Supreme Court of South Carolina, 1928

National Bank of S.C. of Sumter v. Shaw

Supreme Court of South Carolina · Decided February 1, 1928 · Brease, Messrs, Cothran, Stabrer, Carter, Tpiurmond

141 S.E. 556; 143 S.C. 307; 1928 S.C. LEXIS 19 (South Eastern Reporter)

Counsel

Messrs. Lee Moise , and Epps Levy , for appellants, cite: Is mortgage void under the Statute of Elizabeth?: 38 S.C. 437 ; 42 S.C. 487 ; 28 S.C. 444 ; 64 S.C. 355 ; 44 S.C. 193 . Is mortgage void under Assignment Act?: 27 S.C. 285 ; 12 S.C. 154 ; 26 S.C. 449 ; 64 S.C. 354 ; 109 S.C. 276 . Cases distinguished: 119 S.E., 582 ; 129 S.C. 270 ; 20 S.C. 494 ; Bail., Eq., 297; 53 S.C. 545 ; 39 S.C. 209 . When equity gives relief to a creditor, it will do so in behalf of all the creditors, and will marshal the fund among them according to their respective rights: 37 S.C. 214 ; 41 S.C. 63 ; 22 S.C. Eq., 55; 25 S.C. Eq., 46; 27 C.J., 860. Messrs. Purdy Bland , for respondent, cite: Transaction void under Statute of Elizabeth: 119 S.E., 582 ; 32 S.C. 494 . Cases distinguished: 37 S.C. 214 . Creditor may proceed in equity to have a deed set aside for fraud, and the land sold for payment of his debt: 33 S.C. 530 ; 20 S.C. 503 ; 94 S.C. 84 ; 2 Bail., 324.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Brease.

This was an action to set aside a deed of conveyance of E. F. Shaw to Bertha G. Shaw, and the mortgage of Bertha G. Shaw to the City National Bank of Sumter, S. C., an appellant. The cause was first heard by Hon. E. C. Haynsworth, Master of Sumter County, who decided in favor of the validity of the deed and mortgage which were attacked. The plaintiff excepted to the Master’s report, and Circuit Judge Townsend reversed the Master, and directed the cancellation of the two instruments.

The cause involved, mainly, questions of fact. The burden is upon the appellant to show error in the findings of fact as made by the Circuit Judge. We have examined carefully all evidence in the case, and have reached the conclusion that the Master was correct, and that the Circuit Judge was in error in their respective findings. The report of the Master will be reported.

The judgment of this Court is that the decree of the Circuit Judge appealed from be, and the same is hereby, reversed.

Messrs. Justices Cothran, Stabrer and Carter, and Mr. Acting Associate Justice J. Wm. Tpiurmond concur.

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