|Martin V. Adams et al.
(Supreme Court of South Carolina, June 21,1888.)
1. Evidence—Admissions—Impeaching Judgment.
Where an action is brought against a judgment creditor and debtor,
to set aside the
judgment as a fraud on other creditors, and the debtor dies before a
hearing, without answering,
and the suit is prosecuted against the other defendant alone, the
admissions of the debtor,
made in his life-time, tending to impeach the judgment, are not
2. Witness—Competency—Transactions With Deceased Persons.
On a bill filed against a judgment debtor and creditor, to set aside
the judgment as a fraud on
other creditors, where the debtor dies before a hearing, and the
suit is prosecuted against the
creditor alone, he is not prevented from being a witness for himself
by Code Civil Proc. S. C. § 400,
providing that no one who is or has been interested as assignor in
the event of an action shall be
examined as a witness, as to any transaction or communication
between him and a person at the time
of examination deceased, against one prosecuting or defending as
executor, administrator, heir at law,
next of kin, assignee, legatee, devisee, or survivor; but said
section renders plaintiff an incompetent
witness as to anything said or done by the deceased.
3. Appeal—Review—Conflicting Evidence.
In an action to set aside judgments held by a daughter against her
father, and a sale of land hereunder,
on the ground that they were to hinder, delay, and defraud
creditors, where the court below found, upon
conflicting evidence, but sufficient to support the finding, as
matters of fact, that the judgments were
not fraudulent, and had not been settled, the judgment will be
affirmed on appeal.
4. Same—Matter Not Affecting Appellant.
Where plaintiff, the holder of a judgment, filed his bill against
the debtor and an heir of another judgment
creditor, to set aside the latter judgment as fraudulent, and the
debtor died before a hearing, after the court
had refused the relief sought, and dismissed the bill, plaintiff had
no further interest, and could not be
heard to complain because the court ordered, further, that the
surviving defendant might proceed to collect
his judgment upon taking out letters of administration upon the
estate of the original holder of the judgment.
Appeal from common pleas circuit court, Abbeville county; J. J.
Simpson, C. J. The decree of his honor, the presiding judge in this
case below, contains a statement of the facts
sufficiently full for the understanding of this opinion, without
"The above-stated case came on for hearing before me at the February
term of the court at Abbeville,
upon the pleadings and testimony taken and reported by the master
for the said county.
On the 9th of June, 1887, the summons and complaint were served on
the defendants herein.
On the 18th of July, 1887, the defendant John D. Adams died
intestate, at about the age of 90 years, without
having answered the complaint. Shirley B. Whatley, the other
defendant, answered, denying the material allegations
of the complaint.
No personal representative of John D. Adams has been made a
The object of the action is to set aside two judgments against the
defendant John D. Adams:
the one confessed on February 1, 1867, by him to his daughter, K.
Q. Whatley, for $1,500;
and the other, in favor of M. McDonald, on the 13th of April,
1867, for $400. This last judgment was assigned
to K. Q. Whatley by M. McDonald during the year 1867. It is
further sought to set aside two sales of certain lands
which belonged to the defendant John D. Adams, made by the
sheriff—the first in 1867, to K. Q. Whatley, and the last
under the judgment of the plaintiff which was obtained in 1870, or
about that time, and assigned to him shortly
thereafter—to the defendant Shirley B. Whatley, who bid off
the land, one hundred and sixty acres, on sale-day,
in February, 1887, and refused to pay in the amount of his bid,
claiming that the money or proceeds of the land
were applicable to the judgments of K. Q. Whatley. The said
Shirley B. Whatley is the only heir at law of the said
K. Q. Whatley, who died about the year 1873, intestate, and
no administration has ever been made of her estate.
