The opinion of the.Court was delivered by
Mr. Chief J USTICE McIver.
This action was comm enced some time in February, 1894, for the double purpose of recovering possession of a tract of land in Barnwell County, containing 1,800 acres, more or less, more particularly described in the complaint; and also for the purpose of having certain transactions referred to in the complaint declared fraudulent and void, and that the same be cancelled, as clouds upon the plaintiff’s title. The case was first heard by his Honor, Judge Witherspoon, who rendered a'decree dismissing the complaint upon the sole ground that, though it appeared that plaintiff had bid off the land at sheriff’s sale before the commencement of this action, yet, as no title was made to the plaintiff until after the commencement of the action, the same could not be maintained as an action at law for the recovery of the possession of real estate; and “as the relief sought in equity was subsidiary to and dependent upon plaintiff’s having the sheriff’s deed at the commencement of plaintiff’s action, I further conclude, as the legal action cannot be maintained, it would be useless and improper, at this [361] time, to consider and pass upon either the legal or equitable issues raised by the pleadings.” From that judgment plaintiff appealed, and the case as reported in 45 S. C., 677, shows that this Court held that while Judge Witherspoon was right in holding that the action could not be maintained as an action at law for the recovery of real estate, for the reason that plaintiff had not obtained legal title when the action was commenced, yet that there was error in not considering and determining the equitable issues presented by the pleadings. In deliyeriug the opinion of this Court in that appeal, Mr. Justice Gary uses this language: “The complaint seeks both legal and equitable relief. Even if all the allegations as to the ownership of the land by the plaintiff should be struck out of the complaint, the allegations would still remain that the plaintiffs are judgment creditors of J. C. and E. H. Dowling; that the said E. H. Dowling was insolvent, and that the different transactions mentioned in the complaint constituted a fraud upon the rights of creditors;” and after citing the authorities in support of the view taken, he proceeds to say, “The case of Wagener v. Mars, 27 S. C., 97, shows that the creditor can have complete relief on the equity side of the Court, if the transactions mentioned in the complaint should be declared fraudulent, by having the lands sold under a decree in this case, and the proceeds applied to the payment of the debts of the judgment creditors.” Accordingly the case was remanded to the Circuit Court for the purpose of hearing and determining the equitable issues presented by the pleadings, and it has there been heard by his Honor, Judge Townsend, who rendered the decree set out in the “Case.” From that judgment the defendants appeal upon the several grounds stated in the record, which decree, with che grounds of appeal, will be embodied in the report of this ca,se.
1 Many of these grounds of appeal present questions of fact, and while we may not be prepared to indorse some of the minor and incidental conclusions of fact found by the Circuit Judge, yet, after a careful examina[362] tion of all the testimony, we must say that his conclusions as to the material issues of fact are supported by the preponderance of the evidence, and should, therefore, be affirmed. It is neither usual nor would it be profitable to enter into any detailed consideration of the various questions of fact presented, and we do not propose to do so on this occasion. There are certain undisputed facts which prepare the mind to accept the conclusions of fact reached by the Circuit Judge. E. H. Dowling seems to have been a large and prosperous planter; but desiring to change his business and become a factor and commission merchant in the city of Charleston, in copartnership with one Wroton, he sells, in November, 1874, his entire planting interest— land, stock, farming implements, and provisions on hand— to his two brothers, J. C. Dowling and C. T. Dowling, for the sum of $16,000. This sum, together with the money which he put into the business of Wroton & Dowling, which seems to have been a very considerable amount, was more than double enough to pay every debt which he then owed, so far as the evidence discloses. Having thus sold out all his property in Barnwell County, he removed to the city of Charleston in the early part of the year 1875, where he engaged in the factorage and commission business, as a partner in the firm of Wroton & Dowling. He seems very soon to have found that the business was not a paying business, and some time in the year 1875 he drew out of the firm the sum of $1,200 — all he could get — and invested it in real estate in Dexington County; and in December, 1875, he removed to Dexington County, where he remained until December, 1877, when he returned to Barnwell, and took possession of the land which he had sold to his two brothers in November, 1874- — where he still lives. It seems that, though E. H. Dowling conveyed the land in question to his two brothers on the 24th of November, 1874, no part of the purchase money was paid in cash, and no note, bond or other paper was then taken to secure the payment thereof; but on the 13th of March, 1875, J. C. and C. T. Dowling [363] did execute their bond and mortgage to E. H. Dowling for the sum of $16,000, the purchase money of the land; and that in December, 1877, finding themselves unable to pay the mortgage debt, desired to surrender, and did surrender, the possession of the mortgaged premises, in satisfaction of the balance due on the mortgage debt, only a small portion thereof having been paid. There is no doubt that the possession was in fact surrendered to E. H. Dowling, but there is dispute as to the capacity in which he took possession— the plaintiff contending that he went into possession as mortgagee, while the defendants contend that he took possession as agent of the parties to whom they claim that E. H. Dowling had previously assigned the mortgage. It also appears that J. C. Dowling, at some time, exactly when does not appear, made a deed to Mrs. Virginia Spann Dow-ling, the wife of E. H. Dowling, for his interest in the 1,800 acres of land which he and his brother, C. T. Dowling, had bought from E. H. Dowling. There