This is an appeal from a decree made by his Honor, Judge E.C. Dennis, and, as will appear by reference to the statement made in the decree, the case has been twice appealed to this Court. 112 S.C. 211; 99 S.E., 816; Id.,124 S.C. 391; 117 S.E., 807. To this decree, W.M. Hamer, and W.M. Rising, and the present trustees of Hugh P. Price's estate have filed exceptions. *Page 514
The decree contains brief statements in relation to the controversy. At the risk of repeating that which appears in the decree, a short statement will be made:
Hugh P. Price, the testator, owned a considerable estate; his wife survived him; they had no children. He recognized W.M. Rising, an illegitimate, as his son, and he, with his mother, Mary Rising, lived on land belonging to the testator. By his will he appointed three of his friends as executors and trustees to carry out its term; one of these friends was W. T. Bethea.
Provision was made in the will for his wife for life, and, after her death, the estate was to be managed and the entire income paid to W.M. Rising during his lifetime. The testator died several years prior to 1910, and his wife did not long survive him.
Rising then became entitled to the income from the estate. He was thriftless and prone to run into debt, and was indebted at the time of Mrs. Price's death. W.M. Hamer, prior to 1910, had sold him land and had taken mortgages on the property sold, and, in addition to this, had an assignment of Rising's interest in the estate as further collateral to the indebtedness. It appears also that a bank, of which W.T. Bethea was cashier and manager, likewise had such an assignment. It appears from the testimony that W.T. Bethea was the trusted friend of the testator and was the controlling manager of his estate.
On February 16, 1910, W.M. Hamer procured from Rising a conveyance of his interest in the estate, which conveyance was recorded, and is as follows:
"State of South Carolina, County of Dillon.
"Know all men by these presents, that I Wilbur Monroe Rising, of the county and state aforesaid, for and in consideration of the sum of twenty-four hundred dollars ($2,400.00) to be paid to me each and every year in monthly installments of two hundred dollars ($200) on the 1st and 10th of each month, beginning March 1st, after date, have *Page 515 this day bargained, sold, and released and do hereby bargain, sell, and release to Wm. M. Hamer, his heirs or assigns, all my right, title, and interest in and to all the income of each and every kind due and payable to me under the last will and testament of H.P. Price, deceased.
"And I do hereby instruct, authorize, and empower W.T. Bethea, J.B. Gibson, and W.D.B. Hayes, executors of said will of H.P. Price in my name and stead, to pay said Wm. M. Hamer upon demand all amounts collected and due me each year as provided in said will.
"It is mutually understood that for the sixth year only the above annuity is to be increased one thousand dollars ($1,000) payable in monthly installments as above. It being nevertheless provided and further understood that the above monthly payments are subject to any liabilities legally binding upon me or the estate of said H.P. Price, deceased, all of which are to be paid out of said annuity to the full satisfaction of said Wm. M. Hamer.
"Witness my hand and seal this the 16th day of February, 1910. "W.M. Rising. [L.S.]
"Witness: Geo. G. Stanton, E.P. Mobley, Jr."
On March 2, 1910, Hamer conveyed to W.T. Bethea one-half interest in the above conveyance of the profits arising from the estate; such conveyance being as follows:
"State of South Carolina, County of Dillon.
"Know all men by these presents that I, Wm. M. Hamer, of the county and state aforesaid, for and in consideration of five dollars and services to be performed in making all collections and looking after property, do hereby transfer, set over and assign to W.T. Bethea one-half interest in and to all amounts due me under conveyance of Wilbur Monroe Rising, dated February 16, 1910, of all his rights, title, and interest in and to all incomes of any and every kind under the last will and testament of H.P. Price, deceased. *Page 516
"Provided, neverthless, that the said W.T. Bethea participates to the extent of one-half of all debits as well as credits under the above-mentioned conveyance of said Wilbur Monroe Rising and assigns to me one-half interest in an insurance policy with the South Atlantic Life Insurance Company, on the life of said Wilbur M. Rising — upon my paying one-half of all subsequent premiums.
"Signed the 2d of March, 1910.
"W.M. Hamer. [L.S.]
"I hereby accept and agree to the above agreement. Signed this 2d day of March, 1910.
"W.T. Bethea."
This conveyance was not divulged until September, 1920, and, when divulged, Rising's attorney moved to set aside all the transactions which had taken place between Hamer and Rising.
A voluminous record has been made and brought to this Court. This record is so cumbersome that it is confusing.