Shirley B. Whatley, now the sole defendant, alleges in his
answer that there was no assignment of the judgments
held by K. Q. Whatley against John D. Adams, and that
this action cannot be maintained in the absence of her
personal representative. The personal representative of neither
J. D. Adams nor K. Q. Whatley could be bound by
any decision which may be rendered; but the plaintiff claims that
Shirley B. Whatley has made himself the
executor de son tort by intermeddling with the estate of the said
K. Q. Whatley; and, Shirley B. Whatley
claiming to be the equitable owner of that estate, he may be bound
so far as the equity extends; and, as plaintiff
insists on a trial on the pleadings as made, I have considered the
entire case, and will render judgment
upon the merits thereof. The plaintiff alleges that the judgment
confessed by John D. Adams to K. Q. Whatley, in 1867,
was fraudulent, and intended to hinder plaintiff's assignor, and
other creditors of the said John D. Adams,
and that the assignment of the judgment held by M. McDonald
was in consideration of money paid by the
said John D. Adams, and was assigned to K. Q. Whatley
with a fraudulent intent; that a full settlement of these
judgments was made between John D. Adams and Shirley B. Whatley
some time after the year 1876, and they are now satisfied. The
confession of K. Q. Whatley was made more than twenty years
before the commencement of
this action, and that to M. McDonald was in April, 1867, and
was in fact, and I shall assume, transferred to
her more than twenty years before the 30th of May, 1887, the
commencement of this action; the complaint and
summons having been filed in the sheriff's office on that day. After
so long a time as that, it is to be presumed
that all things were rightly done. To rebut this presumption, the
plaintiff introduces the testimony of James D. Lomax
that John D. Adams said the transactions in regard to the
judgments sought to be set aside were had lor the purpose
of saving himself a home, and because other creditors were pressing
him, and that K. Q. Whatley also said that the
judgments confessed and assigned were for the purpose of saving the
property of John D. Adams. Verbal admissions ought to be
received with great caution; the evidence, consisting, as it does,
in the mere repetition of oral
statements, is subject to much imperfection and mistake; the party
himself either being misinformed, or the witness
having misunderstood him. It frequently happens, also, that the
witness, by unintentionally altering a few of
the expressions really used, gives an effect to the statement
completely at variance with what the party
actually did say. This caution seems very appropriate in this case,
because both John D. Adams and
K. Q. Whatley are dead.
They can neither testify in regard to the alleged statements or
admissions, nor interrogate the witness as to time,
place, and circumstance; neither of which is given. The witness does
not allege that they admitted there was an
absence of consideration for the confession, and, on the contrary,
expressly says that he heard no such statement
from John D. Adams as to his indebtedness to the said K.
Q. Whatley. He further says that he gave similar evidence in
another action which he brought, and which was tried before a jury
in February, 1877, soon after K. Q. Whatley's death, to set aside
the judgments now sought to be set aside, and that in said suit he
was unsuccessful; the jury finding that the judgments were bona
fide, as appears by their finding in the record introduced in
evidence in this case. Prejudiced, then, as he probably is,
statements of oral Admissions by these parties could not rebut the
presumption arising from lapse of time. A receipt of the defendant
Shirley B. Whatley for $500 in full satisfaction of these
judgments, and sundry statements by him and John D. Adams
that they considered the judgments thereby extinguished, have been
adduced as evidence. These can have no effect on the original
transaction, and are, to my mind, no evidence of admission by the
parties to it of the fact that the transactions were fraudulent in
their inception. The defendant Shirley B. Whatley and the
witness J. D. Lomax both testify that there was service of
about 17 years on the part of K. Q. Whatley for John D. Adams,
from which an adequate consideration for the whole transactions
might be inferred. The proof is not sufficient to induce me to
declare the judgments fraudulent. The receipt given by Shirley B.
Whatley lor $500 does not purport to be a payment of the
balance due on the said judgments, and it cannot operate as a
release and satisfaction. It might be explained, and the
consideration inquired into as against the plaintiff. The testimony
is competent, but not as against a personal representative of
John D. Adams. Such representative would be a necessary party to
a complete determination of all the questions herein
arising, and he ought to interpose the objection to the admission of
the testimony. Therefore adjudge that the defendant is stopped from
denying that he received $500, and must, as against his equity, also
receipt therefore. It does not appear by any sufficient testimony
that the estate of J. D. Adams is insolvent. The prior
judgments held by K. Q. Whatley at the time of her death are
entitled to have the proceeds arising from the sale of the land,
made in 1887, applied to them.
The defendant Shirley B. Whatley cannot, as sole distributee
of K. Q. Whatley, receipt for the same; but, if he shall
obtain letters of administration on her estate, he may do so;
and, in consideration of the equities herein established, he has
leave to obtain such letters, and enter such credit, as of the date
of his purchase, provided he do so, or procure such credit to be
legally made, by the second Monday in June next. If he fail, then
said sale shall be set aside, and a resale made; the sheriff to hold
the proceeds subject to the prior judgment of K. Q. Whatley.
I rind, as matter of fact,
(1) that the confession of judgment by J. D. Adams to K. Q.
Whatley was not fraudulent, nor intended to hinder the creditors
of the said J. D. Adams; nor was the assignment of the judgment held
by M. McDonald to K. Q. Whatley taken for that purpose.
(2) That there was no settlement in full of said judgment between
John D. Adams and Shirley B. Whatley.
As matter of law, I find
(1) that the two judgments of K. Q.
Whatley against J. D. Adams are valid and subsisting liens,
entitled to the proceeds of the land sold by the sheriff in
February, 1887, and bid off
defendant Whatley, and are prior to plaintiff's judgment;
(2) that the complaint be dismissed, each party to pay his own
February 16, 1888. J. J. Norton, Presiding Judge."
The purpose of the action was to set aside two judgments, mentioned
in the said decree, on John D. Adams, in favor of his
daughter, K. Q. Whatley, the first a confession, and the
second assigned to the said K. Q. Whatley by one McDonald;
it being alleged in the complaint that said judgments were
fraudulent, and intended to hinder, delay, and defraud creditors.
Also to vacate two sales of the real estate of the said John D.
