South Carolina. Court of Appeals.

Reports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) online

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Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 3 of 50)
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creditors, may be restrained by injunction from enforcing his jiid<fment by
seizure and sale o( the assigned estate — the judgment having been recovered
against the assignor after the execution of the assignment.

A party who obtains judgment in the United States Court, may be restrained by
the Court of Equity of this Stale, from enforcing his judgment by levy and sale
of projterty not liable to levy and sale under his execution.


This case will bo sufficiently iinderstood from the opinion
delivered in ihe Court of Appeals.

Dargan, for appellant.

Phillips^ contra.

The opinion of the Conrt was delivered by

Wardlaw, Ch. Robert R. Cannon on March IS, 1858,
conveyed to the plaintiff, Richard G. Howard, all his lands,
chattels and credits, in trust, primarily, for the payment of his
debts, in terms and according to a classification which are
not apparently impeachable. The assignor was greatly em-
barrassed in his affairs, to the extent of probable insolvency;
and the assignee filed this bill to call in the creditors and
marshal the assets of the assignor. After the conveyance to
the plaintiff, Cnmmings and Styron, residents without the
limits of this State, recovered judgment for a large sum
against the assignor. Cannon, in the Circuit Court of the
United Slates for South Carolina, and when this bill was


Howard vs. Cannon.

filed, were proceeding to execute their judgment by the seiz-
ure and sale of some of the slaves assigned, through the
agency of W. H. Wingate, deputy of D. H. Hamilton, who is
the marshal of the United States, for the district of South
Carolina. Upon hearing affidavits supporting the allegations
of the bill, Mr. Commissioner Haynesworth granted a special
injunction, restraining Cummings and Styron, in common
with other creditors of Cannon, who had obtained judgments
against Cannon after the execution of the deed of assign-
ment to plaintiff, from seizing and selling the property as-
signed. Cummings & Styron, by attorney, pleaded to the
jurisdiction of this Court, on the ground that the subject of
suit was under the exclusive jurisdiction of the Circuit Court
of the United States, inasmuch as that Court had first taken
cognizance of the controversy between them and Cannon;
and their agent, Wingate, in like manner, pleaded to the juris-
diction of this Court. The Chancellor on circuit sustained
the pleas of Cummings & Styron and of Wingate, to the
jurisdiction of this Court, and excepted them from his order
calling in the creditors of Cannon to present and prove their

The plaintiff appeals from so much of the decree as sus-
tains the pleas to the jurisdiction and exempts Cummings &
Styron from the call on creditors to present and prove their
demands. The Chancellor proceeded mainly on the reason,
not suggested by the pleas, that Caimmings & Styron were
non-resident and had no such property here, the subject of
litigation, as brought them within the cognizance of the
State Court.

The plaintiff, in his first ground of appeal, impugns, and
we think justly, this course of reasoning, because Cummings
& Styron had a direct and substantial interest in the sub-
ject of controversy. The Act of 1784, 7 Stat., 210, gives juris-
diction to the Court as to absent defendants notified by adver-
tisement in the newspapers for three months, without express
restriction as to their having property in the State. But the


Columbia, May, 1859.

obvious injustice of r.oncluding a party where neither his per-
son nor property was within the jurisdiction, properly induced
the Court to give an interpretation to the Act conformable to
justice. It has not been questioned since JVinstanley vs.
Savage, 2 McC. Ch., 435, that non-residents cannot be made
parties except in reference to their property here. In this
case, however, Cummings & Styron had immediate prop-
erty in the subject of controversy, for the deed to the plain-
tiff was an express trust for all the creditors of Cannon in the
property assigned. It was held in Kinloch vs. Meyer, Spear,
Eq., 427, that the Court of Equity would entertain jurisdic-
tion of a bill seeking to subject the share of an absent dis-
tributee in the hands of an administrator, to the payment of
the distributee's debts. That case is conclusive of the prin-
ciple involved in this case. Here the issue is as to the share
of absent creditors, in the hands of a trustee, to be adminis-
tered. This is simply a matter of authority, and it is super-
tiuous to reiterate reasoning well expressed heretofore, T
content myself with citing some of the cases. Bowden vs.
Schaizell, Bail. Eq., 360; Cruger vs. DaJiiel, McM. Eq., 189;
Garden vs. Hunt, Chev. Eq., 42 ; Taylor vs. Williamson,
McM. Eq., 348 ; McKinne vs. City Council of Augusta, 5
Rich. Eq., 55 ; Hurt vs. Hurl, 6 Rich. Eq., 114; Brennan vs.
Burke, 6 Rich. Eq., 200.

