Kibler v. McIlwain

Citations

• 16 S.C. 550
• 1882 S.C. LEXIS 29

Syllabus

<p>1. After the sale of a tract of land under the order of’the Court of Equity for the foreclosure of a mortgage, the mortgagor was adjudged a bankrupt, and subsequently the sale was confirmed, the assignee in bankruptcy taking no action in the case. Held, that the jurisdiction of the State court was not affected by the adjudication of bankruptcy ; and that the order of confirmation concluded the assignee as to all matters stated in the report on sales and confirmed by the court, without exception, unless fraud was involved in the proceedings.</p> <p>2. When facts constituting a fraud become known, actually and constructively, to the party injuriously affected, the Statute of Limitations then begins to run against the right to have the fraud adjudicated.</p> <p>3. A finding of fact by the Circuit judge in an equity cause from evidence taken before him, overruled, because clearly inconsistent with the undisputed testimony of the case.</p> <p>4. A mortgagor knew in 1867 that at a sale of his property under a decree of foreclosure, a part thereof was reserved for his homestead in obedience to a military order, but tlie report on sales made and confirmed in 1868, and tbe deed then executed and recorded, covered the entire tract, and these matters were asserted by the mortgagor as a defense to an action brought against him by the purchaser in 1869, for the recovery of this homestead. Meld, that a petition filed in 1878 in the original foreclosure suit for leave to have the sale vacated for fraud, was'barred by the Statute of Limitations.</p> <p>5. Nor would the currency of the statute be arrested by action instituted in 1872 to set aside the sale for fraud, and dismissed in 1878 because that an original action for such purpose was improper.</p> <p>6. In the cross-examination of a witness in this State, counsel may ask him questions bearing upon the whole case, so as to bz-ing out matters of independent defense, and are not confined to the matters testified to in the exam