Citation Codes

Equivalent Citations

citation codes

Docket Number

9586

Attorney(S)

Messrs. Octavus Cohen and Lewis G. Fultz, for appellant, cite: As to evidence of declarations of deceased to strangers: Jones Ev., sec. 140, p. 157. Want of consideration: 44 S.C. 378; 53 S.C. 348; 56 S.C. 169; 57 S.C. 95; 59 S.C. 560; 71 S.C. 577; 27 S.C. 201. Issues confined by pleadings: 84 S.C. 117, 120 and 541; 84 S.C. 399; 75 S.C. 512; 79 S.C. 478; 82 S.C. 464. Possession retained by grantor: 120 Ga. 1018; 48 S.E. 400. Nonpayment of consideration: 129 N.C. 325; 40 S.E. 179. Failure to record: Rice's Eq. 243. Delivery: 53 S.E. 351; 36 S.E. 227; 45 S.E. 262. Presumption as to: 52 S.C. 472; 89 S.C. 268; 95 S.C. 328. Exclusion of evidence: 103 S.C. 277. Conveyance to bastard children: Civil Code, secs. 3454, 3575; 86 S.C. 94 and 115. Charge on facts: 81 S.C. 374; 73 S.C. 383; 80 S.C. 383. Presumption of innocence: 102 S.C. 174. Charge as to burden of proof: 81 S.C. 541; 75 S.C. 512; 79 S.C. 478. Consideration for deed: 71 S.C. 577; 44 S.C. 378; 59 S.C. 560; 53 S.C. 348; 57 S.C. 95; 56 S.C. 169; 40 S.E. 179; 48 S.E. 400. Refusal to charge: 69 S.E. 1055; 66 S.E. 514; 61 S.E. 530. Messrs R. Lon Weeks and E.J. Dennis, for respondent. The former cites: 20 S.C. 232; 52 S.C. 132; 1 Hill L. 16.

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Smart Summary

Bunch et al. v. Dunning (Supreme Court of South Carolina, Feb. 8, 1917) — Case Summary

Factual and Procedural Background

This action was brought by Barcha Josephine Bunch and Susan (Mrs. Susan Stevens), respectively the daughter and widow of Josiah Stevens (deceased), to set aside a deed conveyed by Josiah Stevens to F.A. Dunning. The complaint alleged that Stevens died intestate on December 28, 1913, and that the plaintiffs were his only surviving heirs. The deed in question, dated May 23, 1913, purported to convey 290 acres to Dunning for $300. Plaintiffs alleged three grounds for invalidity: (1) the deed was without valuable consideration; (2) the deed was not delivered; and (3) the deed was executed to fraudulently defeat the plaintiffs' lawful rights and to favor persons who could not take directly from the deceased. The complaint further alleged that Dunning knew of and conspired in this scheme.

The defendant denied the complaint and asserted that the deed was executed for a valuable consideration and that he was the fee owner of the land. The case was tried before Judge Memminger and a jury in March 1916. The defendant's motions for a nonsuit and for a directed verdict were overruled. The court framed two issues for the jury: (1) whether Mrs. Susan Stevens was the lawful wife of Josiah Stevens and whether Mrs. Barcha Josephine Bunch was the only lawful child of their marriage; and (2) whether the deed was valid. The jury answered the first issue "Yes" and the second "No." Judgment was entered confirming the verdict, and the defendant appealed, raising eighteen exceptions.

Legal Issues Presented

Was Mrs. Susan Stevens the lawful wife of Josiah Stevens, and was Mrs. Barcha Josephine Bunch the only lawful child of that marriage? (Issue framed and submitted to the jury.)
Is the deed from Josiah Stevens to F.A. Dunning a valid deed? (Issue framed and submitted to the jury.)