The second ground of appeal assails the reasoning ex-
pressed in the pleas, that the subject of controversy was
within the exclusive jurisdiction of the Circuit Court of the
United Stales, which rendered the judgment of Cummings
4' Styron vs. Cannon. We have every disposition to avoid
even the appearance of conflict with the tribunals of the
United States created under the Constitution, and we have no
disposition to quibble between restraining processes and re-
straining persons from proceeding under them. But surely
there is a substantial difference between undertaking fo revise
the judgmeni and procedure of a co-ordinate or even superior
tribunal, and interfering to restrain parlies from acts not au-


Howard vs. Cannon.

thorized by our equals or superiors. It does not impugn, in
any respect, the judgment of the Federal tribunal, that we
interpose to prevent parties under our control from abusing
the process of that Court. It has granted a judgment against
Cannon, and we make no offer to restrain the execution ot
their judgment from the estate of Cannon. But we do not
perceive that, under a judgment against Cannon, the estate of
Howard or any other person can be legitimately seized and
sold. The judgment of Cummings & Styron is left intact;
and we simply determine that they or their agent had no au-
thority to seize the property of a stranger under pretence of
its operation. To determine otherwise would be to adjudge
that a plaintiff, in execution against a pauper, might obtain
satisfaction from any rich inhabitant of the State.

It is suggested, however, that the plaintiff should have
applied to the Circuit Court of the United States on the
equity side, for relief in this case. But the plaintiff could
not have obtained relief there, as most of the creditors were
resident in the same State with himself. It is unnecessary
to discuss the provisions of the Constitution and of the Acts
of Congress in relation to this matter, as it is settled, by adju-
dication, that the Circuit Court of the United States has no
jurisdiction as to defendants resident out of the district in
which the Court is held. Russell vs. C/a?'^e, 7 Cranch, 69 ;
Carneal vs. Banks, 10 Wheat., 181 ; Ford vs. Douglass, 5
How., 143.

It is ordered and decreed, that the appeal be sustained, and
the circuit decree modified accordingly.

It is further ordered and decreed, that the defendants,
Beaseley & Wingate, deliver to the plaintiff the chattels
seized by them.

Johnston and Dunzin, CC, concurred.

Decree modified.


Columbia, May, 1S59.


Issue at Laiv — New Trial — Appeal — Incompeteijt Evidence —
Personal Representative — Fraud — Li/nitations, Statute of.

Where an issue at law is ordered, the verdict of the jury, though approved of by
the presiding Judge, is not obligatcH-y on the Chancellor — he may direct a new
trial, or even decide the cause in opposition to the verdict.

Upon an appeal from a Circuit Chancellor's decree, refusing to order a new trial
at law, it is incumbent on the appellant to show that the Chancellor has riiis-
carried ; it is not enough for the Court of Appeals to have misgivings as to
the result attained by the Chancellor.

Where incompetent evidence was received on the trial of the issue at law, the
Circuit Chancellor is not bound, like a Law Court of Appeals, to grant a new
trial on that ground; he may, if he is satisfied with the verdict upon consid-
eration of the competent testimony, refuse to grant a new trial.

Where the personal representative is entitled to an account of rents and jjrofits
accruing before the death of his intestate, he has such an interest as entitles
him to file a bill to set aside, on the ground of fraud, a conveyance of the land
made by the intestate.

From analogy to the statute of limitations, the Court of Equity generally adopts
the period of the statute as a bar to equitable demands. Sometimes a shorter
period is held to preclude the plaintiff, and where the circumstances of the
case make it inequitable for the defendant to insist on the bar of the statute,
the Court will not enforce it.

In June, 1S47, .T. M. executed two deeds, by which he conveyed his land and
negroes to V. A., reserving the use to himself for life. He remained in pos-
session until 1S52, when he died intestate. In IMay, 1550, the plaintiff" admin-
istered on his estate, and shortly afterwards filed a bill, to set aside the deeds,
on the ground of misrepresentation and fraud, and of the incapacity of the
donor. The allegations having been found true, and it not appearinar that the
capacity of the donor had imjiroved. the statute of limitations was held not to
bar the plaintiff's bill.


