National Bank v. Kinard

Citations

• 28 S.C. 101
• 5 S.E. 464
• 1888 S.C. LEXIS 34

Syllabus

<p>1. Parol testimony may be received from a sheriff to authenticate the entries endorsed on an execution and to prove that property levied upon had not been sold.</p> <p>2. The mere fact that an application for homestead had been made may be proved by parol.</p> <p>3. The presumption of law that a levy amounts to satisfaction may be rebutted.</p> <p>4. Pending two actions for foreclosure the mortgagor sold the mortgaged land to the senior mortgagee and the court confirmed the sale and ordered the proceeds applied to the mortgages according to their rank. Held, that this was practically a foreclosure sale, and that nothing was left in the mortgagor subject to judgments against him,</p> <p>5. Personal property covered by a chattel mortgage is not liable to junior executions against the mortgagor.</p> <p>6. Where a deed is voluntary but not executed for the purpose of defrauding creditors, no action lies to set it aside until by réturn of nulla bona it is legally shown to operate as a legal fraud on creditors. Until then the statute of limitations does not begin to run.</p> <p>7. In such case it is not necessary to allege in the complaint discovery of the fraud within six years, that period not having elapsed since the return of nulla bona.</p> <p>8. Action against the widow and children of a deceased debtor to set aside a voluntary deed made to them by him in his life-time and while indebted, is an action inter vivos and not an action for the settlement of the estate of a decedent.</p> <p>9. Delay in procuring a return of nulla bona is not laches on the part of the creditor.</p> <p>10. A finding of fact by the Circuit Judge from testimony heard by him, approved. Vague testimony not sufficient to show a consideration other than that expressed in the deed.</p> <p>11. A sheriff’s return is not invalid because not sworn to nor made Lo a regular term of court.</p> <p>12. A creditor may institute his action notwithstanding the pendency of another action by another creditor