While the exceptions filed by Hamer are five in number, they practically relate to but one subject of error, viz.: He complains that there was error in not holding that he (Hamer) was entitled to retain the 15 bales of cotton for the years subsequent to 1915, when he had expressly reserved them in the resale to Rising, and in holding that he could not retain this benefit after his interest in the estate had ceased.
These exceptions are all overruled, for the reasons stated by his Honor, Judge Dennis, and for the further reasons which will hereafter appear in discussing the exceptions raised by Rising and his present trustees.
Rising and the trustees, on the other hand, have filed twenty-three exceptions, which, for the most part, may be disposed of in a general manner. Every finding adverse to Rising and the trustees is excepted to, commencing with assailing the contract of February 16, 1910, and everything done under it or arising from it. *Page 517
While it is true that his Honor, Judge Dennis, had Rising before him and had an opportunity to observe his demeanor, at the same time, from the record, this Court cannot ascribe that degree of intelligence which is credited to him by his Honor. As is disclosed by the record, Rising is a weakling, handicapped in the first place by his unfortunate birth and by a lack of capacity to judge of values or to plan for the welfare of himself and those dependent upon him. The testimony is overwhelming that the will of a strong person dealing with him could be substituted for his will, and that he was powerless in dealing with persons of intelligence who might desire to take advantage of him. In addition to this fact, disclosed by the records which fully convince the Court of this fact, there is added the testimony to the same effect of a number of first-class business men who know him. One of them says that if Rising wanted a thing worth $100 he would buy it if he had to pay $1,000 for it. All agree that he could be easily imposed upon, and several express the opinion that he needs a guardian.
Hamer, on the other hand, is shown to be a man of wonderful business ability, and W.T. Bethea, having been the close personal and trusted friend of the testator, had the complete confidence of Rising.
Practically every fact put down in the record demonstrates Rising's incapacity, save that he appears to have been fortunate in the outcome of the real estate purchased from Hamer.
Just how the contract of February 16, 1910, was obtained from him is not very clear. He claims that he knows nothing about it, and must have been drunk at the time. That prior to 1910 he was a shiftless person, addicted to drinking, does not appear to be questioned. Rising says that he knew nothing about this trade until he got the paper from McLaurin (evidently referring to a duplicate). McLaurin, a merchant, not interested, says that, while he is not certain about the exact date, as a matter of fact, Rising came in his *Page 518 store one night and fell in a drunken stupor, and, some papers having fallen from his pocket, he took them and put them in his safe, and one of them appeared to be the paper with Hamer, which was afterwards delivered to Rising.
Hamer denies having taken advantage of Rising, and claims that the contract was beneficial to him. Whether he was drunk when the paper was signed or not is immaterial from the view that we take of this case, and whether he repeatedly ratified it afterwards is also immaterial. That he did ratify it and did many times express satisfaction with Hamer's dealings with him also cannot be disputed; but the evidence shows that he was never any more qualified toapprove than he was to make the contract in question, and his after approvals and the manner of making them show his weakness, instead of giving strength to the contention that he ought to be bound by it.
He wrote many letters in which the greatest confidence was expressed in Hamer, and showing at all times his entire willingness to acquiesce in whatever Hamer suggested. We are satisfied also from the testimony of Mr. T.I. Rogers that Rising told Hamer in his presence that he understood that he was getting back the contract only to the extent of the 60 bales of cotton, and that the 15 bales of cotton were not to go to him, and in that interview that Hamer reminded him that Mrs. Rising said, "Let Hamer keep it and make old David pay." We do not think that there is any doubt that this took place. It only tends to show in what little estimate he held what belonged to him, and it could be attributed only to one thing, and that is his inability to comprehend his rights.
The record shows that more than one time he said, and declared in writing that Hamer had always treated him right. He says, however, that some time in March, 1910, he went to Bethea and complained and that Bethea told him that he had made the bargain and would have to stand it. Bethea is dead, this testimony was objected to, and should *Page 519 have been ruled out; it can have no effect on the judgment of the Court, and is not considered. He says that at the same time he went to Hamer and complained, and then detailed what took place between Hamer and himself, but no recision of the contract resulted.
