Jackson v. Johnson

Full title: JACKSON v. JOHNSON ET AL

Court: Supreme Court of South Carolina

Date published: Jan 27, 1938

186 S.C. 155 (S.C. 1938)

195 S.E. 239

Opinion

14608

January 27, 1938.

Before DENNIS, J., Dillon, January, 1937. Affirmed.

Suit to set aside a will and for an accounting by Anjaline Jackson, by her committee, S.W. Jackson, against Mrs. Lena E. Johnson, as executrix of the last will and testament of L.F. Johnson, and in her own right, and others. From the decree, all parties appeal.

Decree of Judge Dennis follows:

The above-entitled cause was begun on or about the 27th day of February, 1936. The complaint sets forth four causes of action, and enumerates numerous transactions taking place between L.F. Johnson, the testator of the defendants, and Lucinda and Anjaline Jackson. It alleges the due appointment of a committee for Anjaline Jackson, and prays an accounting on the part of the estate of L.F. Johnson, by his executrix, and his heirs at law, and in the fourth cause of action that the will therein mentioned be declared null and void.

The defendants duly answered, denying the material allegations of the complaint; setting up the statute of limitations, and laches, and further, that the deeds made were in good faith, and for valuable consideration, and that any sums of money that the said L.F. Johnson received were intended as a gift, in consideration of the said L.F. Johnson taking care of the plaintiff and in pursuance of the will, which was likewise alleged to have been made in good faith, and while the plaintiff was of sufficient mental capacity to make it.

The cause was referred to the Master for Dillon County to take the testimony, which was done, and the matter came on to be heard before me at my chambers at Darlington on Wednesday, the 30th day of December, 1936.

After hearing arguments, and after due consideration of the testimony, I find the following facts: That in 1912, Dr. L.F. Johnson was called to the home of Owen Jackson to render medical service, the said Owen Jackson then living at his home with his sister, Lucinda Jackson, and her daughter, Anjaline Jackson. Owen Jackson died within a period of from sixty to ninety days thereafter, making as one of the devisees under his will in consideration for medical services, Dr. L.F. Johnson. From the time of his death in 1912 to 1918, when Lucinda Jackson died, he took numerous deeds for lands from Lucinda Jackson; they purporting to be for a consideration of support and medical attention. On Lucinda's death in 1918, Anjaline Jackson, who was the only heir of Lucinda Jackson, made a will, giving to the said L.F. Johnson all of her property. Defendants contend that it was her intention to contract with Dr. Johnson for her care, maintenance, and support during her lifetime in consideration of which he was to have her property at her death, and because of this situation they attempt to justify his acts and doings in connection therewith. Even if this were the original purpose, it was repudiated by Dr. Johnson. In December, 1919, he had Anjaline Jackson execute to him a deed, conveying perhaps the choice lot of her land, for a consideration of $200.00, and on May 17, 1920, he conveyed the same property to L. Cottingham for a consideration of $3,000.00. He kept a book showing his advances to her, but he did not credit the $200.00 thereon until after he had made the sale to Cottingham. On the same date, May 17, 1920, he had Anjaline Jackson execute a deed to Cottingham for about five acres of her land adjoining the lot conveyed to him in the previous December for a consideration of $7,000.00. He received the check, got the money, and nowhere credited her for it. His account book, commencing with 1918, shows numerous visits at $2.00 each, and a meager amount for supplies. Still not satisfied, in 1931, he took another deed from her, for an alleged consideration of $150.00, and in 1932, another deed for a consideration of $300.00. One of these deeds he credits; the other he does not.

In this same account book he has a statement in his own handwriting, from which it appears that certain parties were attempting to raise questions as to his treatment of Miss Jackson, and he states that he will furnish her supplies and medical attention as long as he is able and as long as Miss Jackson has money to pay him therefor. This statement and the taking of the deeds clearly show that if, in the beginning, there was an agreement as to the will, Dr. Johnson has long since repudiated it. The testimony convinces me that beginning in 1912 he had formed a scheme to get all of the property of these two old women, who were extremely ignorant, neither of whom could read or write, and who had no conception of the transaction of business, and that he used the confidential relationship existing between him and them for the purpose of carrying out his schemes. I am convinced that certainly as to the $7,000.00, which he took, used, and did not credit, that it was his intention to confiscate same and that as to it, he is a trustee ex maleficio. I further conclude from the testimony that his purpose in keeping the ledger account was that in case any question was raised as to the conveyances made to him, to use the same as an offset or claim that he had paid valuable consideration therefor.

As a matter of law, I hold that the committee of Anjaline Jackson is not in a position to question the transaction between Dr. Johnson and Owen Jackson and Lucinda Jackson. As to these, on their death, administrators should have been appointed or in case there was an executor, the executor or administrator should have raised these questions.

As to Anjaline Jackson, I hold as a matter of law that the statute of limitations, Code, 1932, § 392, does not apply: First, because there was a mutual current account running between the parties, and the last entry is well within the six-year period; and secondly, for the reason that Dr. Johnson was in a position of trust which had not been openly repudiated, and Anjaline Jackson, being ignorant, and relying entirely on him and his judgment and good faith, no condition arose nor did any facts exist that would cause the statute to begin to operate.

