Kinsey v. Bennett

Citations

• 37 S.C. 319
• 15 S.E. 965
• 1892 S.C. LEXIS 19

Syllabus

<p>1. Mortgage—Conveyance—Cause oe Action.—Where a complaiht alleges a bond and mortgage by plaintiff to defendant, and afterwards a conveyance of the mortgaged land by plaintiff to defendant in trust to sell the land, settle the mortgage debt, and account for the balance, the mortgage must be held to have been satisfied by the conveyance, and the only inquiry is whether the alleged trust was created.</p> <p>2. Evidence—Trust—Statute of Frauds.—Upon this inquiry, the deed of conveyance was essential to plaintiff’s case, as there was no pretence of any other writing to show the alleged trust, and there being no allegation of fraud in obtaining the deed, evidence not in writing was inadmissible to establish a trust.</p> <p>3. Complaint—Relief—Inconsistent Claims.—The rule of law which permits a plaintiff to recover on a legal demand alleged in his complaint, although refused the equitable demand also asserted, does not entitle a plaintiff, who sues to enforce a trust contained in his conveyance to defendant, to the inconsistent relief, even by amendment, of recovering the purchase money of the land so sold.</p> <p>4. Complaint Dismissed Without Prejudice to the right to bring another action for the recovery of the purchase money.</p>