An arrangement was made by which $100 a month was paid to one of his creditors, the bank of which Bethea was cashier and manager, $50 to Hamer on account of what was owing to him, and $50 to Rising's wife for the support of the family, and it appears that from the year 1910 to 1915, when he was working at all, he earned from $1 to $1.50 per day, doing odd jobs at one thing and another, and his wife says that she worked to help keep the children at school. It is true that during this period his indebtedness was being reduced to the extent of these payments, and to that extent the relation was beneficial to him, but, had he received all of the income to which he was entitled, and had it been administered by his trustees as was contemplated by his benefactor, it could have been much further reduced, without hardship to him. W.T. Bethea was a capable business man, known and respected. He was chosen by the testator to protect the estate, and while he was not denominated as the committee of Rising, he was obligated to protect his interest. He managed it successfully for Hamer and himself part of the time.
On June 1, 1915, Hamer reconveyed to Rising the interest which he had purchased from him, intending to reserve out of the conveyance the 15 bales of cotton for the unexpired term of years under the lease, and the terms of the conveyance would bear the construction that it was reserved. The conveyance is so worded, however, that, to one not having knowledge of the existence of the contract for the 15 bales of cotton, it would not be discovered on reading the conveyance. In fact, Hamer did not desire that this should be known, and he had his reasons for it. *Page 520
After complying for two years with the contract to pay the 15 bales of cotton, David refused to pay any more, alleging that this contract had been obtained by Hamer by fraudulent means. Hamer brought suit for the enforcement of the contract, and, as appears from the record it was then simply an action of Hamer against David on that contract.
The finding in David's favor was reversed, on appeal (112 S.C. 211), and the order made in this case, to bring in other parties, resulted in bringing all of the parties into the controversy who are now before the Court; they have filed pleadings of great length, setting forth their respective interests and claims. The true status of the dealings in reference to the estate commenced to unravel at a reference held in September, 1920. It appears that during the examination of Hamer he said that he had to give half of the profit under his contract with Rising to W.T. Bethea, and produced the paper. After this disclosure, the pleadings were further amended by Rising, who then sought to set aside all transactions growing out of Hamer's relations with the estate.
After the decision of the case, Dr. David, without any consideration whatever, procured Rising to release him (Dr. David) from the performance of the contract to deliver the 15 bales of cotton for the then unexpired term of the lease. This act, standing by itself, can be taken as strong evidence to bear out the contention of Rising and his present trustees that he can be persuaded to sign any paper at the instance of a person of superior intelligence, and is another evidence of his incapacity, as showing his willingness to surrender this valuable asset for nothing.
In this transaction, however, Dr. David must not be judged harshly. He felt that he had been overreached, and that he should not have been required to pay the additional 15 bales of cotton. Feeling his way, he thought he should be relieved of it, whether the contract should inure to the *Page 521 benefit of Hamer or Rising. Upon appreciating the situation, he surrendered his release obtained from Rising, and acknowledged himself bound by his contract, and, it appears, endeavored to carry it out in good faith. Therefore the obtaining of this release from Rising, so far as Dr. David was concerned, is referred to only to show the weakness of Rising.
Another evidence of the incapacity of Rising is shown from the fact that on July 28, 1915, he, without any consideration, signed a paper giving Hamer half of the income arising from the estate for the year 1915, beginning June 1st, "this is to continue until otherwise notified in writing by me" (that is, Hamer). That paper is as follows:
"Dillon, S.C. July 28, 1915.
"Mr. J.B. Gibson, Executor, Estate of H.P. Price, Dillon, S.C. ___ Dear Sir: In answer yours, I am requested by Mr. W.M. Rising to say that it is agreeable with me for you to divide equally between us all cash collected as specific income for 1915, beginning June 1st, provided two checks for same are issued at the same time, one payable to him and one to me, after reserving such amount to cover expenses of said estate as your judgment and pleasure dictates.
"This to continue until otherwise notified in writing by me.
"Very truly yours. W.M. Hamer."
"The above has been read by me, and is not only perfectly fair, but all I ask of said W.M. Hamer. W.M. Rising.
"Witness: L.A. Tatum."
It will be noted that at its conclusion. Rising says: "The above has been read by me, and is not only perfectly fair, but all I ask of said W.M. Hamer," and is signed by Rising in the presence of a witness. This can only be explained in the light of incapacity attributed to Rising.
In all of these transactions, it is significant that Rising stood alone, without the aid of counsel, and, as appears from *Page 522 what was done, not only without the aid of the managing trustee, W.T. Bethea, but with Bethea as a person hostile to his interests, although his trustee. W.T. Bethea died in the spring of 1915, and hence the contract between himself and Hamer was not made public until after his death. Having joined with Hamer in taking the benefit from the estate, he as well as Hamer, became liable for whatever sums were diverted in this way.