is no pretense that there was any money consideration for this deed, but the claim is, that it was made to perfect the title of Mrs. Dow-ling, which, it is alleged, she had acquired by reason of the surrender of the possession of the land by the mortgagors in December, 1877. So that when the plaintiff, as a judgment creditor of B. H. Dowling, undertook to enforce its judgment by a levy and sale of the land found in the possession of E. H. Dowling, the creditor is met with a claim that B. H. Dowling is not the owner of the land, but that the title thereto had become vested in his wife by a series of transactions, which will presently be alluded to, and that he is in possession as executor of his wife, who had died in 1887, leaving a will of which he was the qualified executor. These transactions, by which E. H. Dowling claims that the title had become vested in his wife, maybe briefly stated as follows: 1st. That some time in December, 1875, E. H. Dowling delivered to his sister, Mrs. R. A. Barr (now Mrs. Warren), the bond and mortgage to secure the payment of $16,000, the purchase money of the land in question, which [364] he had conveyed to his two brothers, J. C. and C. T. Dow-ling, in November, 1874, for the purpose of securing the payment of an old debt — a large portion of which originated as far back as 1869 — to his sister, Mrs. Barr. . 2d. That on the 15th of March, 1876, E. H. Dowling made the following indorsement on the mortgage: “I hereby transfer the within bond and mortgage to R. A. Barr and V. S. Dow-ling.” 3d. That on the 31st of January, 1880, the following assignment was indorsed upon the mortgage, which was signed only by Mrs. R. A. Barr: “For value, I do hereby assign the within mortgage to P. C. Spann, and others.” It appears that said P. C. Spann was the brother of E. H. Dowling’s wife, but who the “others” were, does not appear. 4th. That on the 22d of October, 1885, the said P. C. Spann indorsed upon the mortgage, a formal assignment thereof to Mrs. Virginia Spann Dowling, the wife of E. H. Dow-ling, and on the same day the said P. C. Spann, by his writing under seal, indorsed on the mortgage, declared as follows: “Whereas, the within mortgage and the bond thereby secured, assigned, and delivered to R. A. Barr and V. S. Dowling in joint interest, and the said R. A. Barr, the 31st of January, 1880, made indorsement designed to assign only the interest and share of the said R. A. Barr to me, the undersigned "assignor, without reference to or affecting the interest or share of the" said V. S.. Dowling therein, know all men that I, Philip C. Spann, of the said State and county, assignee of the said R. A. Barr, as aforesaid, for value to me paid by Virginia S. Dowling, of the county of Barnwell, in State aforesaid, at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have released, bargained, sold, assigned, and set over unto the said Virginia S. Dowling, her heirs and assigns, the said interest and share in and to the within mortgage, and unto the said Virginia S. Dowling, her heirs and assigns, do quit claim unto all the mortgaged premises therein mentioned and described, together with the rights, members, and appurtenances thereto belonging, and all my estate, right, title, [365] and interest therein; to have and to hold all and singular, the premises granted and assigned or mentioned or intended, unto the said Virginia S. Dowling, her heirs and assigns forever, free and released from all claim and demand, by-reason of any assignment aforesaid, and subject only to the right and equity of redemption of the within named mortgagors.” It would thus appear that E. H. Dowling, in but a little more than a year after he had sold a valuable plantation, with the stock and farming implements and the provisions thereon, for the sum of $16,000, had managed to strip himself of every vestige of his property, except the money which he drew out of the concern of Wroton & Dow-ling when he found it was not a paying business, and which he doubtless knew was then in a failing condition, as a disastrous failure soon followed, which money he invested in real estate in Lexington, afterwards conveyed to his brother in law, P. C. Spann, and by him used in satisfying the debt of B. H. Dowling to his sister, Mrs. Barr; and by the transactions above mentioned between persons connected with him by the closest family ties, had managed to vest the title to the most valuable part of his estate in his wife. Such a condition of things very naturally invites the closest scrutiny, and that satisfies us that the Circuit Judge was not in error in concluding that these manipulations of the mortgage were with a view to hinder, delay, and defeat the creditors of E. H. Dowling, and cannot be allowed to stand. Without undertaking to travel over the ground occupied by the Circuit Judge, it seems to us there are several circumstances which tend to support the conclusion indicated by. the several remarks which dropped from E. H. Dowling in the course of his examination, which are mentioned in the Circuit decree, that the real purpose of these various transfers of the mortgage was to save something from the wreck of E. H. Dowling’s affairs for the benefit of his wife. It is a little strange that in December, 1875, E. H. Dowling should have suddenly waked up to the necessity of securing this old debt to his sister, which had been running for sev-. [366] eral years, at a high rate of interest — one per cent, per month — upon which nothing had been paid, so far as the testimony discloses, during the years when E. H. Dowling seems to have been carrying on a successful planting business. Again, it is difficult to understand why E. H. Dow-ling should, in about four months after he claims to have delivered the bond and mortgage to his sister, Mrs. Barr, as a pledge to secure the payment of the debt due to her, have undertaken to indorse on the mortgage a formal assignment thereof to Mrs. Barr and V. S. Dowling, his own wife, who does not appear to have paid any consideration for such assignment. True, E. H. Dowling undertakes to explain this by saying that the intention of the assignment was that his wife was to have as a gift from him only what remained after the debt to Mrs. Barr was satisfied. But this is inconsistent with the explanation which P. C. Spann undertakes to give of this transaction in the indorsement which he made on the mortgage, copied above.
