Coe-Mortimer Co. v. Briggs

89 S.E. 553, 105 S.C. 86, 1916 S.C. LEXIS 196

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

This was an action to set aside two deeds for fraud. The defendant demurred to the complaint on four grounds: (1) That there was no allegation that the deeds were executed after the debts were contracted. (2) There is no allegation of a nulla bona return. (3) There is no allegation of want of consideration. (4) That plaintiff is estopped to deny that-R. H. Briggs is the sole debtor by its judgment against R. H. Briggs alone.

The demurrer was sustained on the second ground, but refused on the other grounds, and an amendment ordered. From this order the defendants appealed.

There are two exceptions, as follows: (1) That the presiding Judge erred in overruling defendants’ first, third and fourth grounds of demurrer. (2) That the presiding Judge erred in not dismissing the complaint.

1 These exceptions are contrary to the spirit of rule 5, rules of the Supreme Court, but inasmuch as they are not within the letter, they will be briefly considered.

2 1. A deed, if made in anticipation of the making of a debt, and with intent to hinder, delay, or defeat the collection of the debt, when made, is fraudulent. This exception cannot be sustained.

3 2. A purchaser may pay full value; yet, if the purchase is made to hinder, delay, or defeat the debtor of the vendor in the collection of his debt, the deed is fraudulent, and the payment of full value is no defense.

4 3. From the fact that a creditor gets a judgment against one man, he is not estopped afterwards to show that there were others who are liable for the same debt. The other parties to this suit cannot claim an estoppel of a judgment to which they were not parties, and there is nothing here to show that they were parties to the former suit.

4. The appellant admits in argument that his second exception depends on the first and falls with it.

The order appealed from is affirmed.

Footnotes

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Footnote. — As to parties in actions on notes, see notes in 37 L. R. A. (N. S.) 965; as to effect of commencement of action or taking judgment against either an undisclosed principal or his agent as against the other, see notes in 6 L. R. A. (N. S.) 729, and 21 Id. 786.