There is a letter in the record from Bethea to Hamer as early as June 23, 1913, which shows that Bethea was not satisfied with the part that he was taking in reference to the matter. He says:
"Morris Fass is continually after me about judgment he holds against Wilbur Rising. He tells me he got this judgment before you made contract with him. Don't you think it would be better for you to make some kind of settlement with him, rather than have the whole thing aired in Court?"
Answering this on June 18th, Hamer says that he does not understand what is meant by "aired in Court," and says further:
"I have never yet had a business transaction that I objected to be `aired' before any tribunal. You once wrote me that you though best for you not to participate in the profits, but the tempter evidently got hold of you later and changed your heart. Now let me suggest, if your conscience object, as meaning `aired in Court' considered and let me hear again from you. Mr. Rising is better off financially and morally than he was before making this deal with me, and he did so after full consultation and at the instance of some of his best friends. Up to date there has been no fortune to me in it. Had he not made a deal with me, his judgment record ere this would have meant nothing monthly for him and his family."
On October 20, 1913, Hamer accepted the proposition made him by Bethea for his half interest in the Rising contract. For this, and his interest in an insurance policy on *Page 523 the life of Rising, Hamer gave him a one-third interest in Bethea Moore Insurance Agency. In this letter of acceptance, Hamer added:
"It being mutually agreed that you are to pay all insurance premiums debited against me by said agency to date and that you will continue to look to my interest in handling said estate as you assured me you would do."
From all of the foregoing, it is manifest that the following conclusions must be and are reached, viz.: That Rising, while of a certain degree of intelligence, is of that class known as "morons," without sufficient intelligence to comprehend the nature and effect of the contract that he was entering into with Hamer on the 16th day of February, 1910, and that such contract is void and all benefits received under it must be accounted for by Hamer. That W.T. Bethea, having breached his trust and made it possible for Hamer to take this unconscionable advantage and overreach Rising, is equally responsible with Hamer for the return of the fruits of such contract. That, while Hamer did not occupy a fiduciary or trust relationship to Rising in reference to the property at the time he made the contract, Rising had great confidence in him, and Hamer's superior intelligence dominated and overcame the will of Rising, and, by the terms of the contract referred to, he became Rising's trustee, ex maleficio.
It does not need the citation of authority to show that Bethea not only could not take the benefit of the estate, but was bound to protect Rising. We have found no better statement of the principle than the following, taken from Ex parteGadsden, 89 S.C. at pages 363, 364; 71 S.E., 952, 956:
"Judicial distrust of such transactions runs through the whole history of jurisprudence and has been expressed with emphasis in a number of cases in this state. The general rule against the validity of such transactions does not depend on a presumption that there was actual fraud or intentional wrong, but on the principle that the trust relation *Page 524 places such obligations on the trustee that he should not occupy that position of opposition to his cestui que trust which trading with him denotes, and on the presumption that the trustee by reason of his superior knowledge of the trust estate occupies such a vantage ground that the parties do not deal on equal terms. There are, it is true, exceptions to the rule, and such transactions may be sustained when there is clear affirmative proof of a fair consideration, perfect candor, and of the absence of advantage of superior information; in other words, when the cestui que trust deals on equal terms and is fully advised of what he is doing and the effect of his act. The absence of full information and independent advice is always regarded a strong circumstance against the validity of the transaction. Among the many authorities on the subject we cite the following: Butler v.Haskell, 4 Des. Ch., 698. McCants v. Bee, 1 McC. Ch., 383 [16 Am. Dec., 610]. Parris v. Cobb, 5 Rich. Eq., 450.Way v. Union C.L. Ins. Co., 61 S.C. 501; 39 S.E., 742.Scottish Am. M. Co. v. Clowney, 70 S.C. 229;49 S.E., 569 [3 Ann. Cas., 437]. Tindal v. Sublett, 82 S.C. 199;63 S.E., 960; 22 L.R.A. (N.S.), 435n; Perry on Trusts, § 194 et seq."
In the reconveyance to Rising, Hamer got $2,000. This was without consideration, and must be returned with interest. His contract was void and valueless. But Bethea got no part of this money, and is not liable for it.