For the same reason, I hold that there was no laches on her part; it being well settled that mere lapse of time does not amount to laches, but that in each case the surrounding facts and circumstances, and especially opportunity on the part of the person against whom laches is claimed, and knowledge and capacity to appreciate the opportunity and the necessity for taking action must be considered.

However, in the accounting, I am going to be as lenient as I can under the law. Under the testimony, there is room for holding that the considerations paid for the two last deeds was equitable, and I am going to require him to account for the considerations mentioned therein. As to the $3,000.00 and the $7,000.00, he must account for these sums, with interest on them and on the considerations mentioned in the deeds at the legal rate, figured according to the rules for simple interest. He is likewise entitled to credit for his advances for each year and interest thereon, figuring the same way. Upon this being done, a balance should be struck, and his estate should account to the plaintiff for the balance. I state the account as follows:

CHARGES AGAINST THE DEFENDANTS.

CREDITS TO DEFENDANTS 1920 May 17 Received purchase price lot .................. $ 3,000.00 7% simple interest May 17, 1920, July 1, 1934, 14-1-14 ..................... 2,965.67 6% simple interest July 1, 1934, to Dec. 31, 1936, 2-6 ........................ 450.00 Received purchase price warehouse lot ....................................... 7,000.00 7% simple interest May 17, 1920 to July 1, 1934, 14-1-14 ..................... 6,919.89 6% simple interest July 1st, 1934, to December 31, 1936, 2-6 .................... 1,050.00 1931 Dec. 22 Conveyance of lot ............................ 150.00 7% simple interest December 22, 1931, to July 1, 1934, 2-6-9 .............. 26.52 6% simple interest July 1, 1934, to December 31, 1936, 2-6 .................... 22.50 1932 Aug. 23 Conveyance of lot ............................ 300.00 7% simple interest Aug. 23, 1932, to July 1, 1934 .............................. 38.97 6% simple interest July 1, 1934, to December 31, 1936, 2-6 .................... 45.00 _________ Total Debits ................................. $ 21,968.55 1918 December 31, advances for 1918 ............... $ 285.48 7% interest December 31, 1918, to July 1, 1934, 15-6 ........................ 309.75 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 42.82 1919 December 31, advances for 1919 ............... 696.89 7% simple interest December 31, 1919, to July 1, 1934, 14-6 ............... 707.34 6% interest July 1, 1934, to December 31, 1936 .................................. 104.53 1920 December 31, advances for 1920 ............... 582.50 7% interest December 31, 1920, to July 1, 1934, 13-6 ........................ 550.53 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 87.37 1921 December 31, advances for 1921 ............... 399.55 7% interest December 31, 1921, to July 1, 1934, 11-6 ........................ 349.62 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 59.92 1922 December 31, advances for 1922 ............... 508.26 7% interest December 31, 1922, to July 1, 1934, 11-6 ........................ 409.17 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 76.25 1923 December 31, advances for 1923 ............... 424.28 7% simple interest December 31, 1923, to July 1, 1934, 10-6 ............... 311.85 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 63.65 1924 December 31, advances for 1924 ............... 447.63 7% interest December 31, 1924, to July 1, 1934, 9-6 ......................... 297.66 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 67.15 1925 December 31, advances for 1925 ............... 397.05 7% simple interest December 31, 1925, to July 1, 1934, 8-6 ................ 236.30 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 59.55 1926 December 31, advances for 1926 ............... 343.39 7% interest December 31, 1926, to July 1, 1934, 7-6 ......................... 180.30 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 51.50 1927 December 31, advances for 1927 ............... 471.54 7% interest December 31, 1927, to July 1, 1934, 6-6 ......................... 214.56 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 70.73 1928 December 31, advances for 1928 ............... 474.98 7% interest December 31, 1928, to July 1, 1934, 5-6 ......................... 182.87 6% simple interest July 1, 1934, to December 31, 1936, 2-6 .................... 71.25 1929 December 31, advances for 1929 ............... 393.30 7% simple interest December 31, 1929, to July 1, 1934, 4-6 ................ 123.88 6% simple interest July 1, 1934, to December 31, 1936, 2-6 .................... 59.00 1930 December 31, advances for 1930 ............... 351.83 7% simple interest December 31, 1930, to July 1, 1934, 3-6 ................ 86.20 6% simple interest July 1, 1934, to December 31, 1936, 2-6 .................... 52.77 1931 December 31, advances for 1931 ............... 413.81 7% interest December 31, 1931, to July 1, 1934, 2-6 ......................... 72.12 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 62.07 1932 December 31, advances for 1932 ............... 439.12 7% interest December 31, 1932, to July 1, 1934, 1-6 ......................... 46.01 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 65.87 1933 December 31, advances for 1933 ............... 283.19 7% interest December 31, 1933, to July 1, 1934 .............................. 9.91 6% interest July 1, 1934, to December 31, 1936, 2-6 ............................. 32.47 1934 December 31, advances for 1934 ............... 255.09 6% interest December 31, 1934, to December 31, 1936, 2 years ................ 30.62 1935 December 31, advances for 1935 by Dr. Johnson ....... ....................... 40.45 6% interest one year ......................... 2.43 Advance by Mrs. Johnson 1935 ................. 102.09 6% interest one year ......................... 6.12 __________ Total credits and interest ................... $ 12,464.85 Balance due plaintiff ........................ 9,503.70 It follows from what has been said above that the will that was executed in favor of Dr. Johnson is of no force and effect, and it is hereby declared to be null and void.

