Beaufort Veneer, Etc., Co. v. Hiers , 142 S.C. 78 ( 1927 )

When I read the strongly worded opinion of Mr. Justice Cothran, I was inclined to agree with him that this cause should be reversed. A further and more careful reading of the record, however, has forced me to the conclusion that the evidence adduced in the lower Court does not justify all the inferences drawn therefrom by Mr. Justice Cothran, and that the defendants Mrs. Hiers and Rizer do not deserve the severe castigation put upon them by the learned justice.

The law applicable to the case is well settled in my opinion, and is correctly stated by the Circuit Judge in his decree, as far as he went. I agree also with most of the legal propositions taken by Mr. Justice Cothran. I shall refer to one, however, later, taken by him, that I think he should have stated a little differently.

The issues in this case revolve mainly around the facts and their application to the law. Without going extendedly into the testimony introduced at the hearing, I shall make a few observations as to the main reasons advanced by Mr. Justice Cothran for his view that the deed attacked should be set aside. These I understand to be: (1) The gross inadequancy of the consideration of the deed from Hiers to Rizer; (2) the payment of the purchase money in cash; (3) the fact that Hiers had his brother, a lawyer in Hampton, to prepare the deed, and did not at the time and place execute it; (4) failure of Rizer to make examination of title and to take immediate possession of the premises; (5) failure of Hiers to produce as witnesses the persons to whom he claimed he paid the money received from Rizer; (6) the hasty conveyance of the land by Rizer to Mrs. Hiers, who could have purchased direct from her husband at a saving of $200 in the purchase price; and (7) doubt that Mrs. Hiers could have had as much as $1,800 in cash, derived from the sale of her chickens, eggs, and hogs and the income from her own farm of 110 acres.

For brevity's sake, I refer hereafter to the points stated by number only.

(1) Hiers sold the land to Rizer for $2,200, around $7 per acre. Mr. Justice Cothran thinks that it is worth $7,500, or around $25 per acre. One witness, Mr. Mills, testified that the land was worth the amount fixed by Mr. Justice Cothran on June 3, 1926, the day he testified. This seems to be the only testimony that the value was so much. Messrs. Breland, Bennett, and Thomas, in their testimony, valued the place at the time of the sale from Hiers to Rizer at $2,000. Mr. Bennett stated that there was no demand for farming lands at that time. In addition to the testimony mentioned, this Court can well take judicial cognizance of the fact that for several years past farming lands in South Carolina, and especially those in Colleton and surrounding counties, have sold at very low prices, when sale could be made at all; this condition being due to the inability to grow cotton on account of the destructive boll weevil. Many former valuable farms in that section have been sold under mortgage, and quite a number for taxes. Certainly the proof of inadequate consideration was lacking.

(2) Rizer, Hiers, and two other witnesses swore that Rizer paid $1,500 of the purchase price in cash, deducting the amount of the mortgage debt he assumed. There was testimony that Rizer was a man of considerable wealth, and that he often had goodly sums of cash in his pockets. Numerous banks in that section of the State were then closed; many, still open, were notoriously known to be insolvent. These facts, with the added knowledge that some people just prefer cash to checks, seem sufficient to dispose of the fraud charge because of the cash payment. The writer, in his experience as a practicing attorney, has seen many times more cash than $1,500 paid over in land transactions, when there was absolutely no question as to the good faith of the parties.

(3) It seems easy to figure out why Hiers went to his lawyer brother in Hampton to prepare the deed, because he probably could get the work done free. Many people just naturally hate to pay for drawing land papers. Too, many people do not want to sign deeds to their lands until they get the money in hand, or see it in sight. Then Mrs. Hiers had to renounce her dower interest, and she was not in Hampton when the deed was prepared.

(4) Of course, it would have been the act of a prudent man for Rizer to have had an attorney examine his title. Everyday experience causes us, though, to know that thousands of tracts of land have been bought and sold in South Carolina without purchasers making any examination of title. In this case, Rizer knew the land; he lived close to it. Almost every one in a farming community knows the history of the land titles in the neighborhood, and generally know all about the mortgages.

It is true Rizer did not take immediate possession on October 15, 1924, the date of his deed, and he did not proceed to gather the crops, which may have been on the place, as stated by Mr. Justice Cothran. Technically, under the law, as a grantee, he probably had the right to take possession and to take charge of the crops, unless possession and the crops were reserved to the grantor. We know, though, that few deeds to farming lands made in the fall contain reservations as to possession and crops. Our people generally think growing crops do not pass by the deed, and few grantees would attempt to exercise rights to the crops. And I fail to find in the evidence anything to show that at the time of the execution of the deed there were any growing crops on the land.

