The opinion of the court was delivered by.
MR. JUSTICE Pope.
This action was commenced in the name of David E. DuRant, as trustee, plaintiff, against Isabella M. [54]*54DuRant, as defendant, in the Court of Common Pleas for Sumter •County, on 9th September, 1889, to recover 166-| acres of land alleged to belong to the trust estate in the hands of plaintiff. The complaint, amongst other things, alleged that on the 22nd day of September, 1866, Mary Carter-by deed conveyed to John 0. DuRant a tract of land containing 900 acres, situate in Sumter County, upon the following trusts: for the use of the said Mary Carter for and during her natural life; at her death to the use of Rachel M. DuRant during her life; and at her death to be divided amongst “her distributees according to the law regulating intestacies as now of forcethat Mary Carter has been dead for many years, but Rachel M. DuRant is still living; that several years ago John 0. DuRant died intestate, and the plaintiff, David E. DuRant, is his eldest son and his heir at law; that by reason of the deed of trust, the plaintiff became entitled to 166-f-acres of land as a part of the original 900 acres tract of land, and that' the defendant is in possession of the said 166-| acres of land' and refuses to yield possession of the same. Plaintiff, as trustee, demands judgment for such possession and for $500 damages. The answer of the defendant denies all the allegations of the complaint, and alleges that the plaintiff was not seized in fee of such realty at the commencement of the action, pleads the statute of limitations from 10 years seizure thereof; and as a last defence sets up that the deed of Mary Carter, executed in 1866, is fraudulent and void as to the defendant and those from whom she claims title to this 166-| acres of land.
The action came on for trial before Judge Aldrich and a jury. Verdict was rendered for plaintiff for the land in dispute. After'" entry of judgment thereon, the defendant appealed on the following grounds:
1. For that his honor erred in ruling as competent, over the objection of defendant’s attorneys, the testimony of Mrs. Rachel M. DuRant as to a conversation of the said Rachel M. DuRant with one Giles Carter.
2. For that his honor erred in refusing the motion of defendant’s attorneys that the action be dismissed, after the plaintiff testified that he neither instructed nor authorized this action to be brought.
[55]*553. That the facts proved were conclusive that the deed of Mary Carter to John 0. DuRant, trustee, was fraudulent and void, and no one of these facts was either rebutted, contradicted, or explained, and the jury should have found a verdict for defendant.
4. That his honor erred in not charging the jury that the facts proved were conclusive that the deed of Mary Carter to John 0. DuRant, trustee, was fraudulent and void, unless they believed that such facts were satisfactorily explained.
5. That his honor erred in not granting defendant’s motion for a new trial as there was no evidence to support the verdict.
6. For that his honor erred in charging the jury as matter of law, “If the Crane judgment existed prior to the execution of that deed” (deed of Mary Carter to John 0. DuRant, trustee) “and that deed was executed for the purpose of defrauding or delaying that claim of Dr. Crane and nothing else, why, it is a fraudulent deed.” . ■ . ■
7. For'that his honor .erred in charging the jury as matter of law, “If you find that this judgment’.’ (referring to the judgment of Brown, Winn & Co.) “was in existence prior to the execution of the deed” (deed of Mary Carter to John 0. DuRant, trustee), “and that this deed was executed to defraud or delay that claim, then it was fraudulent, and gave away the legal rights of the just creditors of Mary Carter.”
8. That this court should order a new trial in this case, because the foreman of the jury came into open court and stated to the judge that the jury could not agree upon a verdict; the judge said, You have all next week to agree; go back-to your room.
1 We will examine these grounds-of appeal in their order. 1. When the question as to the competency of the testimony of Mrs. Rachel M. DuRant, who was questioned as to a conversation of herself with Giles Carter, the husband of Mary Carter, was first raised, the judge did rule it competent, but, upon reflection, he afterwards ruled that it was inadmissible. It is impossible but that some momentary oversights should occur with judges, but when they were so soon corrected as in the case at [56]*56bar, we cannot on this ground grant a new trial. This exception-must be overruled.
