Supreme Court of South Carolina, 1928

Drake v. Drake

Supreme Court of South Carolina · Decided December 5, 1928 · Beease, Watts, Messrs, Cothran, Stabler, Carter

145 S.E. 705; 148 S.C. 147; 1928 S.C. LEXIS 184 (South Eastern Reporter)

Counsel

Messrs. Price Poag , for appellants, cite: Parol testimony permissible to show real consideration of written instrument: 72 S.C. 410 . Cases distinguished: 112 S.C. 431 ; 93 S.C. 379 ; 120 S.C. 408 . Proper to cancel or set aside deed here: 123 N.W., 813; 28 L.R.A. (N.S.), 608; 21 L.R.A., 605; 188 S.W. 843. When complaint attacked by demurrer it must always be liberally construed in favor of plaintiff: 132 S.E., 616 . Equity will not suffer a wrong to be without a remedy: 1 DeS., 429. Family agreements are favorites of equity: 32 S.C. 263 ; 141 S.C. 265 ; 54 A.L. R., 964. As to admission of parol testimony to change character of deed absolute upon its face: 144 S.E., 512 ; 100 S.C. 397 . Messrs. J. Robert Martin and Benj. A. Bolt , for respondents, cite: Deed reciting consideration, and under seal, is conclusive unless attacked for fraud or undue influence: 119 S.C. 340 ; 113 S.C. 390 . Sale of land after devise and before death of testator, is a revocation of devise pro tanto: 112 S.C. 434 ; Harper's Eq., 117; 141 S.C. 524 . Complaint demurrable here: 21 S.C. 226 ; 129 S.E., 49 . No grounds for cancellation of deed here: 120 S.C. 408 ; 93 S.C. 376 ; 111 N.E., 99. Same, personal right which grantor alone possesses: 9 C.J., 1186, Par., 51. Cases distinguished: 28 L.R.A. (N.S.), 611.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice BeEASE.

*152 The plaintiffs appeal from the order of Hon. William P. Greene, Special Judge, sustaining the demurrer interposed by the defendant in this cause. The reasoning of the order, which will be reported, is entirely satisfactory to this Court. In addition to the authorities cited by Judge Greene in support of his holding, we call attention to the recent case of Myrick v. Lewis, 139 S. C., 475, 138 S. E., 198, which was decided about the time the order of the Special Judge was filed in the lower Court.

The judgment of this Court is that the order appealed from be, and the same is hereby, affirmed.

Mr. Chief Justice Watts and Messrs. Justices Cothran. Stabler, and Carter concur.

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