Milhous v. Sally

Citations

• 43 S.C. 318
• 21 S.E. 268
• 1895 S.C. LEXIS 169

Syllabus

<p>1. Fraudulent Agreement — Partioeps Oriminis. — A complaint in equity which alleged that the heirs at law of a totally insolvent intestate had agreed that his lands should be sold under a judgment held by his widow as assignee, for the use of the widow for life and then for the children, no money to be paid on the bid, and that some of them should hold the land as agents for all, and the bid was made on the representation that it was for the benefit of the family, and that the widow was now dead, states no cause of action in favor of the children out of possession against those in possession which would entitle plaintiffs to ask the aid of a Court of Equity in obtaining partition, as the complaint developed a scheme whereby the heirs acquired possession of this land by chilling the biddings.</p> <p>2. Ibid. — -Ibid.—The plaintiffs standing on precisely the same footing as the defendants in this fraud upon their ancestor’s creditors, except that defendants are in possession, the court will apply the maxim, Ex dolo malo non oriiur actio.</p> <p>3. Ibid.. — Ibid.—Tenants in Common.. — The allegation that plaintiffs and defendants were tenants in common of this land, when taken in connection with the other allegations of the complaint, referred to their alleged rights under the fraudulent purchase, and the complaint could not be saved from the demurrer on the suggestion that this allegation declared the parties tenants in common by virtue of their inheritance — their father being insolvent, and their mother having no real interest, except as judgment creditor.</p> <p>4. Amendments — Motion.—Douhted whether a motion to amend can be entertained when made for the first time before the Circuit Judge on exceptions alleging error in the master’s finding that the complaint does not state a cause of action.</p> <p>5. Ibid. — Amendments to this complaint were properly refused which would not have relieved the parties to the action and their intestate mother from the fraudulen