John McKelvey and Elizabeth, hi.s wife, on the 2.3d of
June, 1847, executed two deeds, whereby the said John
McKelvey, reserving the use to himself and wife during their


Kirkpatrick vs. Atkinson.

lives, conveyed all his real and personal estate to the defend-
ants, Valentine Atkinson and wife. Elizabeth McKelvey
died in September, 1848, and John McKelvey died in Jnly,
1852. In May, 1856, letters of administration on the estate
of John McKelvey were granted to the plaintiff, who, there-
upon, filed this bill, to set aside the said deeds. In July,
1857, an order was made, directing an issue, to determine
whether the donor was of sufficient capacity to execute the
deeds, and whether said deeds were procured to be executed
by misrepresentation, fraud, or undue influence. The issue
was tried at Chester, Spring Term, 1858, before his Honor,
Judge O'Neall, and the jury found for the plaintift' on both
the issues.

The defendants appealed, and in June, 1858, moved the
Court at Chester for a new trial. His Honor, Chancellor
Dargan, overruled the motion, and decreed in favor of the

The defendants appealed on the grounds:
I. Because the Chancellor erred in not granting a new
trial on the grounds taken before him, to wit:

1. Because the presiding Judge erred in receiving, as evi-
dence, the declarations of John McKelvey, and Elizabeth
McKelvey in derogation of their own deeds, after execution

2. Because the presiding Judge erred in permitting the
opinion of witnesses as to the competency of John McKelvey,
and his capacity to make the deed, without any fact, showing
want of capacity.

3. Because from the proof it was clear that the said John
McKelvey made his own contracts up to the time of his
decease; that he had resided with the defendant for the space
of two years, long after execution of said deed, without any
manifestation of displeasure as to the terms or with the
defendants; that there was no proof of any single fact show-
ing want of capacity to understand the deed in controversy.


Columbia, May, IS59.

'I'he verdict of the jury finding want of capacity is without

4. Because there was no proof of misrepresentation, undue
influence or fraud on the part of the defendants. The verdict
of the jury finding that the said deeds were procured by
fraud, misrepresentation, and undue influence, is without

5. Because it is respectfully submitted, that the presiding
Judge erred in stating and suggesting to the jnry, in order to
sustain the testimony of .James Robinson, that the deed in
question might have been lodged with the clerk of the
Court, with a request not to record the same, when there was
no proof, nor any efljort to prove the same, thus supplying to
the jury, facts to sustain the testimony, without which it must
have been discredited.

II. Because the complainant, Isom Kirkpatrick, as admin-
istrator of John McKelvey, had no right to the rents and
profits of the real estate of John McKelvey; the heirs-at-law,
and not his aduiinistrators being entitled thereto ; the decree
of the Chancellor directing such accounting is erroneous and
ought to be reversed.

III. Because the decretal order directing an issue to try the
validity of the deed made to the defendant by John McKelvey,
of his land, is erroneous; the heirs-at-law of John McKelvey,
being no party to the proceedings, and they are the only
persons who have a right to test the validity of said deed.

IV. Because more than four years having elapsed since the
execution of the deeds, before the commencement of the suit,
the statute of limitations was a bar to so much of tlic bill as
relates to the negro slaves, and other personal property ; the
decree of the Chancellor overruling said plea was erroneous.

V. liecause the costs of suit should have been paid out of
the estate, and not by the defendants.

Mellon, McJilily^ for appellants.
Smith, contra.


Kirkpatrick vs. Atkinson.

The opinion of the Court was dehvered by

DuNKiN, Ch. At the original hearing of this cause in the
Circuit Court, the presiding Chancellor, after an examination
of some of the witnesses, deeming the inquiries involved in
the pleadings peculiarly proper for the consideration of a
jury of the vicinage, who were best acquainted with the par-
ties and witnesses, directed an issue at law. The result was
certified to this Court by the presiding Judge, who tried the
issue and who was satisfied with the verdict. On a motion
for a new trial, before the Circuit Court of Equity, in July
last, the Chancellor, after a review of the evidence appearing
in the notes of the presiding Judge, expressed his satisfaction
with the verdict rendered by the jury, dismissed the motion
for a new trial and proceeded to a final decree in the premises,
which is the subject of this appeal.