Arguments of the Parties

Plaintiffs' Allegations (as presented in the complaint)

The deed was executed for consideration of $300, but was without valuable consideration in substance.
The deed was not delivered.
The deed was executed for the purpose of fraudulently defeating the plaintiffs' lawful rights and interests in the premises and to favor persons who could not take directly from the deceased; Dunning conspired with Stevens to defeat the plaintiffs' rights, particularly those of the widow, who had lived apart from Stevens for years.

Defendant's Position (as presented in the answer)

The answer denied the allegations of the complaint.
The defendant asserted the deed was executed for a valuable consideration and that he was the fee owner of the land.

Table of Precedents Cited

All authorities below are taken directly from citations appearing in the opinion and attorneys' filings. Where the opinion itself applied a precedent, that application is stated; where an authority was cited by counsel but not discussed in the Court's opinion, the table so notes.

Precedent / Authority	Rule or Principle Cited For (as stated in the opinion/briefs)	Application by the Court
Jones on Evidence, sec. 140, p. 157	"As to evidence of declarations of deceased to strangers."	Cited by appellant's counsel in briefs; not discussed in the Court's opinion.
44 S.C. 378	Cited under "Want of consideration" and again under "Consideration for deed."	Cited by appellant's counsel; not discussed or applied by the Court in its opinion.
53 S.C. 348	Cited under "Want of consideration" and "Consideration for deed."	Cited by appellant's counsel; not discussed in the Court's opinion.
56 S.C. 169	Cited under "Want of consideration" and "Consideration for deed."	Cited by appellant's counsel; not discussed in the opinion.
57 S.C. 95	Cited under "Want of consideration" and "Consideration for deed."	Cited by appellant's counsel; not discussed in the opinion.
59 S.C. 560	Cited under "Want of consideration" and "Consideration for deed."	Cited by appellant's counsel; not discussed in the opinion.
71 S.C. 577	Cited under "Want of consideration" and "Consideration for deed."	Cited by appellant's counsel; not discussed in the opinion.
27 S.C. 201	Cited under "Want of consideration."	Cited by appellant's counsel; not discussed in the opinion.
84 S.C. 117, 120 and 541	"Issues confined by pleadings."	Cited by appellant's counsel; not discussed in the opinion.
84 S.C. 399	"Issues confined by pleadings."	Cited by appellant's counsel; not discussed in the opinion.
75 S.C. 512	"Issues confined by pleadings"; also cited under "Charge as to burden of proof."	Cited by appellant's counsel; not discussed in the opinion.
79 S.C. 478	"Issues confined by pleadings"; also cited under "Charge as to burden of proof."	Cited by appellant's counsel; not discussed in the opinion.
82 S.C. 464	"Issues confined by pleadings."	Cited by appellant's counsel; not discussed in the opinion.
120 Ga. 1018; 48 S.E. 400	"Possession retained by grantor."	Cited by appellant's counsel; not discussed in the opinion.
129 N.C. 325; 40 S.E. 179	"Nonpayment of consideration."	Cited by appellant's counsel; not discussed in the opinion.
Rice's Eq. 243	"Failure to record."	Cited by appellant's counsel; not discussed in the opinion.
53 S.E. 351; 36 S.E. 227; 45 S.E. 262	"Delivery" (authorities cited on delivery).	Cited by appellant's counsel; not discussed in the opinion other than the Court's factual analysis of delivery in this case.
52 S.C. 472; 89 S.C. 268; 95 S.C. 328	"Presumption as to" (presumptions referenced by counsel).	Cited by appellant's counsel; not discussed in the opinion.
103 S.C. 277	"Exclusion of evidence."	Cited by appellant's counsel; not discussed in the opinion.
Civil Code, secs. 3454, 3575; 86 S.C. 94 and 115	"Conveyance to bastard children" (statutory and case authorities).	Cited by appellant's counsel; not discussed in the opinion.
81 S.C. 374; 73 S.C. 383; 80 S.C. 383	"Charge on facts" (authorities referenced for jury charges).	Cited by appellant's counsel; not discussed in the opinion.
102 S.C. 174	"Presumption of innocence."	Cited by appellant's counsel; not discussed in the opinion.
81 S.C. 541; 75 S.C. 512; 79 S.C. 478	"Charge as to burden of proof."	Cited by appellant's counsel; not discussed in the opinion.
69 S.E. 1055; 66 S.E. 514; 61 S.E. 530	"Refusal to charge" (authorities on refusal to charge).	Cited by appellant's counsel; not discussed in the opinion.
20 S.C. 232; 52 S.C. 132; 1 Hill L. 16	Authorities cited by respondent's counsel (specific rules not stated in the opinion).	Cited by respondent's counsel; not discussed or applied in the Court's opinion.
Johnson v. Johnson, 27 S.C. 316, 3 S.E. 606, 13 Am. St. Rep. 636	Authority for the proposition that an attorney's or agent's authority ceases upon the principal's death.	Applied by the Court to hold that any authority Mr. Herndon had as attorney or agent for Stevens ceased at Stevens' death; therefore Herndon could not, after Stevens' death, lawfully deliver the deed or collect the consideration on Stevens' behalf.

