Fort v. Caldwell

71 S.E. 360, 89 S.C. 57, 1911 S.C. LEXIS 224

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action to set aside a deed for fraud.

The facts are fully stated in the decree of his Honor, the Circuit Judge, which, together with the appellant’s exceptions, will be reported.

1 The first question raised by the exceptions, is, whether there was error, on the part of his Honor, the Circuit Judge, in concluding, that the defendants, N. C. McDuffie Co., were purchasers for valuable consideration without notice. They entered into the contract with Howard Caldwell, before they had notice, that the deed executed in his favor, by the plaintiff, was void. Under that contract, N. C. McDuffie Co., not only assumed financial obligations, but expended time and money, in carrying the provisions of the contract into effect, before they had notice, that said deed was not valid.

The exceptions raising this question are therefore overruled.

2 The next question is, whether there was error, on the part of the Circuit Judge, in ruling, that N. C. McDuffie Co. were entitled to damages, from the 34th of March, 1908, to the day of January, 1909. There are two reasons why the exceptions raising this question, must be sustained. During a part of. that tíme, to wit, from the 15th of April to the June term of Court, in 1908, N. C. McDuffie Co., were allowed to' continue operations, under their shingle mill contract.

■ The other reason is, that N. C. McDuffie Co., removed their plant in August, 1908.

N. C. McDuffie, one of the defendants, testified as follows :

“And you have left the mill there until last January, until the last week in January of this year, for the reason that you had no place to put it? No, that is not exactly right. Then, what is right? We moved the boiler and engine away from there, about last August. Well, you are not damaged $400 per month, as to the boiler and engine that were moved away? We purchased a sawmill and necessary equipments, to rig up a complete sawmill, and in that way, made use of the boiler, engine and live stock. The shingle machinery was left at the Pelion location, until the last'week in. January of 1909.” Thus showing, that they volüntarily removed, such parts of the shingle mill plant, as' rendered' its further operation impossible. Therefore, upon the', accounting they will not be entitled to recover damages after that time.

Statements made, in open Court, by the attorneys for the plaintiff and the defendant, Howard Caldwell, render unnecessary, the consideration of the 11th and 12th exceptions'. .

It is the judgment of this Court, that the judgment of the Circuit Court be modified.