Opinion
15005
January 30, 1940.
Before JOHNSON, J., Colleton, August, 1939. Affirmed.
Suit by Maggie Grant against Lula B. Hudson and another to cancel a deed. From a judgment dismissing the complaint, plaintiff appeals.
Order of Judge Johnson follows:
This is an action to cancel for alleged total failure of consideration, and fraud, deceit and misrepresentation, a deed to real estate in Colleton County, South Carolina, executed by the plaintiff, to the defendant, Lula B. Hudson, on July 6, 1936.
Upon motion of plaintiff's attorney, and with the consent of the defendant's attorney, the case was referred to J.C. Lemacks, Esquire, Special Referee, to take the testimony and report the same to this Court.
In pursuance to said order of reference, all testimony was taken by the said J.C. Lemacks, Special Referee, and the entire record is now before me.
The only witnesses produced by the plaintiff as a total failure of consideration, and fraud, deceit and misrepresentation, was the plaintiff and the plaintiff's husband, Ben Grant. They testified in substance that on or about July 4, 1936, their son, Joseph Grant, was arrested, charged with having stolen certain personal property of J.F. Cummings, and was lodged in the common jail for Colleton County. That upon receiving this information, they, the plaintiff and her husband, Ben Grant, applied to the defendant, H.D. Kinard, for a loan of $50.00 with which to pay the necessary expenses of having their son, the said Joseph Grant, released from the jail. That Maggie Grant had at no time offered the property for sale to the defendant, Lula B. Hudson, or anyone else, but to the contrary, had applied to the defendants for a loan for the purpose above mentioned, with no desire or intention to sell the property.
The plaintiff and her husband, Ben Grant, maintain that the defendant, H.D. Kinard, accompanied them to Mr. J. W. Smyley, a surveyor and notary public, who lives at Ruffin, South Carolina, and there had the deed prepared, signed and witnessed and that no money was paid by the defendants to the plaintiff or to anyone else for her.
Nowhere in the pleadings or in the testimony is it alleged that the defendant, Lula B. Hudson, knew anything of the son of the plaintiff, Joseph Grant, being in the common jail of Colleton County, nor is she charged with fraud, deceit or misrepresentation in anywise.
The defendants produced the following witnesses at the reference or references: Lula B. Hudson, H.D. Kinard, J. W. Smyley, Mrs. J.W. Smyley, John Roy Maxey and C.S. Smyley. The first five named testified in substance that on July 6, 1936, the plaintiff, Maggie Grant, and her husband, Ben Grant, came to the store of the defendants and that Maggie Grant stated to the defendant, Lula B. Hudson, that she, Maggie Grant, was ready to sell to the defendant, Lula B. Hudson, the tract of land described in the pleadings. That the purchase price was then and there agreed upon by and between the plaintiff and the defendant, Lula B. Hudson, and that the plaintiff was informed by the defendant, Lula B. Hudson, that she would have to wait until the defendant, H.D. Kinard, returned from his mail route, after which Mr. Kinard could go with plaintiff and her husband to Mr. J.W. Smyley and there have the deed prepared and executed. That soon thereafter, the defendant, H.D. Kinard, returned from his mail route and proceeded to the home of Mr. Smyley for the purpose of having the deed to the said real estate prepared and executed, and that prior to Mr. Kinard's returning from his mail route, plaintiff and her husband went to the home of Mr. Smyley and proceeded to have him, Mr. Smyley, prepare the deed. That the price originally agreed upon was $250.00, but upon writing the deed conveying all of the property for the sum of $250.00. Mr. Smyley called to the attention of the plaintiff that she was selling her home; whereupon it was agreed that the plaintiff may reserve the home, move it across Highway No. 21 on a piece of property owned by the plaintiff, and that the consideration of the land without the building would be $150.00. Whereupon the first deed was destroyed and a second deed prepared conveying the land as described in the pleadings for the sum of $150.00. That when the second deed was prepared, Mr. Smyley called his wife, Mrs. J.W. Smyley, into the room where he had prepared the deed, and that J.W. Smyley, and his wife, Mrs. J.W. Smyley, witnessed the execution thereof in the presence of each other, and in the presence of Maggie Grant. That when the deed was signed and witnessed, the defendant, H.D. Kinard, handed to Mr. Smyley his wallet, and from it Mr. Smyley counted out $150.00 in ten-dollar bills, and handed the $150.00 to Maggie Grant, who took the money and departed.
