Sims v. Ezell

Decided December 12, 1933

Supreme Court of South Carolina · decided 1933-12-12

Decided 1933-12-12

¶1 The opinion of the Court was delivered by

Mr. W. C. Cothran, Acting Associate Justice.

¶2 The report of the master, which was confirmed by the Circuit Judge in this cause, is satisfactory to this Court and is hereby made its judgment.

¶3 Let the report of the master and the Circuit decree be reported.

¶4 Judgment affirmed.

Mr. Citiee Justice Brease and Messrs. Justices StabrEr, Carter and Bonham concur.

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Case posture

Posture: Before SEASE, J., Spartanburg, September, 1931. Affirmed.Suit by B.A. Sims against Mrs. M.J. Ezell and others. From a judgment dismissing plaintiff's suit against all except the named defendant, plaintiff appeals. The master's report and the Circuit Court's decree, directed to be reported by Supreme Court, are as follows: REPORT OF THE MASTER This is a suit brought by B.A. Sims on behalf of himself and all other creditors of Mrs. M.J. Ezell (widow of M.B. Ezell), who shall in due time come into and seek relief by this action and contribute to the expense thereof. It appears that M.B. Ezell, late of the County of Spartanburg, departed this life about April 16, 1931, leaving surviving as his only heirs and distributees his widow, Mrs. M.J. Ezell (sometimes referred to as Mary Cudd Ezell), his daughters, Miss Sallie Ezell, Mrs. Zora Ezell Kirby, and Mrs. Eleanor Ezell Gandy, and a son, M. Luther Ezell, and a daughter-in-law, Mrs. Ethel Ezell, wife of M. Luther Ezell. The complaint alleges that Miss Sallie Ezell thereafter qualified as administratrix of the estate of M.B. Ezell, deceased, in the Probate Court. This suit is brought only against Mrs. M.J. Ezell, Mrs. Eleanor Ezell Gandy, M. Luther Ezell, and Mrs. Ethel Ezell; therefore no judgment can be had against the estate of M.B. Ezell or against either Miss Sallie Ezell or Mrs. Zora Ezell Kirby, as they were not made parties. The complaint also alleges that the estate of M.B. Ezell is insolvent, and that Mrs. M.J. Ezell, his widow, has no property. These allegations as to the insolvency of both Mrs. Ezell and of the estate, I find to be true from the testimony taken in this case. The testimony shows that on February 11, 1926, M.B. Ezell and his wife, M.J. Ezell, executed and delivered to the plaintiff, B.A. Sims, their promissory note for the sum of $800.00, payable twelve months after date, bearing interest at the rate of 8 per cent per annum from date, and that said note provides for the payment of 10 per cent. attorneys' commissions in case of collection by attorney, and that no part of said note has been paid by discount or otherwise, which allegations I find to be true. It appears from the testimony that on June 18, 1920, Mrs. M.J. Ezell made, executed, and delivered two deeds, one to M. Luther Ezell and the other to Mrs. Eleanor Ezell Gandy, conveying two certain tracts of land (described in the complaint), in which M.B. Ezell, her husband, never had any interest. The consideration named in each of these deeds was one dollar and love and affection. The testimony shows that the deed to M. Luther Ezell was left in the hands of M.B. Ezell and was not recorded till March 16, 1926, at which time he wanted to borrow on same to build a house on said lot, upon a building and loan mortgage. That the deed to Mrs. Eleanor Gandy was not put on record until March 30, 1929, when she wanted to borrow some money on same. The allegation of the complaint is that these deeds were kept off the record for the purpose of hindering, delaying, and defrauding the creditors of Mrs. M.J. Ezell, especially the plaintiff. The testimony of Mrs. M.J. Ezell was that, when she signed the note for $800.00 with her husband, she told the plaintiff that she had no property whatever, and that her name on the note would be no good. In view of the fact that Mrs. Ezell would be more likely to remember such details than the plaintiff, who has many transactions of this kind, I feel that she must have made this statement when she signed the note; certainly she could not have made these deeds with the intention of defrauding the plaintiff, as the deeds were made six years before she signed the note with her husband. Moreover, it was shown by the testimony that the plaintiff afterwards made a loan to Mrs. Gandy on the same land and must have known that she got this land from her mother, and what the consideration was. The decision in the case of Baugh Sons, Inc., v. Graham , 150 S.C. 398 , 148 S.E., 220 , clearly affirms the case of Carroll v. Cash Mills , which is reported in 125 S.C. 332 and in 118 S.E., 290 , holding that the rights of unsecured creditors date from the time when their claims become liens. As there has not yet been any lien of any kind on the property of Mrs. M.J. Ezell or any judgment against her, the property she deeded to her children in 1920 (deeds recorded, 1926 and 1930), can in no wise be affected by a judgment against Mrs. M.J. Ezell which judgment the plaintiff is entitled to for the first time in this suit. I therefore recommend that the complaint be dismissed as to all the defendants except Mrs. M.J. Ezell, and that the plaintiff have judgment against her for the sum of $800.00, together with interest at the rate of 8 per cent. from February 11, 1926, to this date, and that he also have judgment for 5 per cent. in addition as his reasonable attorneys' fee as provided in said notes. DECREE OF JUDGE SEASE Subsequent to the coming in of the master's report, which was filed September 24, 1932, this case was fully argued before me on exceptions to the report on behalf of plaintiff, and since the date of the argument, I have had the matter under advisement. I have given careful consideration to the issues involved, as raised by the twelve exceptions filed by plaintiff's counsel. The issues are fully and accurately stated in the report of the master in equity, who has also fully stated the history of the case, and who has announced his conclusion that the plaintiff should have judgment against the defendant Mrs. M.J. Ezell for the sum of $800.00, together with 8 per cent. from February 11, 1926, together with 5 per cent. attorneys' commissions, the whole amounting at this time to the sum of $1,302.00. Upon a consideration of the master's report, in the light of the argument of counsel, I am of opinion that the report should be confirmed, and adopted as the judgment of the Court. It is further ordered, adjudged, and decreed that all exceptions be and they are hereby overruled, and that the master's report be confirmed in every particular, and that the same be recorded along with the decree as a part thereof. Let plaintiff have judgment against the defendant Mrs. M.J. Ezell in the sum of $1,302.00, with leave to enter up judgment forthwith. It is further ordered that the complaint be dismissed, as to all other defendants.

Source: CourtListener

Court

Supreme Court of South Carolina

Parallel citations

172 S.E 129