2 2. It seems that Mary Carter by her deed appointed John 0. DuRant trustee for Mrs. Rachel M.- DuRant. When he died intestate, by operation of law this trust was devolved up/jn the present plaintiff, he- being the oldest son and heir at law. Such being the case, the plaintiff was compelled by law to discharge any duty incident to the trust, and if at any time he failed to do so, the Court of Equity would compel him to do so. A trustee once invested with the duties of his office can only be released in one of three ways : UI. By assent of all his 'cestuis que trust,” capable of consent; “2. By means of some special power in the instrument creating the trust;” and “3. By an application to the Court of Chancery.” Adams Equity, 38. If at any time in the discharge of the duties of his office, it becomes necessary to obtain the directions of such court, it is competent for him to do so voluntarily,' but if the exigencies of his trust require action on his part to protect or preserve the property confided to his" keeping, and he refuses or neglects to do so, the court, on a proper application, will enforce such action on his part. Adams Equity, 61.
The relation of trustee importing such serious responsibilities to such a one as assumes the office, or to one upon whom it is devolved by operation of law, it does seem that he has the right of being consulted before an action is brought in his name as such trustee, and not only so, but that he should control such suit in the employment of his attorney' and otherwise. To recognize the right of a cestui que trust to bring an action in his name without his direct authority therefor, is an unwise interference with his office, and is not sanctioned by the law. Among other difficulties produced thereb}*, the expense of litigation, costs, and counsel fees, may eat up the corpus of the trust estate. In the case at bar, we would censure the parties for nothing more than a violation of the letter of this rule, for although the trustee here was not consulted at the inception of the litigation, he was consulted just after it was begun, and did not refuse his assent. As a witness here, he said he supposed the suit would have to be brought. Besides he does not, a;s trustee, formally 'complain to the court [57]*57that this use of his office as plaintiff was unwarranted. It is the defendant who complains, and while a defendant is entitled to be confronted by a plaintiff, yet in this case the trustee does represent whatever interests are here involved of the life tenant. Mrs. Rachel M. DuRant, who is one of the oestuis que trust of the plaintiff, and it is her estate that is in question.
• We can and do appreciate the awkward position in which the plaintiff, by no fault on his part, occupies in this case.
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The opinion of the court was delivered by.
MR. JUSTICE Pope.
This action was commenced in the name of David E. DuRant, as trustee, plaintiff, against Isabella M. [54]*54DuRant, as defendant, in the Court of Common Pleas for Sumter •County, on 9th September, 1889, to recover 166-| acres of land alleged to belong to the trust estate in the hands of plaintiff. The complaint, amongst other things, alleged that on the 22nd day of September, 1866, Mary Carter-by deed conveyed to John 0. DuRant a tract of land containing 900 acres, situate in Sumter County, upon the following trusts: for the use of the said Mary Carter for and during her natural life; at her death to the use of Rachel M. DuRant during her life; and at her death to be divided amongst “her distributees according to the law regulating intestacies as now of forcethat Mary Carter has been dead for many years, but Rachel M. DuRant is still living; that several years ago John 0. DuRant died intestate, and the plaintiff, David E. DuRant, is his eldest son and his heir at law; that by reason of the deed of trust, the plaintiff became entitled to 166-f-acres of land as a part of the original 900 acres tract of land, and that' the defendant is in possession of the said 166-| acres of land' and refuses to yield possession of the same. Plaintiff, as trustee, demands judgment for such possession and for $500 damages. The answer of the defendant denies all the allegations of the complaint, and alleges that the plaintiff was not seized in fee of such realty at the commencement of the action, pleads the statute of limitations from 10 years seizure thereof; and as a last defence sets up that the deed of Mary Carter, executed in 1866, is fraudulent and void as to the defendant and those from whom she claims title to this 166-| acres of land.
The action came on for trial before Judge Aldrich and a jury. Verdict was rendered for plaintiff for the land in dispute. After'" entry of judgment thereon, the defendant appealed on the following grounds:
1. For that his honor erred in ruling as competent, over the objection of defendant’s attorneys, the testimony of Mrs. Rachel M. DuRant as to a conversation of the said Rachel M. DuRant with one Giles Carter.
2. For that his honor erred in refusing the motion of defendant’s attorneys that the action be dismissed, after the plaintiff testified that he neither instructed nor authorized this action to be brought.
[55]*553. That the facts proved were conclusive that the deed of Mary Carter to John 0. DuRant, trustee, was fraudulent and void, and no one of these facts was either rebutted, contradicted, or explained, and the jury should have found a verdict for defendant.
4. That his honor erred in not charging the jury that the facts proved were conclusive that the deed of Mary Carter to John 0. DuRant, trustee, was fraudulent and void, unless they believed that such facts were satisfactorily explained.