The principal grounds taken involve the proposition that
the result attained by the concurrent judgment of the jury,
the presiding Magistrate in the Court of Law, and of the
circuit Chancellor, is not warranted by the testimony. Every
human tribunal is fallible, and all the machinery invented
for eliciting the truth may sometimes prove ineffectual, but
such is not the general presumption. The parties had, in
the first instance, the advantage of the time-honored observ-
ance of calling on jurors to respond to questions of fact.
Their verdict, approved as it was by the presiding Judge,
was not obligatory upon the Chancellor. Unless satisfied
with the finding, he was at liberty to direct a new trial, or
even to decide the cause in opposition to the verdict. This
is an appellate tribunal, and it is incumbent on the party
asking for a revision of the Chancellor's judgment to satisfy
this Court that he has miscarried. It is not enough that this
Court may have misgivings as to the result which has been
attained. But it is objected that the law Judge received evi-
dence which should not have been admitted, qnd that on this
ground the Chancellor should have ordered a new trial. This
subject is very fully treated in Lj/les vs. Lyles, 1 Hill Ch.,


Columbia, May, 1859.

76, It is not like a motion for a new trial at the other end
of the hall. The issue is directed for the purpose of satisfy-
ing the cinscicncc of the Chancellor, and if, upon a review
of the competent testimony, that object has been attained,
the Chancellor is not bound to reject the verdict, because, in
his opinion, the Judge erred in law on the admissibility of a
part of the evidence. In this case there was testimony
besides that to which objection has been taken ; and we
cannot say that it was not sufficient to have satisfied the
Chancellor with the result.

The second ground of appeal insists that, in any view, the
administrator is not entitled to the rents and profits of the
real estate, but that they belong to the heirs-at-law of the
intestate. The rents and profits, which accrued during the
lifetime of the intestate, belong to his personal representative,
and not to liis heirs. After that period, the right to the rents
and profits acconipanies, of course, the inheritance. The
decretal order upon this point is not very distinct, but it
must be so construed. And this furnishes an answer to the
seventh ground. As the right to an account of the rents
and profits which accrued during intestate's lifetime would
belong to the administrator, lie was entitled to an inquiry as
to the validity of the deed.

It remains to notice the defence of the statute of limita-
tions, very faintly urged at this hearing. It has been often
reiterated that proceedings in this Court are not within the
statute of limitations, but that this Court, generally, adopts
this period as a bar to equitable demands from analogy to
the statute. Sometimes, however, a shorter period has been
held to preclude the plaintifl^, as in the case of Kir/cscy vs.
Keith, heard at this sittings. And where, from the circum-
stances, it would be inequitable for the defendant to insist on
the lapse of time, this Court is not bound to cnfi)rce the bar.
The jury have found imt only that " the deeds were procured
to be executed by misrepresentation and fraud," but that the
intestate " was not of sufficient capacity to execute the deeds."


Kirkpatrick vs. Atkinson.

The intestate always retained possession, and it was not sug-
gested that his capacity subsequently improved. Under
these circumstances he could not be expected to have known
his wrongs, or to have adopted the proper means of redress.
The plaintiff instituted these proceedings soon after taking
out letters of administration, and within four years from the
death of his intestate.

It is ordered and decreed, that the decree of the Circuit
Court be affirmed, and the appeal dismissed.

Johnston and Wardlaw, CC, concurred.

Appeal dismissed.


Columbia, May, 1S59.

William Kirksey, Jr., vs. Executors W. L. Keith and


Pleadings — Limitations, Statute of — Husband and Wife.

Where a party files a bill to set aside his own deed, on the ground of duress,
and more than four years have elapsed since the deed was executed, if he
wishes to avoid the ed'ect of his lachea by showing that the duress continued
after the deed was executed, he must malce the question in his pleadings and
by evidence at the trial.

Upon demands purely legal, the Court of Ecjuity follows the decisions at law in
applying the bar of the statute of limitations; hut where the peculiar remedies
of the (^oiirt are sought, a shorter lime than the legal bar may be sufficient to
prevent the Court from giving relief.