J.W. Smyley also testified that after the deed had been prepared, signed and witnessed, the defendant H.D. Kinard requested him, Mr. Smyley, to survey the property. That Mr. Smyley requested Maggie Grant to bring him an old plat to the property, which she agreed to do and did do. That she brought the plat a week or ten days later, and at that time she raised no objection and offered no protest.
The witness, C.S. Smyley, testified that at some time after July 6, 1936, the plaintiff and her husband approached him and employed him to move the building across the highway. That he agreed so to do, but advised the plaintiff and her husband that it would be necessary to obtain a permit from the State Highway Department before attempting to move the building across the highway.
Defendant, Lula B. Hudson, also testified that negotiations for the sale of the identical piece of property had been going on between her and the plaintiff for a number of years, but the purchase price had not been agreed upon prior to July 6, 1936. The witness, John Roy Maxey, corroborates the defendant, Lula B. Hudson, in this statement.
There was considerable conflict in the testimony offered by the plaintiff and the defendants as to the market value of the property.
In an action to cancel for fraud and misrepresentation, deed regular and valid on its face, it devolved upon the plaintiff to make the fraud and misrepresentation appear by clear and convincing evidence. Rivers v. Woodside National Bank of Greenville et al., 150 S.C. 45, 147 S.E., 661.
The deed under attack is regular and valid on its face which gives rise to the presumption that it is valid in all respects. Being attacked for fraud and misrepresentation it devolved upon the plaintiff to make the fraud or misrepresentation appear by clear and convincing evidence. The evidence offered for the plaintiff is not of that character. Rivers v. Woodside National Bank of Greenville et al., 150 S.C. 45, 147 S.E., 661. See also Groce v. Groce, 131 S.C. 414, 127 S.E., 719.
To decide in favor of the plaintiff and against the defendant, it would be necessary to resolve every reasonable doubt in favor of the plaintiff and against the defendants. It is my opinion that the plaintiff has failed to prove her case by the greater weight of the evidence, and that defendant's testimony outweighs by far that of the plaintiff.
I am convinced by the evidence that the signing of the deed was a free and voluntary act on the part of the plaintiff arising solely from the consideration paid at the time for the said conveyance; that the consideration alleged to have been paid by the defendants was paid, and that the plaintiff accepted it as full and complete settlement at the time. I, therefore, hold that the plaintiff has failed to show total failure of consideration or inadequate consideration.
On the whole, without reviewing in further detail the mass of conflicting testimony, I am convinced that the deed was fairly obtained by the defendant without fraud or misrepresentation, and in the manner and under the circumstances stated by the defendants and the defendants' witnesses. I am also convinced that the consideration named in the deed was paid by the defendants to the plaintiff, as testified to by the defendants and the defendants' witnesses. The deed being in all other respects valid, it follows that the deed should be adjudged valid and the complaint dismissed, therefore it is ordered, adjudged and decreed that the deed of Maggie Grant to the defendant, Lula B. Hudson, dated July 6, 1936, is a good and valid conveyance, in fee simple, of the property therein described; that the defendant, Lula B. Hudson, is entitled to immediate possession of the premises; that the complaint be dismissed, the costs be taxed against the plaintiff; and that the defendants have leave to apply at the foot of this decree for further relief, if desired.
Messrs. Padgett Padgett, for appellant, cite: As to presumption of fraud: 61 S.C. 501; 39 S.E., 742. Fraudulent transactions: 113 S.C. 553; 101 S.E., 836; 101 S.C. 473; 86 S.E., 28; 89 S.C. 352; 71 S.E., 952.
Mr. I.A. Smoak, for respondents, cites: Cancellation of deed for fraudulent misrepresentation: 147 S.E., 661; 90 S.C. 214; 71 S.E., 378; 3 Cyc., 285; 9 Cyc., 455; 64 S.C. 272; 42 S.E., 111; 142 S.E., 498.
January 30, 1940. The opinion of the Court was delivered by
The facts of this appeal are fully stated in the Order of Judge Johnson, from which the appeal comes to this Court. We concur in the conclusion reached by him, but will add to it the following conclusion.
The plaintiff-appellant alleges, as one ground of the attack upon the validity of the deed, that it was given in consideration that Joe Grant, the son of the grantor, be released from jail and the prosecution against him dismissed. It may be that the money received by Maggie Grant as the purchase price of her land was used by her for that purpose, but there is no evidence that the prosecutor was in any way a party to the transaction.
Let the Order of Judge Johnson be reported. It is affirmed.
MESSRS. JUSTICES CARTER, BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.