Strong v. Weir

25 S.E. 157, 47 S.C. 307, 1896 S.C. LEXIS 122

• Court: Supreme Court of South Carolina
• Decided: July 22, 1896
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

The allegations of the complaint herein are substantially as follows:

1. That during the year 1891 the defendant, Thomas Weir, received and took possession of the sum of $475.18, which was paid to him by Elijah Beam. 2. That the said Thomas Weir admitted having said sum of money in his possession, and admitted plaintiff’s ownership thereof, but positively and wrongfully refused, after demand, to deliver it to the plaintiff. 3. That the plaintiff is an old man, and the said defendant clained to be, and held himself out to the world, as plaintiff’s “managing agent;” but plaintiff avers that such claim is a mere pretense, without plaintiff’s knowledge or authority, and contrary to his wishes. 4. That on the 22d day of January, 1892, the said defendant for a consideration of $612.50, paid by the said defendant as “managing agent of the estate of Jesse Beam,” purchased from the defendant, David J. Weir, who is the father of the said Thomas Weir, a certain tract of land described in the complaint. 5. That the said deed of conveyance is to Thomas Weir and his brother, David Weir, jr., and contains the following provision, to wit: “I reserve to myself and wife, Sarah Weir, a lifetime interest in said estate, after our death with remainder to Thomas Weir and David Weir, jr.” 6. That $476.18 of the money paid for said land belonged to this plaintiff, and was used without plaintiff’s authority, and against his express direction. 7. That he is informed and believes the defendants are in the joint possession of said tract of land. 8. That should the Court direct a conveyance of the land by the defendants to this plaintiff, he is unable to pay the difference between the amount of his money used and the total purchase price. (Jesse Beam was the plaintiff when the action herein was commenced, but died thereafter, and the plaintiff abovementioned was substituted in his stead upon the record.)

The defendants answered the complaint, denying the allegations thereof, except as admitted in the following defense interposed by them, to wit: 1. “That during the year 1891 the plaintiff divided his property among his children, with the purpose to secure to each of them a home, and they agreed to pay $20 each for his annual support. 2. That in pursuance of his said purpose he conveyed to his daughter, Mary E. Peay, nee Beam, a home place of 112 acres, more or less, and to secure a home for his daughter, Mary Jane Weir, nee Beam, the defendant, Thomas Weir, under the directions of the plaintiff, collected from Elijah Beam $300 and $176.18 (the last amount proceeds of rent cotton delivered to said Elijah Beam, for that purpose), and invested the same for the said Sarah Jane Weir in a tfact of land described in the complaint, following the special instructions of the plaintiff as to character of title.” The case was referred to J. C. Janies, Esq., as special referee, to take the testimony and report upon all the issues, both of law and fact.

The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The following testimony throws light upon the disputed points, which are regarded as material in view of the conclusion at which the Court has arrived. Jesse Beam, the plaintiff, in his testimony, says: “Thomas Weir was not managing my business then and has never managed my business; I never appointed Thomas Weir as my agent to manage my affairs. Thomas Weir admitted having my money in his pocket, and said he would be damned if I should have it; * * * I never authorized Thomas Weir to invest money in land, but told him not to take my money to buy land. * * * Nobody lived with me before Mr. Peay and his wife came to live with me. They have been living with me something over eighteen months. I deeded my home place to Mary shortly after they moved there; it was the understanding before they moved there, that I was to deed the place to her, and they and Elijah and the others were to support me, and each of them was to give me $25 a year. The ones who were to support me and give me $25 a year were Elijah, Mary, and David Weir’s wife, Sarah. David Weir’s wife refused to support me or give me money, and then I said she should not have any of my money. Elijah also refused • to support me. I deeded the place to Mary because I wanted her to have a home. I deeded eighty-seven acres of land to Elijah in the same way. I had no more land, but Elijah was to give me $300 on the place I deeded to him, and I intended to use that money, together with my rent paid me by Elijah Hal-sell, in buying a home for David’s wife, Sarah, provided they carried out their part of the understanding about providing for me. I went into the arrangement with a view of providing a home for each of my children, and for getting a support for myself. They were to let me live among them, first with one and then with the other, and each was to give me $25 per year. * * * There was no time for the payment of the $25 per year, considered at the time I made the arrangement with my children, but I thought they would give it to me whenever they (I) needed it; they were to give me a written contract, but they never did. I deeded Elijah the eighty-seven acres, notwithstanding he didn’t give me the contract. * * * I have never gone to any of the parties and asked them for the money. David Weir offered me $20 last spring, but I didn’t take it, as I didn’t consider that I had given them any thing for them to give me $20 for. Thomas Weir got it from David and wanted me to take it, but I wouldn’t. They didn’t tell me what they offered it to me for. * * * Thomas Weir didn’t get the money from Elijah on my order. The $300 that Elijah was to pay was to come into my hands, and I didn’t give any order for it to be paid to Weir. I wanted the money to buy a place for Sarah J. Weir, but they hampered me and bothered me, and then I said they shouldn’t have a cent of my money. Elijah Halsell come and told me my rent was ready, and I told him to take it to Elijah, as I had nothing to do with it now. I don’t know whether Halsell brought me the rent before I deeded the eighty-seven acres to Elijah or after. I did not tell my son, Elijah, to sell the rent cotton, and turn the rent over to Weir. There was an understanding before there was any deed made, that I would use the $300, that Elijah was to pay on his eighty-seven acres of land, in purchasing a place for Sarah J. Weir. * * * Elijah attended to my business, and that is why I sent Elijah Halsell to him with my rent cotton. * * * The money that was to be paid to me, that is, the $25, was to be paid some time in 1892.” * *