5. That his honor erred in not granting defendant’s motion for a new trial as there was no evidence to support the verdict.
6. For that his honor erred in charging the jury as matter of law, “If the Crane judgment existed prior to the execution of that deed” (deed of Mary Carter to John 0. DuRant, trustee) “and that deed was executed for the purpose of defrauding or delaying that claim of Dr. Crane and nothing else, why, it is a fraudulent deed.” . ■ . ■
7. For'that his honor .erred in charging the jury as matter of law, “If you find that this judgment’.’ (referring to the judgment of Brown, Winn & Co.) “was in existence prior to the execution of the deed” (deed of Mary Carter to John 0. DuRant, trustee), “and that this deed was executed to defraud or delay that claim, then it was fraudulent, and gave away the legal rights of the just creditors of Mary Carter.”
8. That this court should order a new trial in this case, because the foreman of the jury came into open court and stated to the judge that the jury could not agree upon a verdict; the judge said, You have all next week to agree; go back-to your room.
1 We will examine these grounds-of appeal in their order. 1. When the question as to the competency of the testimony of Mrs. Rachel M. DuRant, who was questioned as to a conversation of herself with Giles Carter, the husband of Mary Carter, was first raised, the judge did rule it competent, but, upon reflection, he afterwards ruled that it was inadmissible. It is impossible but that some momentary oversights should occur with judges, but when they were so soon corrected as in the case at [56]*56bar, we cannot on this ground grant a new trial. This exception-must be overruled.
2 2. It seems that Mary Carter by her deed appointed John 0. DuRant trustee for Mrs. Rachel M.- DuRant. When he died intestate, by operation of law this trust was devolved up/jn the present plaintiff, he- being the oldest son and heir at law. Such being the case, the plaintiff was compelled by law to discharge any duty incident to the trust, and if at any time he failed to do so, the Court of Equity would compel him to do so. A trustee once invested with the duties of his office can only be released in one of three ways : UI. By assent of all his 'cestuis que trust,” capable of consent; “2. By means of some special power in the instrument creating the trust;” and “3. By an application to the Court of Chancery.” Adams Equity, 38. If at any time in the discharge of the duties of his office, it becomes necessary to obtain the directions of such court, it is competent for him to do so voluntarily,' but if the exigencies of his trust require action on his part to protect or preserve the property confided to his" keeping, and he refuses or neglects to do so, the court, on a proper application, will enforce such action on his part. Adams Equity, 61.
The relation of trustee importing such serious responsibilities to such a one as assumes the office, or to one upon whom it is devolved by operation of law, it does seem that he has the right of being consulted before an action is brought in his name as such trustee, and not only so, but that he should control such suit in the employment of his attorney' and otherwise. To recognize the right of a cestui que trust to bring an action in his name without his direct authority therefor, is an unwise interference with his office, and is not sanctioned by the law. Among other difficulties produced thereb}*, the expense of litigation, costs, and counsel fees, may eat up the corpus of the trust estate. In the case at bar, we would censure the parties for nothing more than a violation of the letter of this rule, for although the trustee here was not consulted at the inception of the litigation, he was consulted just after it was begun, and did not refuse his assent. As a witness here, he said he supposed the suit would have to be brought. Besides he does not, a;s trustee, formally 'complain to the court [57]*57that this use of his office as plaintiff was unwarranted. It is the defendant who complains, and while a defendant is entitled to be confronted by a plaintiff, yet in this case the trustee does represent whatever interests are here involved of the life tenant. Mrs. Rachel M. DuRant, who is one of the oestuis que trust of the plaintiff, and it is her estate that is in question.
• We can and do appreciate the awkward position in which the plaintiff, by no fault on his part, occupies in this case. At the instance of his father, and to further the interest of the family of Mr. Reese DuRant, the husband, he did help to procure Edgarton and Parker to buy this identical land at a price that put $1,800 into the hands of such husband, who, according to the testimony, “is a good provider for his family.” No doubt he resented very keenly the necessity of having himself placed, so to speak, in the unenviable position of procuring to be done, as entirely proper, something that it is now sought to be undone as a palpable wrong. We hope that it will be a consoling reflection to such trustee, that he never dreamed of’ such a result. We overrule the'exception, but very reluctantly.