It is therefore ordered, adjudged, and decreed that the plaintiff have judgment against the defendants for the sum of $9,503.70; that the will be declared null and void and is hereby set aside.

Messrs. Joe P. Lane and Gibson Muller, for appellant-respondent, cite: Statute of limitations: 17 R.C.L., 735; 10 R.C.L., 396; 26 R.C.L., 1365; 58 F.2d 689. Effect of statute on trusts: 17 R.C.L., 711. Allowance of interest: 2 McCord Eq., 214; 16 Am. Dec., 648. Pleading: 112 S.C. 71. Accounting: 130 S.C. 131; 132 S.C. 410; 133 S.C. 149.

Mr. W.C. Moore, for respondent-appellant, cites: Trusts: 17 R.C.L., 711; 1 McCord, 168; 32 S.C. 249. Statute of limitations: 26 S.C. 237; 82 S.C. 407; 2 Rich. Eq., 259; 15 S.C. 164; 1 McCord, 314; 11 S.C. 565; 16 S.C. 603; 57 S.C. 493; 21 S.C. 112; 76 S.C. 167; 111 S.C. 376; 16 S.C. 198.

January 27, 1938. The opinion of the Court was delivered by

MR. JUSTICE BONHAM.

We have read with especial care the voluminous record in this case. Rarely does one find a record so replete with evidence of a formed design and skillfully executed scheme to defraud illiterate, ignorant, and confiding people of their meager patrimony. Throughout the sordid story runs the thread of the proof that Dr. Johnson, in all his dealings with Lucinda Jackson and Anjaline Jackson, took advantage of their ignorance, their trust and confidence in him to acquire, piece by piece, their property. It is a pitiful story; one is reminded of that which another said:

"Oh! What a tangled web we weave, When first we practice to deceive."

We are satisfied with the disposition made by the decree of Judge Dennis of the legal issues involved in the case. Some question was made in argument that Dr. Johnson should not have been charged with the sum of $3,000.00, which he received from Dillon Agricultural Loan Marketing Association as the purchase price of the lot which he sold to that association, and which was deeded to him by Anjaline Jackson. Her deed to him was dated December 12, 1919. On May 17, 1920, he sold this lot to Dillon Agricultural Marketing Association, and at the same time Anjaline Jackson conveyed to the same grantee 4.76 acres of land adjoining that which she had just conveyed to Dr. Johnson. The Agricultural Marketing Association paid some one the sum of $7,000.00. Dr. Johnson got it along with the $3,000.00 for the lot conveyed by him. There is no proof that Anjaline Jackson ever got a cent of this money. We think there is ample evidence to sustain Judge Dennis' finding that the whole transaction was a scheme to defraud Anjaline Jackson of the whole sum paid by the association and to convert the same to the use of Dr. Johnson.

We find no merit in the exceptions of the defendants.

The plaintiff, by certain exceptions, contends that the trial Judge should have charged Dr. Johnson with $600.00, the price of timber sold by Lucinda Jackson. That matter is not involved in this suit. That conclusion relates also to the note alleged to have been given by Dr. Johnson and Mrs. Johnson to Lucinda Jackson. There is no proof that they ever got that sum of money from Lucinda Jackson. It is a fair inference that Lucinda never had that much money in all her life. However that may be, it is clear that that matter is not included in this action.

All exceptions are overruled, and the decree of Judge Dennis is affirmed. Let it be reported.

MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.

MR. JUSTICE CARTER did not participate on account of illness.

Rehearing denied February 14, 1938.

Per curiam.

Respondents-appellants have filed a petition asking that they be granted a rehearing in the above-stated case. Their petition is based on two grounds, viz.: That the action was brought against them as devisees under the will of Dr. L. F. Johnson, to require them to account for property received under the will, but that the Circuit decree, affirmed by this Court, gives a general judgment against them individually for the full amount found to be due plaintiff by the estate of Dr. Johnson.

The complaint asks only that the defendants account for the acts and doings of the testator, which we construe to mean that they account out of the property devised to them by Dr. Johnson, and not from their individual properties.

While the decree of Judge Dennis gives judgment against the defendants apparently in their individual capacity, it must be construed in the light of the allegations and prayer of the complaint to mean, and we so hold, that the judgment is to be satisfied out of the property they take as devisees under the will of Dr. Johnson.

The second ground of the petition is that this Court overlooked, or misapprehended, the admitted facts in relation to the item of $3,000.00, for which Dr. Johnson sold the lot conveyed to him by Anjaline Jackson.

We are satisfied with the disposition of this item made by Judge Dennis.

The petition is refused.

MR. JUSTICE CARTER did not participate on account of illness.