Elijah Beam, a son of the plaintiff, Jesse Beam, in his testimony, says: “In 1891, my father made some arrangements with us about a division of his property; after talking over the matter for some time, .in which he said that he wanted to make the division so that he could make a living for himself and have one of his girls to take care of him, and his first idea was to give me and my sister at Dong Town $500 apiece, and give the 112 acre farm to my other sister, Mrs. Peay. The way he raised the $500 for me and my sister was this: Some time after he decided to make the division I have mentioned, he found that he couldn’t sell the Pink’s place, as was his intention, so he gave that to me for my $500, and required me to pay $300 towards raising the money for my sister, Jane Weir. The balance of the $500 he got from Elijah Halsell for rent, and also rent from me. He gave the home place to Mrs. Peay. The rent from myself and Elijah Halsell was only $165. So that my sister, Jane Weir, did not get quite $500. She did get exactly $465, i. c., $300 that I paid on land, and the $165, the proceeds of rent cotton. The understanding that we had was, that we were to take the advancement, and give to my father $20 each per year. We, that is, Jane Weir, Mrs. Peay, and I, were to pay him the $20 each once every year. I was not to pay anything for the first three years, as I had to pay $300 on my land; but the other two were to pay it from the start. No special ^time was mentioned for the payment of the $20. It was understood that it would be-paid in the fall. I was to pay $300 on my tract to my sister, Jane Weir, and it was to be invested in land for her. I sold the cotton under my father’s instructions, and was to pay the money to Jane Weir for the same purpose. I paid the money to Thomas Weir, my sister’s son. My father directed Thomas Weir and I to invest-the money in land for Jane Weir. My father made me a deed in October to the tract of land I got. He made the deed to me first. He made deed to my sister, Mrs. Peay, for the land she got some time in Noverqber or December. I paid the money to Thomas Weir in December. When my deed was made, Mr. Thompson said I ought to give Jane Weir a note for the $300 I was to pay her. Thomas Weir said there was no use for a note, and my father said, ‘No, not to make a note.’ The arrangement was made in October for this money to be invested in the Dong Town place for Jane Weir. My father gave instructions about buying the Dong Town place, both in person and by letter. These instructions were given to me and Thomas Weir. The instructions were, that the property was to go to David Weir and Jane Weir, for life, and at their death, it was to go to their two sons. The instructions by letter were given to David and Jane Weir. The letter was written by my wife. I was present when it was written, and it was read over to him by my wife, and after-wards by Thomas Weir. The letter was written in October, the same day my title deed was made. * * * My father never got a reply to the letter we were talking about awhile ago. The Weirs came up some time in November. Thomas Weir came up with the other Weirs. My father went with Thomas Weir to Blackstock, to give him written notice to handle the money for Jane Weir. When all this happened, I had not sold the cotton and had not delivered the money to Thomas Weir. My father did not ask me to give him the money, nor did he tell me not to give it to Weir. * * * I was not present when David Weir and Jane Weir came up to see my father. I saw them together the next day, and heard my father say to them to let him know when they got ready for the land trade, and he would come down, or that the money would be ready. My father said all along that he wanted me and Thomas to put the money down in a place for Jane Weir.”

Thomas Weir, one of the defendants, in his testimony, says: “When Thompson finished writing the deed, he said to my uncle, ‘Now, when you get this title, the land will be yours, and you ought to pay the money;’ my uncle said, ‘I am to get the money from Mr. MacDonald;’ and then I spoke up and said, ‘There is no use giving a note, as I am to'manage tbe matter for mother, and I can trust you all for it.’.-* * * We decided to get this place from Cohen at the time of the original agreement. My grand-father understood we would buy this place from Cohen on the very day of the agreement. We did not buy the place until some time in January, for the reason that we could not see Mr. Cohen, and some time in December my grand-father forbid me spending the money for the land. I had made all arrangements to take this particular place (Cohen place) at the time my grand-father forbid me to put his money in it. * * * I had the money with me at the time he forbid me spending it for the land. He did not demand the money from me, he simply forbid my spending it. I offered to pay my grand-father the $20 under the terms of the agreement, telling what I meant it for. The money tendered him wás gold. * *. * The money for the cotton and from my uncle was paid to me some days before my grand-father forbid me putting it into the land.”