Where a husband sues his wife, and the bill is talcen iivo confesao against her, the
Court is not l)ounil by her admission, hut may treat the case very much as if
slie were an infant, and hold the husband barred by his laches in applying for


The decree of his Honor, the Circuit Chancellor, is as fol-
lows :

Wardlaw, Ch. On March 6,1854, William Kirksey, Jr.
released and conv^eyed to W. L. Keith, nncle of grantor's
wife, three houses and lots in the village of Pickens, and the
distributive share of said William in the estate, real and per-
sonal, of his brother, Silas Kirksey, deceased, in the hands of
said W. L. Keith, as administrator, in trust for the use of said
William's wife, Eady Catharine, and his children, Rebecca
and Joseph Brown; with power in said W. L. Keith to sell
and re-invest said estate for the benefit of the beneficiaries,
and also to appoint another trustee in his stead to act for said
wife and children. On May 15, 1856, W. L. Keith, as trus-
tee, sold and conveyed the village lots to Alexander Bryce,


Kirksey vs. Keith.

Senior, for the price of $610. W. L. Keith died May 20,
1856, leaving a will, of which Elizabeth B. Keith, Elliott
M. Keith and Thomas J. Keith, are executors; and at his
death he had not exercised the power of appointing a substi-
tute or trustee; nor had he fullyadministered the goods and
credits of said Silas Kirksey, deceased ; and of such as were
unad ministered, Frederick N. Garvin became administrator.

On May 3, 1S5S, William Kirksey, Jr. filed this bill, mak-
ing his wife and children, the executors of W. L. Keith, and
the administrator, Garvin, defendants; in which he alleges
that said deed of trust was obtained from him by fraud and
duress practised by said W. L. Keith, and prays that the deed
may be set aside and cancelled ; that the executors of W. L.
Keith may account for and pay over to him the proceeds of
the lots sold, and that they and Garvin may likewise account
and pay his portion of Silas Kirksey's estate in their hands
and control. Elizabeth and Elliott, two of the executors of
Keith, in separate answers, admit the importunity, but deny
any fraud or duress of their testator concerning the execution
of the deed ; a formal answer is put in by next friend for the
children of plaintiff, they being infants ; and the bill is taken
pro confesso against the wife, Eady C., and against T. J. Keith
and F. N. Garvin.

It is considered that such duress is proved in this case as
to render the deed voidable, and that no positive confirmation
by the grantor is establisheA Sto. Eq. J., 239 and n ; Gregg
vs. Harllee. Dud. Eq., 42. It is unnecessary to repeat the
words of the witnesses, as a summary of the evidence will
suffice: W. L. Keith had been, at the time of his death, for
twenty-eight years Clerk of the Common Pleas for Pickens,
and he possessed great influence in his region. William
Kirksey is civil and intelligent when sober, but he was, about
1854, addicted to intemperance, and when drunk disposed to
violence. On January 10, 1854, William Kirksey was arrest-
ed and committed to jail on a peace warrant issued by W.
L. Keith, as magistrate ex-officio, based on information by


Columbia, May, 1S59.

Kirksey's wife. On February 17, 1S54, Kirksey entered ini>
a recognizance to keep the peace before W. J. Ganti, a magis-
trate, himself in the sum of $1,500, with seven sureties, each
in the sum of |250, and was discharged from imprisonment.
He was brought back in three or four days afterwards by L.
C. Craig, one of his sureties, and surrendered to the clerk,
who took him to jail without new warrant, and he remained
in confinement until he executed the deed, when he was dis-
charged on his own recognizance by Keith. Throughout
the imprisonment, W. L. Keith frequently and strongly urged
Kirksey to make a deed of trust for the benefit of his family,
and, until this purpose was effected, obstructed his enlarge-
ment as far as practicable. He dissuaded Mr. Parsons, now
ordinary, and Mr. Hagood, now clerk, who were inclined to
become Kirksey's sureties in a recognizance for his good
behavior, from interference in his behalf until he should exe-
cute the deed, insisting that the sum of the recognizance
should be .^5,000, at least, and threatening to prosecute for
estreat in case of any breach ; promising, at the same time,
to discharge the prisoner on his own recognizance, if he
would execute the deed. He induced Sheritf Hryce to with-
draw an indulgence he had granted to the prisoner on
account of failing health, of changing his cell in the upper
story of the jail to the lower room, saying that if Kirksey
were confined he would make the assignment as he ought to
do; and he said to the Sheriff when the deed was executed,
that Kirksey would have made it before if he had been kept
in the upper cell. Kirkrcy at first refused to execute the
deed, declaring he wt)ul(l ratlu'r rot in jail, hut after his
Fiealth had sufl'ered, he said to the Sheriff, I will do anything

Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 3 of 50)