Court's Reasoning and Analysis

The Court concentrated its analysis on whether the deed had been legally delivered before Stevens' death, reasoning that if there was no valid delivery the deed could not convey title and the defendant acquired no right or interest.

The Court summarized the evidentiary facts as follows (all taken from the trial record as recited in the opinion): Stevens and Dunning negotiated for the sale; a deed was prepared and signed by Stevens and offered to Dunning; Dunning declined to accept the deed until Stevens' wife properly renounced her dower rights; the deed was returned for that purpose and the trade was not consummated nor the consideration paid at that time; Stevens died on December 28, 1913.

Some months after Stevens' death, a woman calling herself Nora Harmon or Nora Stevens purported to renounce dower, and Dunning paid the money on February 5, 1914, to Mr. Herndon, an attorney in Charleston, and obtained a deed with that renunciation. The Court reasoned that if Herndon had acted solely as attorney or agent for Stevens, any authority he held terminated upon Stevens' death. The Court expressly cited Johnson v. Johnson (27 S.C. 316, 3 S.E. 606) for the principle that an attorney's or agent's authority ceases with the principal's death.

The Court concluded that the jury's finding — that the deed was invalid because it was never legally delivered to the defendant — was supported by the evidence and that no reasonable inference to the contrary was available from the record. Because the deed had not been legally delivered before Stevens' death and because the purported postmortem collection and delivery involved an attorney whose authority ended with the principal's death, the deed did not vest title in Dunning.

Having reached this conclusion on delivery (and consequent invalidity), the Court held that further consideration of the defendant's other exceptions was unnecessary.

Holding and Implications

Judgment affirmed.

Direct consequences: the Court upheld the jury's verdict and the trial court's judgment that the deed was invalid because it was never legally delivered prior to Stevens' death. As a result, the defendant acquired no right, title, or interest in the land under the questioned conveyance. The Court explicitly treated the question of delivery as dispositive and therefore did not address the other exceptions in detail.

Broader implications: the opinion rests on well-established agency and property principles (including the rule that an agent's or attorney's authority terminates at a principal's death), but the Court did not purport to establish a new rule of law beyond applying those established principles to the facts of this case.

Report prepared strictly from the provided opinion. No information has been inferred or added beyond what appears in the opinion text.

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BUNCH ET AL. v. DUNNING.

February 8, 1917. The opinion of the Court was delivered by

MR. JUSTICE WATTS.