Elijah Halsell, in his testimony, says: “I told him (Jesse Beam) as soon as it (the rent) was ready, and he told me to take it to Mr. Elijah Beam and Mr. Thomas Weir, saying that all the business was in their hands. * * * I told- Mr. Beam the rent was ready about the latter part of November, that year.” " .

N. P. Varnadore says: “I was with Mr. Jesse Beam -when he gave the cotton to Thomas Weir; at that time (he said) that (he) had nothing more to do with it; that he, Thomas Weir, and Elijah Beam were in charge of it.”

At the close of plaintiff’s testimony, the defendants moved for a nonsuit.

The special referee filed his report (which will be set out in the report of the case), in which he recommended that the land be sold, and out of the proceeds the plaintiff be paid his $465. !

Numerous exceptions were filed by the defendants to the report of the special referee. His Honor, Judge Benet, heard the case upon exceptions to the report of the special referee, and ordered- that the report be confirmed and the exceptions overruled. His order then provided for a sale of the land and payment out of the proceeds of the amount claimed by the plaintiff. The defendants appealed to this Court upon numerous exceptions, which will be incorporated in the report of the case.

1: The first exception complains of error in overruling the demurrer. A demurrer will not be sustained, if- 'thé allegations of the complaint show that the plaintiff is-entitled to any relief whatever. The allegations -contained in paragraph two of the complaint are, in themselves, sufficient to show that the demurrer cannot be sustained: Stroman v. O'Cam, 13 S. C., 100.

• '2 The next exception imputes error in failing to sustain the motion for a nonsuit. The plaintiff seeks relief within the equitable jurisdiction of the Court, and the law as to nonsuits has no application in such cases. Woolfolk v. Graniteville Mfg. Co., 22 S. C., 332.

•3 4 The conclusion reached by the Court will render it unnecessary to consider the other exceptions seriatim. The testimony shows that Jesse Beam did not intend that the money itself should be delivered to Mrs. Sarah Jane Weir, and, therefore, the law as to gifts has no application to this case. The testimony, however, shows' clearly and unequivocally it was the intention of Jesse Beam that the money should be invested in the Long Town place, or some other place, as a home for Mrs. Sarah Jane Weir, without further control over the money by the said Jesse Beam, and this created a complete trust, which could not be revoked by afterwards giving notice to Thomas Weir not to invest the money in a home for Mrs. Sarah Jane Weir. As we have hereinbefore set out the testimony upon which we base this finding, we do not deem it necessary to refer to eaqh circumstance herein mentioned bearing upon this question, but will proceed to cite a few authorities to sustain the views of the Court as to. the. law governing this case. In A. & E. Enc. of Law, vol. 8, page 1323, the law is thus stated: “The title to choses in action, as well as that to any other class of property, may be' voluntarily transferred in another manner, without even a delivery, and that is by a declaration of trust. The title to á chattel can ordinarily be transferred by way of gift, as W¿ have heretofore seen, by delivery of the article, actually or constructively, to the donee or to some person in trust for-him. It is also possible for the donor to constitute himself a- trustee for the donee. In order to do this,'it is only necessary for the owner, in clear and unequivocal language, or by acts amounting to the same thing, to declare that he henceforth holds the choses in action, or property, as trustee for the donee. When this is duly executed by the owner, by an act intending to be binding on himself, equity will uphold it, whether the property be legal or equitable, or whether it be capable of transfer or not. “If the trust is perfectly created, so that the donor or settler has nothing more to do to create it, and the party seeking to enforce it has no need of further conveyance from the settler, and nothing is required of the Court but to give effect to the trust as an executed trust, it will be carried into effect, although it was without consideration, and the possession of the property was not changed.” On page 1340 of the same volume it is said: “If the property is delivered to a trustee for the benefit of the donee, the trustee, if he accepts the trust, must execute it, and the cestui que tntst has a good right of action against him if he does not. The donor or settler has no control over it, unless some reservation is lawfully made in the trust. So in case of a valid declaration of trust, like other gifts, when completely executed, it is irrevocable.” See, also, Gadsden v. Whaley, 14 S. C., 210; Caldwell v. Wilson, 2 Sp., 75; Richardson v. Inglesby, 13 Rich. Eq., 59. When a trust is complete in its creation, it is not rendered revocable by reason of the fact that certain things remain to be done to carry its terms into effect. The creation must be in presentí; the execution of its proT vision may be, and generally is, in futuro. The testimony does not show that Mrs. Sarah Jane Weir did, or failed to do, anything by which she was estopped from insisting upon the execution of the trust and the enjoyment of its benefits.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the complaint dismissed.

Mr. Chief Justice McIver. I concur in result. •