Monday v. Elmore

The opinion of the court was delivered by Mr. Ohiee Justice Simpson. The plaintiff, respondent, ■ and his wife, Amanda, since deceased, in November, 1885, rented to the defendants, appellants, a certain tract of land situate in Laurens County, for the year 1886, for $60, payable on or before the 1st day of November, 1886, the contract being evidenced by a written instrument under seal signed by the said appellants, in which it was stated that the said Amanda and the said James A. Monday had agreed to rent said premises, and that the defendants agreed to pay for the same the sum of $60, by the first day of November, 1886, the defendants further agreeing therein that the crop made on the place should be bound for the rent specified. This paper was properly indexed in the office of ft. M. C., Laurens County, November 23, 1885, and a copy will be found in the “Case.” On November 2, 1886, the respondent made an affidavit before D. W. Anderson, trial justice for said county, in substance stating the contract of rent; that the $60 was due him ; that the defendants had refused payment, and were actually disposing of the crops subject to the lien, to defeat the same; upon which he prayed a warrant to seize said crop. At that time his wife, Amanda, was dead. The trial justice issued the warrant, and two bales of cotton were seized. The defendants, through their counsel, after notice, moved the trial justice to dissolve the attachment as improvidently and illegally issued. This motion was refused by the trial justice, and the attachment sustained. Whereupon an appeal was taken to the Court of Common Pleas on the grounds following, to wit: 1. That the attachment was improvidently and illegally issued, the sufficient facts not being set out in the affidavit. 2nd. That it does not appear from the affidavit that the plaintiff had a right of action. And 3rd. That the evidence showed the plaintiff had no right of action. The Circuit Judge dismissed this appeal with costs. And the case is now before this court upon exceptions as follows: I. That the affidavit on which the attachment was issued was insufficient. II. That his honor did not sustain the appeal on the grounds that the attachment was improvidently and illegally issued, the facts stated not being sufficient. III. [129] Because it did not appear from the affidavit that the plaintiff had a cause of action. • The act of 1885, p. 429, provides that a warrant of seizure under agricultural liens issued by the clerk of the court or a trial justice, may be dissolved or vacated for any of the causes which would be sufficient to vacate a warrant of attachment issued under the code. An attachment issued under the code may be dissolved for one of two causes; first, because the attachment has been irregularly issued, and second, because it has been improvidently issued. The difference between these causes is this: an attachment is irregularly issued when it appears upon the face of the proceedings that there is no ground for the attachment — in other words, where the affidavit fails to contain the conditions upon which the law authorizes such a proceeding, to wit, that a cause of action exists, that a certain sum is due, and that the defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property with intent to defraud his creditors. It is improvidently issued when the conditions necessary are stated, but they are untrue, which fact being shown by the defendant, the attachment may be dissolved. Ivy v. Caston, 21 S. C., 588. From the language of the exceptions here, we suppose that the warrant of seizure issued in this case is assailed upon both of the grounds mentioned. The first exception raises the question whether the facts stated in the affidavit were sufficient. The third and last whether a cause of action is stated therein. These two exceptions are based upon irregularity, to wit, that the necessary facts do not appear upon the face of the proceedings — the first alleging irregularity generally, and the second specifically, to wit, the absence of one of the necessary conditions — the existence of a cause of action. The second exception is founded upon an averment that the attachment was “improvidently and illegally” issued. We suppose this exception was intended to raise the question that the facts stated were untrue, because it is only in such case that an attachment can be said to have been improvidently issued, although appended to this exception is the statement: “The facts stated not being sufficient” — the exception as a whole reading [130] thus: “That his honor did not sustain the appeal on the grounds that the attachment was improvidently and illegally issued, the facts stated not being sufficient.” If the last clause was intended. to qualify the foregoing part of the exception, then this exception does no more than raise the question of the other two, to wit, of irregularity appearing on the face'of the proceedings, and it would be disposed of in the discussion of the other two. But if full significance is to be given to the words “improvidently and illegally,” which are the words used in the act of 1885, supra, then it will be necessary to inquire