This is an action by plaintiffs against the defendant to set aside a deed of conveyance by Josiah Stevens, deceased, to F.A. Dunning. The complaint alleges: That the plaintiffs, respectively, are the widow and daughter of the deceased, Josiah Stevens. That Josiah Stevens died intestate on December 28, 1913, leaving the plaintiffs as his only surviving heirs. That on May 23, 1913, the deceased executed a deed of conveyance to the premises described in the complaint in this action 290 acres for $300 to Dunning, but the plaintiffs allege that the deed is invalid on three grounds: That the deed was without valuable consideration, and was not delivered, and was executed for the purpose of fraudulently defeating the lawful rights and interests of the plaintiffs in the premises, and to favor persons who could not take from the deceased directly, and that all of these facts were personally known to Dunning, who conspired with the deceased for the purpose of defeating the rights of the plaintiffs, and especially the widow, who was estranged from her husband, and the deceased for years had lived apart from her. The answer denied the allegations of the complaint, and alleged that the deed of conveyance was executed for a valuable consideration, and that he was the owner in fee of the land in question.

The cause was tried in March, 1916, term of Court for Berkeley county before his Honor, Judge Memminger, and a jury. Motion for a nonsuit and for a direction of a verdict were made by the defendant; both were overruled.

His Honor submitted the following issues to the jury:

(1) "Was the plaintiff, Mrs. Susan Stevens, the lawful wife of Josiah Stevens, deceased, and the plaintiff, Mrs. Barcha Josephine Bunch, the only lawful child of their marriage?" (2) "Is the deed in question a valid deed?"

The jury answered the first question "Yes," and the second question "No." Thereupon the presiding Judge signed an order confirming the verdict of the jury. After entry of judgment defendant appeals, and by 18 exceptions alleges error and seeks reversal.

It is unnecessary to consider all of the exceptions, but we will first consider the testimony as to whether or not the deed in question was ever delivered to the defendant. If it was not then, no further consideration of the case is necessary.

The jury found that the deed in question was invalid, and the Court concurred in this finding. If the deed in question was never delivered, then it was not a valid deed, and the defendant acquired no right, title or interest thereunder.

The defendant's evidence is that the deed was prepared and turned over to him, and he had it in his possession two months before Stevens' death, but he did not pay the money, but returned the deed because there was no renunciation of dower by the wife; that there was no consummation of the trade and no payment of money although he stood ready to pay when the deed was perfected and dower renounced; that Stevens died on December 28, 1913, and he paid the money on February 5, 1914, to Mr. Herndon, a lawyer in Charleston, and got the deed with a renunciation of dower on it, not by the plaintiff in this case who is found by the jury to be the lawful wife of Stevens, but by one Nora Harmon or Nora Stevens, who claimed to be the wife of Stevens. We cannot escape the conclusion that not only was there sufficient evidence to sustain the finding of the jury, concurred in by the trial Judge, that the deed was invalid, but no other reasonable inference can be drawn from the evidence that the deed never was legally delivered to the defendant.

Stevens and Dunning negotiated for the sale, a deed was prepared and signed by Stevens and offered to Dunning. Dunning declined to accept it until proper renunciation of dower was made by the wife of Stevens, and it was returned for that purpose; before this was done Stevens dies, and some months later the pretended wife of Stevens renounces dower, and the money is paid over, not to a legal representative of Stevens or his heirs at law, but an attorney at law. Even if Mr. Herndon was the attorney of Stevens as an attorney at law or attorney in fact his authority ceased and was revoked by Stevens' death, and he had no power or authority to represent him after his death. Any authority he had as agent or attorney ceased with the death of Stevens. Johnson v. Johnson, 27 S.C. 316, 3 S.E. 606, 13 Am. St. Rep. 636.

Stevens died before the deed was delivered or the money paid, and the attorney, Herndon, had no power or authority after his death to deliver the deed and collect the money set forth in the deed as the consideration. Having reached the conclusion that the finding of the jury, concurred in by the trial Judge, that the deed was invalid in that it was never legally delivered to the defendant, this conclusively determines the cause, and it is unnecessary to consider the other exceptions in the case.

The exceptions are overruled, and judgment affirmed.

BUNCH et al. v. DUNNING