3 3. This exception is opposed to the plain, unvarying rules laid down by this court for the information of the profession. It is palpably an attempt to have this court decide upon the weight of the testimony adduced at the hearing. This is never done here. Let the exception be overruled.
4 4. This exception seems to point to an omission on the part of the Circuit Judge in his charge. It was not brought to the attention of the trial judge by any request to charge. The exception is overruled.
5 5.In the form of this exception,,we cannot sustain it, for we. cannot say that “there was no evidence to sustain the verdict.”
6 6.We think the Circuit Judge erred in the matter to which this exception relates. By the testimony, adduced in behalf of the plaintiff here, it was demonstrated that when Mary Carter made the deed of trust in September, 1866, she not only owed money, but was being sued by at least one ■of her creditors, yet in view of this condition of her business with others, she deliberately, for love and affection, conveyed to a [58]*58trustee her entire estatei both real and personal, reserving to herself the right of a life estate in the whole. It is useless, under such circumstances, to speak as did one of the plaintiff’s witnesses in answer to the question, “Do you know whether or not there was any actual fraud, or any intention to defraud anybody by Mrs. Carter ?” by saying, “No, sir, not a bit. She was as clear of such a thing as ifshewere an infant.” The very act itself, of putting as far as she could every vestige o.f her estate in the hands of a trustee for others, retaining by such deed the enjoyment of all that property during her life, is made■ by the law a fraud, and vitiates the deed as to existing creditors. Twyne's Case, 1 Sm. Lead. Cas., 1 (3 Co., 80); Smith v. Henry, 1 Hill, 16; Anderson v. Fuller, McMull. Eq., 27; Ryan v. Clanton, 3 Strob., 413; Werts v. Spearman, 22 S. C., 209, and cases there cited. The creditors could treat this act, on her part, in two ways: either set on foot in the Court of Equity an action to set the deed aside for fraud, or, on the other hand, they could disregard the deed and after obtaining-judgment sell this property, and, if not delivered up to the purchaser, bring an action for its recovery. In the case at bar, the creditors of Mary Carter, after obtaining judgment, sold her property under the executions against her in her life-time, and the property was surrendered without other litigation.
But it will be contended, that if it was surrendered, such surrender took place before Mrs. Rachel M. DuRant had the right to speak; that Mrs. Carter did not die until 1871, and the property had been surrendered before that. Grant this, and what difference does it, make now that sMrs. DuR-ant seeks to set up. the deed of September, 1866, of Mrs. Carter as the basis of her rights here ? If it was a fraudulent deed, it was void at its execution and ever since that time. The Circuit Judge here fails to grasp the situation of the parties when he speaks in his charge that “If the Crane judgment was obtained before the deed, and that deed was executed for the purpose of defrauding or delaying that claim of Dr. Crane, and nothing else, why, it is a fraudulent deed.” Of course, the Crane judgment was obtained after the deed. The deed was made in 1866, and the Crane judgment was obtained afterwards. The judgment is not the debt. It is only a remedy [59]*59for its enforcement. It is the wrong to the creditor that is done. His rights, as to his debt, began, so far as Mrs. Carter was concerned, when she contracted'the debt. At that time the law made her so act as to preserve good faith to him so far as disposing of her property was concerned, and at the very instant of time' that she used her property so that every part thereof was conveyed away, for love and affection, in trust for others, reserving for herself the right to use the same during her life, it was a fraud upon such creditors’ rights. It is true he had to wait until he obtained his judgment in order to vindicate his rights, yet those rights of the creditor were violated the instant the deed was executed. It is useless to say the jury did not misunderstand the judge’s charge when he used the word judgment in its connection therein. There is no person more wide awake in a court of justice than •the ordinary juror; he understands a judge’s every word that pertains to the ordinary affairs of life, and he knows the' meaning of the word “judgment” in connection with a suit only too well. This exception is sustained.
7. This exception is similar in letter and spirit to that we have just considered, numbered “6.” It is greater error here, because this debt was created in 1860. It must be sustained.
7 8. We do not feel called upon to pass upon this, except for two reasons — one, because the language of the Circuit Judge is susceptible of the construction, that there would be plenty of time furnished the jury if they so desired, even going into the next week. If such was .his meaning, it was no interference with the jury. The second is, that we have already indicated our purpose of granting a new trial here.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the action remanded to the Circuit-Court for a new trial.