Adams, sold to the defendant Shirley B. Whatley,—one
under said judgments, and the other under plaintiff's judgment. The
case was heard by his honor, Judge Norton, upon written testimony
taken by the master and reported. His honor found, as matter of
(1) "that the confession of judgment by J. D. Adams to
K. Q. Whatley was not fraudulent, nor intended to hinder the
creditors of the said J. D. Adams, nor was the assignment of
the judgment held by M. McDonald to K. Q. Whatley taken for
(2) "that there was no settlement in full of said judgments
between John D. Adams and Shirley B. Whatley." And, as matter
of law, "that the two judgments of K. Q. Whatley against
J. D. Adams are valid and subsisting liens, and entitled to the
proceeds of the land sold by the sheriff in February, 1887, and bid
off by defendant Whatley, and are prior to plaintiff's
The main and first point in the appeal is whether the findings of
fact, above, of the circuit judge, can be sustained.
We have carefully examined and considered the testimony, and we
think the rule governing this court upon such questions requires us
to affirm the findings of fact of the circuit judge. Said findings,
in our opinion, are not only not without testimony, nor with the
evident weight thereof against them, but sufficiently supported. It
is urged, however, that the circuit judge erred in various
particulars in reference to the testimony, to-wit, in receiving
incompetent testimony; in rejecting certain testimony, and in not
giving sufficient weight to certain testimony received, but for
which the decree might have been different in the findings of fact.
The errors assigned in the exceptions as to testimony, refer to the
witnesses J. F. C. Dupre, Shirley B. Whatley, James D. Lomax and
W. H. Moore. As to the witness Dupre, error is assigned
because his honor impliedly, if not expressly, sustained the
exceptions of the defendant to this witness, and also that he did
not consider his evidence. The entire testimony was taken by the
master, and reported to the court, and the exceptions of the parties
were noted in the report. We do not see in the case that the circuit
judge sustained the exception of defendant to this witness, nor that
he failed to consider it. But, even if he did, we do not think there
was error. The testimony was as to statements alleged to have been
made by Adams in a letter or letters to the witness, said to
have been lost, impeaching the judgments. Adams was no party to the
cause; it having abated as to him by his death, before the hearing,
and we do not know by what rule of evidence these statements could
The testimony of Shirley B. Whatley is excepted to as
obnoxious to section 400 of the Code.
That section excludes the testimony of a party to the action, or one
having an interest which may be affected thereby as to any
transaction or communication between him and a deceased party, as a
witness against such party then prosecuting or defending the action
as executor, administrator, heir at law, next of kin, assignee,
legatee, devisee, or survivor, of such deceased party. The witness
had an interest in the suit; but the plaintiff, against whom he was
called as a witness, occupied to the deceased, Adams, neither one of
the relations specified in the act. And this applies to the
testimony of S. B. Whatley throughout, including the matter
of the receipt for $500. As to the testimony of Lomax. The appellant
is mistaken in supposing that this testimony was excluded. His honor
considered and discussed it; and it was for him to say what effect
it should have, under the circumstances, upon his conclusions. The
testimony of the plaintiff, we think, was obnoxious to section 400
of the Code, as to transactions and communications between himself
and Adams. We do not find that the testimony of W. H. Moore
was ruled out. The defendants' attorney, at the taking of said
testimony, interposed an objection at one point as to inferences
drawn by the witness from what Shirley said to him. The inferences
were clearly incompetent, but, in addition, they were immaterial.
The appellant states in his exceptions many grounds, tending, as he
alleges, to show that the judgment confessed
by John D. Adams to his daughter K. Q. Whatley,
and the assignment to her of the McDonald judgment, were
fraudulent, and intended to delay, hinder, and defraud creditors.
These all involve matters of fact, which were, no doubt, duly
considered by the circuit judge. And, besides, they are
argumentative, instead of being distinct propositions of law or
fact, in which error is assigned, which is the appropriate purpose
of exceptions. The action below was originally against Shirley B.
Whatley and John D. Adams. Shirley B. Whatley was the only
distributee of K. Q. Whatley, who had died some time
before the action. John D. Adams never answered, and he died before
No administration had been taken out on his estate; nor had any one
administered on the estate of K. Q. Whatley.
Under these circumstances, the judge, in his decree dismissing the
complaint, allowed Shirley B. Whatley the privilege of
administering upon the estate of his mother; and, if he did so, he
had leave, until the second Monday in June thereafter, to receive
and enter a credit of the purchase money of the land upon the
judgment of his said mother; failing in this, then that the sale
should be set aside, and a resale made,—the sheriff to hold the
proceeds subject to the prior judgment of K. Q. Whatley.
The appellant excepts to this. But we cannot see upon what
sufficient ground. The decree having sustained the judgments of
Mrs. K. Q. Whatley as against the plaintiff's judgment, and
Shirley B. Whatley being her sole distributee, and the complaint
of plaintiff having been dismissed, we do not know what further
interest he has in the matter.
Having affirmed the findings of fact of his honor, the circuit
judge, upon a review of the whole case,
we affirm, also, his findings of law above, including his rulings as
to the receipt of $500.
It is the judgment of this court that the judgment of the circuit
court be affirmed.
McIver and McGowan, JJ., concur.
The Southeastern reporter, Volume 6
By West Publishing