Again, the testimony raises the gravest doubt, to say the very least of it, whether the bond and mortgage were delivered to Mrs. Barr as early as December, 1875, and whether the assignment of the mortgage by E. H. Dowling to Mrs. Barr and Mrs. V. S. Dowling bears its true date. For the testimony both of Mrs. Barr and of E. H. Dowling is to the effect that after the bond and mortgage were delivered to Mrs. Barr, they remained in her possession until she assigned them to P. C. Spann, on the 31st of January, 1880; and yet there are two credits indorsed upon the bond by. E. H. Dowling, one bearing date 20th December, 1875, and the other dated 25th of February, 1877 — which the testimony shows should be 1878. This shows that these papers must have been in the possession of E. H. Dowling as late as February, 1878, when E. H. Dowling, in his own name and not as agent for another, indorsed that credit. So that the last of these credits certainly, and possibly the first, were made after the bond and mortgage purports to have been .assigned to Mrs. Barr and Mrs. Dowling; and by what right [367] B. H. Dowling undertook to receive money on a bond, which he now claims did not then belong to him, is nowhere explained. Furthermore, the other two credits indorsed on the bond, the one in 1886 and the other in 1889, are signed— the former by “V. S. Dowling, per B. H. Dowling,” and the other “B. H. D., Bxr.” — showing that E. H. Dowling knew how to indorse credits after the bond had passed out of his hands, as he claimed. We must, therefore, agree with the Circuit Judge, that the weight of the testimony shows that E. H. Dowling never undertook to transfer the bond and mortgage until after he became insolvent, and after his creditors began to press him with suits, and seeing ruin staring him in the face, he resorted to every possible expedient to save something for his wife from the wreck of his affairs. His own testimony displays a singular — indeed, we may say an extraordinary — forgetfulness of matters of which a person of ordinary intelligence, in his condition, would be expected to retain a lively recollection, even if he did not keep memoranda which would enable him to make a full explanation of these matters, which would naturally excite inquiry.
2 Counsel for appellants contend that the claim of the plaintiff is stale, and that the plaintiff is barred by laches. This contention cannot be sustained, for the reason that it is alleged in the plaintiff’s complaint that it had no knowledge of the various matters constituting the fraud until the notice given at the sheriff’s sale by the attorneys of E. H. Dowling, and this was but a very short time-before the present action was commenced, and there is no evidence that either the plaintiff on the original record, or the First National Bank of Charleston, or the State of South Carolina, who-have, by order of the Court, been permitted to come in as parties plaintiff, ever had any notice of the assignments of the mortgage, or of any of the matters constituting the fraud complained of, until a very short time before the commencement of this action. The rule as laid down in the case of Shannon v. White, 6 Rich. Eq., 96, [368] recognized in the recent case of Harrell v. Kea, 37 S. C., 369, is that where an action is brought to set aside a deed or other paper for fraud, the plaintiff, to avoid the plea of the statute of limitations, should allege that the fraud was discovered within the statutory period, but the omis of showing want of notice is not on the plaintiff, for it is incumbent on the defendant to sustain his plea of the statute, to show that plaintiff had notice more than six years before the commencement of the action. The same rule, upon principle, applies to the defense of laches.