whether the defendants submitted sufficient evidence of the untruthfulness of the facts stated in the affidavit. The first question, however, is, was the proceeding defective for irregularity ? Does it appear that the affidavit was deficient either generally or specifically ? All that the code requires to be stated for the issuance of an attachment so as to avoid successfully an assault for irregularity is, that .a cause of action exists as against the defendant, specifying the amount of the claim, &c., and that the defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with intent to defraud his creditors. Code, 248; Ivy v. Caston, supra. The affidavit, it is true, does not state in terms that a cause of action existed, but it does state facts from which as a legal conclusion it must be inferred that such cause did exist. It states the renting of the land, the giving of the note, its amount, that said note was just and due the plaintiff, and that the defendants had positively refused payment. If these statements were true, it cannot be said that the proceeding was defective for “irregularity” on account of failure of the necessary statement as to these matters. We do not know that it was necessary for it to appear in the affidavit that the plaintiff was the surviving payee, and for that reason was entitled to collect the rent. The statement that the note was due to him, was an allegation of a cause of action to him, and it opened the door to testimony on that subject at the trial in case this right was denied. The most serious question is whether the affidavit was sufficient as to the purpose of the defendants in disposing of the property. The code says that an attachment may issue whenever it [131] shall appear by affidavit that * * * the defendant is disposing of his property * * * “with intent to defraud his creditors.” This precise language is not used in the affidavit, but is not that the charge substantially ? The affidavit is not based upon hearsay, information, or belief, but it is a positive oath that the rent note was due, that the defendants were actually disposing of their property, that they had refused payment, and that the object of the disposition was to defeat the lien. It appears to us that this was equivalent to saying that the intent of the defendants was to defraud a creditor. The cases in our reports upon this subject are Smith & Melton v. Walker, 6 S. C., 169; Brown v. Morris, 10 Id., 469; Claussen v. Fultz, 13 Id,., 478; Ivy v. Caston, 21 Id., 588; and a recent case, Mixon v. Holley, 26 Id., 256. In the four first cases above, the sufficiency of the affidavit, and what is required in such cases were discussed, the court holding that the facts stated must not be stated simply upon information and belief, but that there must be a positive averment of the facts and of the sources from which the information is derived, if the statement is made on information, and that there must be facts stated bearing upon both the conditions of the disposition of the property and the intent thereof. And in the last case above the affidavit was very similar to the affidavit here, where it was stated that Mixon had sold a portion of his property and had refused to pay the note with intent to defeat the lien. The court held that it was sufficient, saying: “The fact that Mixon having already sold a portion of the crop, over which Willis & Co. had a lien, and having refused to pay the proceeds or any other funds upon their claim, was sufficient to satisfy the clerk of the intent of Mixon, and no higher evidence could have been furnished that Mixon intended to defeat the lien.” The affidavit in that case was, “that Mixon had sold a portion of his crop, had refused to pay said sum of $100, with intent to defeat the lien.” This w'as held sufficient; and so we hold here under these authorities. It must be remembered that this was a proceeding upon an agricultural lien, and while this lien law does provide that the affidavit for a warrant of seizure in such cases should “conform as nearly as may be” to the practice in ordinary attachments, yet [132] there is this material distinction between the two. In attachment cases there is no lien on the property attached, which it is intended to enforce, and consequently the mere disposition of the property might not in itself perhaps be a sufficient statement showing the intent to defraud. But in agricultural contracts there is a lien, and a statement that the debtor is disposing of the property to defeat this lien, contains facts bearing directly on the intent. We find no evidence in the case directed to the point of an improvident issuance of the warrant. The only testimony wa,s from the defendant, Laura C. Elmore, that Amanda Monday had died some time in September, 1886, and that she owned the land in fee. The note, however, was given to Amanda and the plaintiff, and it makes no difference who owned the land, the defendants were never deprived of the use of it, and the proof that Amanda had died only showed that the plaintiff was the survivor, and therefore had the right to collect. It is the judgment of this court, that the judgment of the Circuit Court be affirmed.