A former opinion in this case having been filed, a motion for a rehearing was made and granted, upon the ground that the decision had been made upon a misapprehension as to the existence of a very material fact. I dissented from the opinion which was filed.
The respondent takes the position that no actual fraud was shown, and that the allegations of the complaint do not bring the case within the terms of the Assignment Act. While the complaint seems to be framed primarily under the statute of Elizabeth, the prayer for relief indicates that the pleader intended to make apt allegations to bring the case under the statute of Elizabeth and under the Assignment Act (Civ. Code 1922, § 5512).
While the prayer for relief forms no part of the complaint, and cannot supply allegations which do not appear in the complaint, I am of the opinion that the complaint is *Page 178 sufficiently definite to bring the case under the Assignment Act, and I adhere to the opinion before formed by me, viz.: That the decree of his Honor, the Circuit Judge, should be affirmed.
A foreclosure of the mortgage against the defendant McRae had been commenced. It was all the property that he had. The testimony shows that he was wholly unable to pay the note made to the plaintiff, and also shows that the contemplated sale was to be for the sole protection of the Scotland Supply Company, and it was not contemplated to pay the plaintiff.
While the transactions appear to have been handled by McRae and the representative of the Scotland Supply Company, the intent of McRae is imputed to his wife, for she, as a matter of law, had notice. Miller v. Erwin,125 S.E., 36; 129 S.C. 415. The sale was no more than a sale of the husband to the wife, without consideration on her part, and for the purpose of securing Scotland Supply Company to the exclusion of the other creditors, after paying the mortgage which was in process of foreclosure.
Inasmuch as the report of the Referee and the decree of the Circuit Court contained full statements of the case, I have not undertaken to make any further statement. Let the report of the Referee and the decree of the Circuit Court be reported.
The decree of the Circuit Court should be affirmed, and the case remanded to that Court for such further steps as may be necessary to carry it into effect with leave to the debtor to apply for a homestead as against the claim of the plaintiff. *Page 179