3 But, even if it could be held that the Circuit Judge erred in holding that the various transactions by which it is claimed that the title to the land in question became vested in Mrs. Virginia Spann Dowling were void for fraud, we still think that, under a proper construction of the will of Mrs. Dowling, E. H. Dowling took an absolute estate in the land, and that it is liable to the claims of his creditors. The will is set forth in full in the decree of the Circuit Judge and,-therefore, its provisions need not be copied here. It was made, as we think the testimony shows, at the instance and under the suggestion of E. H. Dowling, and its purpose manifestly was, that while giving, to E. H. Dowling absolute dominion over the property, with the exclusive right to its beneficial use, under the guise of a so-called trust in favor of the children, it was to be protected from the claims of his creditors. By the tennis of the will, all the property of the testatrix of every kind and description whatsoever, is given to “the said Elijah H. Dow-ling, and his successor or successors by his last will and testament to be nominated and appointed, to and upon the trust that the whole and every parcel and portion thereof shall be, during the lifetime and capacity of the said Elijah H. Dowling, managed, controlled, exchanged, sold or otherwise disposed of at and by the discretion of the said Elijah H. Dowling, and without accountability therefor, and in accordance with any' testamentary . directions of the said Elijah H. Dowling to .the use, benefit, and behoof of my [369] children * * * during their minority respectively, and to be equally distributed unto and among them, share and share alike, to them and their heirs; and it is directed that partition and allotment shall be, in all respects, subject to the discretion of my executor hereinafter named, and during his lifetime and capacity may be by him made; but thereafter,' when the oldest of the said children surviving shall attain the age of twenty-one years, the same shall be made and effected by three or more family friends, to be by the said successor or successors selected, and under his or their hand- or hands, seal or seals, to that end and purpose duly appointed and authorized. And I do hereby nominate, constitute, and appoint my husband, the said Elijah H. Dow-ling, executor of this my will.” It seems to us that the first and disposing part of the will is couched in such terms as to entirely defeat and annul the subsequent attempt to create a trust in favor of the children. The property is given to Elijah Dowling, and to such person or persons as he may appoint by his will, to be by him “managed, controlled, exchanged, sold or otherwise disposed of at and by the discretion of the said Elijah H. Dowling, and without accoicntability therefor.'’'' There is no provision, as is usual if not universal in such cases, that the proceeds of the property if sold, or that any property for which it may be exchanged, shall be held subject to any trust; but he may sell it, without accozmtability for the proceeds, he may exchange it for other property for which he cannot be called upon to account; indeed, he may give it away if he chooses, for he is invested with power not only to sell or exchange the property, but may, in his discretion, otherwise dispose of it, and cannot be called to account for so doing. In fact, he is invested with every right and power which the absolute owner can have; for he has absolute power to manage and control the property, and absolute power to sell, exchange or otherwise dispose of it, '■'•zvithoitt accountability thereforf and an absolute owner can have nothing more. As has been well-said in one of the cases cited: “absolute dominion is one of [370] the best descriptions of absolute property.” These views are fully supported by the authorities cited by the Circuit Judge in his decree, and by counsel for respondent in the argument here, and we need not discuss the matter further.
We are, therefore, of opinion that the property in question is the absolute property of the defendant, E. H. Dowling, and can be subjected to the payment of his debts. We cannot concur, however, in so much of the judgment of the Circuit Court as directs the sheriff to put the plaintiff bank in possession of so much of the land in question as is not embraced in the homestead of the defendant, E. H. Dowling; for it is adjudged, under the former appeal in this case, that the plaintiff is not entitled to recover possession of the land in the present action, for the reason stated in the former appeal. In addition to this, inasmuch as the homestead laws require the sheriff, “before selling” the real estate of the judgment debtor, who is the head of a family, shall have the homestead laid off, and expressly forbids him, under a penalty, from so doing, it seems to us best, under the circumstances of this case, that the sale heretofore made by the sheriff should be set aside, and his deed to the plaintiff bank be cancelled, and that the land be sold under an order in this case, as indicated by Mr. Justice Gary in his opinion in the former appeal. But, inasmuch as it is conceded that the defendant, E. H. Dowling, is entitled to a homestead in this land, no sale should be ordered until such homestead is duly assigned, and then the remainder of the land should be ordered to be sold, and the proceeds applied first to the payment of the costs and expenses of these proceedings and of the sale, and then to the judgments in the order of priority.
It was said at the hearing that the proceedings to lay off the homestead of the judgment debtor, which seem to have been commenced, are still pending. If this be so, then such proceedings should be carried through; otherwise, proper proceedings should be taken to lay off the homestead.
The judgment of this Court is, that the judgment of the Circuit Court, except as modified herein, be affirmed, and [371] that the case be remanded to that Court for the purpose of there formulating a judgment in accordance with the views herein announced.