Drake & Son v. Steadman

Citations

• 46 S.C. 474
• 24 S.E. 458
• 1896 S.C. LEXIS 77

Syllabus

<p>1. Testimony — Supplemental Proceedings — Evidence.—Testimony of a mortgagor, as to what occurred previous to and at the time of the execution of a mortgage, taken in supplemental proceedings, in a proceeding to set aside such mortgage as a fraud upon creditors, will not be stricken out on motion of mortgagee, because he had no notice of the examination, there being nothing to show that the Circuit Judge considered any testimony of the mortgagor as to what occurred after the execution of the mortgage.</p> <p>2. Mortgage — Assignment.—The question whether a mortgage was intended as an assignment, with an undue preference in favor of mortgagee, is one of fact, and the finding of the Circuit Judge in this case, that the mortgage was so intended, is sustained.</p> <p>3. Confession of Judgment — .Assignment Law — Statute of Frauds. — Confessions of judgment made by an insolvent debtor, with no intent on his part or that of his creditor to make a preference, or to hinder, delay or defraud other creditors, and for an amount then actually due, will not be set aside as being a violation of the assignment law or of the Statute of Elizabeth.</p> <p>4. Judgment — Collateral Proceeding — Fraud—Jurisdiction—Case Distinguished. — A judgment cannot be attacked in a collateral proceeding, except upon proof of fraud or want of jurisdiction appearing on face of record. Ruffsr. Elkin, 40 S. C., 69, distinguished.</p> <p>5. Judgment — Jurisdiction—Case Distinguished. — The judgments by confession in question do not show on the face of the record want of jurisdiction. Woods v. Bryan, 41 S. 0., ?4, distinguished. Query: Is a judgment by confession void because the judgment debtor does not reside, at the time of its entry, in the county in which it is entered?</p>