The legal proposition stated by Mr. Justice Cothran, "that a change of possession does not accompany the execution and delivery of a deed, is a badge of fraud," is a correct statement of the law, in so far as it goes. The last two cases cited by him (Nelson v. Good, 20 S.C. 223, and McGeev. Wells, 52 S.C. 472; 30 S.E., 602), in which that principle is approved, stated further though that this badge of fraud is not an irrebuttable presumption of fraud.

(5) The record shows that most of the witnesses, even the defendants, were placed on the witness stand by the plaintiff. The plaintiff, it seems, was "digging" into the transactions. The attorney for the plaintiff talked to some of the witnesses before the reference, evidently inquiring into what they would testify. After the defendant Hiers had given, in his testimony, the names of the persons to whom he had paid the money, which had been paid to him by Rizer, several days intervened before the reference finally closed. The defendants seemed satisfied with the showing they had made. The plaintiff, if it thought Hiers had made false statements, could easily have summoned as witnesses the persons referred to by him, and had these persons examined as to the truth of his statements. Since there was no contradiction of Hiers' testimony, I do not see how this Court could, without any evidence whatever, presume that Hiers committed perjury.

(6) In a most interesting opinion of Mr. Justice Cothran in a case now before this Court, he called attention to "the recognized love of the Anglo-Saxon for his land." That love is as strong, may be stronger, in the women of the race than it is in the men. The depth of that love is not fully realized until the Anglo-Saxon sees his land passing from his possession into the possession of another. Try as hard as we can, we men, even if we happen to be judges, cannot comprehend and understand the minds and hearts of women. Solomon, who should have known much about thousand of them, admitted that he could not fathom them. I have heard that some women like to show their husbands that they can save the property when the head of the family has lost it. And I have been told that a woman reserves the right to change her mind. It may be that a philosophy like that will explain why Mrs. Hiers would not purchase the land from her husband, and yet within 9 days bought it of Rizer at a profit to the latter of $200. I know of a case not long since where the husband, who was not insolvent, sold a large tract of land at what was considered an excellent price; within 5 days, at the instance of his wife, he repurchased just about half of the place for the amount for which he had sold the whole of it.

(7) If Mrs. Hiers was a thrifty woman, she probably could have saved up $1,800 in 16 years, as she testified, from the sources mentioned by her. Many farmers' wives are doing even better than that now, for our Winthrop demonstration agents have been showing them for some years how to make money, even when their husbands fail on the farm. The prices that lawyers and judges pay for eggs, butter, poultry, hams, etc., attest strongly the truth of Mrs. Hiers' testimony.

My view is further strengthened because of other things: The plaintiff did not show that Hiers was insolvent. While the Sheriff returned a nulla bona on the execution, and Hiers had claimed a homestead in his other real estate, the homestead proceedings were not concluded, and no inquiry seems to have been made as to the value of personal property Hiers owned.

There was not sufficient testimony that either Rizer or Mrs. Hiers knew of Hiers' insolvency, if he was insolvent; and no evidence showing that either of them had notice of plaintiff's suit against Hiers. Conceding that which is most probable, the knowledge of Mrs. Hiers of these two things, still we cannot presume, without some evidence pointing thereto, that Rizer had knowledge thereof.

In passing upon issues of fact in a case of this nature, and in deciding if the acts and conduct of the parties were fraudulent, we must judge the parties by their situation, experience, education, their manner of doing business, and the like. Perhaps judges, lawyers, bankers, or merchants would not have bought and sold land as these farmers bought and sold it. Some act of a lawyer or banker might be regarded as positive proof of fraud, while a similar act done by a farmer or mechanic might have no bearing whatever in establishing fraudulent conduct.

I feel sure that his Honor, Judge Johnson, resident Judge of the Circuit, who heard this case, knew personally most, if not all, of the witnesses; certainly, he knew their respective reputations for veracity. In fraud cases, the credibility of the witnesses is worth much in determining the value to be placed upon their testimony. When fraud is charged, the proof of the charge depends greatly upon the character of the person accused, as well as that of the witnesses who bring the accusation.

The burden rests upon the appellant to convince this Court that the Circuit Judge committed error; and I am not so convinced.

MR. JUSTICE STABLER concurs.