart to her. That meant that she had a life-time estate in this land. She had nothing more than a life time estate. Shortly after getting possession of the 300 acres, Sistrunk sold off 221 acres to Zeigler, and there is no question as to his title; so far as Zeigler is concerned, he is fixed. Now, the question is as to this 158J acres. Sistrunk claims to have been in possession of it under the sheriff's deed. But the widow has been in possession of it. There may have been a little interval when she was not in possession. You will determine that from the testimony ; at all events, Sistrunk was not in possession any great length of time. Now, Sistrunk dies — his estate is partitioned and Amaker buys. Twenty-three years have elapsed since this deed was made. The mother holds the land as against Amaker, and her daughter holds it now. Now, can she plead the statute of limitations against Amaker ? I am constrained to tell you that, in my opinion, she can; and I instruct you, that when this voluntary deed was put on record, it was constructive notice of the claim of this trustee for the benefit of the oestui que trust under this deed; and if Sistrunk intended to get rid of this deed, so far as these remaindermen were concerned, it was competent for him to have brought action on the equity side of the court, to set aside this conveyance and to have had that matter adjusted. Until this conveyance is adjudged to be fraudulent and void by a court of competent jurisdiction, it stands good.. There must be facts brought to bear upon it to enable the court to determine whether it is fraudulent. It stands as a deed, until by proceedings in a proper court of competent jurisdiction it is declared to be fraudulent. Sistrunk has never taken any such steps. No one under Sistrunk, until Amaker comes now, has ever taken such steps, and now he is encountered by this title. The statute of limitation is pleaded. Twenty-three years have elapsed in all, and Sistrunk, so far as the present defendant is concerned, was debarred from claiming that this deed was fraudulent. Amaker claims under Sistrunk’s title, and therefore he is debarred. If the date of the deed is genuine, and the dates of when the parties died have been correctly testified to, then the present defendant has a complete defence against the claim of fraud. Now, if these facts are established to your satisfaction, six years under our present law is a complete bar to a claim of fraud, and when this deed was made, four years was a bar to the allegation of fraud. It is necessary that I should say something to you in regard to the questions made about this deed not being recorded in the secretary of State’s office, not being constructive notice, &c. I do not look upon this paper as a marriage settlement, or in the nature of a marriage settlement. It was a deed made to his wife and children long after his marriage, and could have no reference to marriage as a consideration at all. It is a plain voluntary donation by a father to his wife and children, and I do not think it was required to be recorded in the secretary of State’s office. I think that the recording here was constructive notice to the world. If it was recorded here in the register’s office in Orange-burg, it was constructive notice sufficient to put all parties in interest on their guard of the fact of the conveyance and its nature. I believe I can give you no further instruction in regard to this matter. If you conclude that Amaker has connected himself with Inabnet by proper deed, then here is an older title from Absalom Inabnet, which must prevail until it is -set aside. The only plea upon which it is sought to set it aside is, that it was a fraud against Inabnet’s creditors. I instruct you that, after six years after Sistrunk got title, he was barred and deprived of assailing the deed on that ground, and that Amaker, with the constructive notice of this deed, is affected by the neglect of Sistrunk, under whom he claims; and that if more than six years have elapsed from the time this deed was put on record to the time that he instituted this suit, he is debarred from assailing the deed on the ground of fraud against existing creditors. And this deed being assailed in this way, the defendant has a superior title and the defendant must prevail. If you come to the conclusion that the deed is fraudulent and void as to the existing creditors,-and that the plaintiff is not debarred by the statute of limitations from assailing it, you will disregard this deed and give the land to the plaintiff. The plaintiff appealed, alleging error to the judge in these portions of his charge.