The contract for the repurchase of the interest at $2,000 took effect June 1, 1915, but the $2,000 was not then paid. There appears in the record check No. 6071 under the head of "Check of J.B. Gibson to W.M. Hamer, January 15, 1916, for $2,086.14." Then follows: "Dillon, S.C. Jan. 29, 1916. The Bank of Dillon. Pay to the order of W.M. Hamer, $2,086.14, two thousand eighty-six 14/100 dollars." Signed: "J.B. Gibson." Indorsed: "W.M. Hamer." Gibson says that he was instructed by Rising to make this *Page 525 payment to Hamer, and a statement is referred to as made by Hamer, but there is no statement to which this check is applicable.
In the argument of the attorney for Rising, he says that the check for $2,086.14, dated January 29, 1916, was the $2,000 reconveyance price, with interest from June 1, 1915, and this we think is correct. A calculation of the interest on $2,000 at 7 per cent. would be just a little bit more than this, but so small a difference as to make the two practically identical.
On October 17, 1916, we find a check for $2,366.96, by Gibson, as executor, to W.M. Hamer. As to this check, counsel says in his argument:
"The check for $2,366.96 was the payment of the $2,000 reconveyance price, with interest thereon to the date of the check, and the check for $2.086.14 was supposed to pay up the final casting of accounts between Hamer and Rising." — but says that Hamer's statement does not show that this is the difference between them on debts owed by Rising to Hamer, but adds:
"In fact, no explanation of this fact is made in the testimony by Hamer. But Gibson and Hamer testify that it is agreeable with Rising to pay this amount."
We do not find any item in the record to which the check for $2,366.96 could be applied. Counsel is mistaken when he says that it was for the reconveyance price paid by Rising to Hamer. As shown, this contract went into effect on June 1, 1915, and this check is dated October 17, 1916, one year four months and a half later, and by no calculation could the interest amount to $366.96.
Counsel for Rising also states in his argument that Hamer should be made to account for the amount received as half of the income, under the paper given by Rising to Hamer, July 28, 1915, but the statements on the record do not point with certainty to what this amount is; that is to say, we are *Page 526 unable, in the mass of figures, to pick out the items making the amount claimed. They may be there, but we have not been able to definitely ascertain them, so as to fix liability against Hamer. Besides counsel asks for final judgment:
(1) That the funds and collaterals now in the hands of the trustees, as shown in the records, be declared to be the funds and property of the estate of Hugh P. Price, to be held for the estate and paid to Rising as income. The reference does not correspond with the folio in number, but the statement is so closely allied to the place of reference, that we take the following, which we find in the record:
"Statement of Status of 15-Bale Contract.
"I. For the year 1914, 1915, collected by W.M. Hamer, as shown in testimony.
"II. For the year 1916, 1917, 1918, 1919, 1920, 1921, 1922, collected by the trustees as follows:
"(a) Notes and mortgage by J.H. David, dated May 27, 1921, in real estate for six thousand ($6,000) dollars, payable in five (5) equal installments of twelve hundred ($1,200 dollars each, due respectively May 27, 1922, 1923, 1924, 1925, 1926, interest before maturity, 7 per cent. and after maturity, 8 per cent.
"(b) Certificate deposit at First National Bank, Dillon, S.C. eight thousand eight hundred nine and 19/100 ($8809.19) dollars, dated February 26, 1925, at interest at 4 per cent."
These items can be disposed of by here finding and declaring that the same are the funds and property of the estate of Hugh P. Price, to be held by the trustees and paid to Rising as income, as suggested in the argument, and as shown by the record.
(2) In his second specification, counsel asks for judgment against Hamer in the sum of $2,818.41, which he claims is the proceeds, with interest added, to October 19, 1925, of the cotton collected by Hamer from David for *Page 527 the years 1914-1915 from the 15-bale contract. We find that Hamer is liable for the money received for the cotton for these two years, with interest, but the amount claimed is not correct, and will be corrected in the further finding in relation thereto.
(3) The third request for judgment is against Hamer and Bethea in the sum of $16,464.74, with interest from August 1, 1923, alleged to have been received by Hamer under the contract of February 16, 1910; the claim being further made that the total sum, with interest up to October 15, 1925, is $17,713.31. While judgment must be given against Hamer for the items referred to, the amount claimed is not correct and will be corrected in further disposing of this item. Reference to the tabulation upon which this claim is based shows that compound interest was charged on all of the items which made the calculations amount to the same as stated. This method of calculation is not correct, and is not approved. Courts do not favor allowing compound interest. Baker and Wife v. La Fitte, 4 Rich. Eq., p. 392 (now 25 S.C. Eq.).
(4) The fourth claim is for judgment against Hamer, in the sum of $2,086.14, with interest from January 29, 1916, but the attorney for Rising says that this is an unexplained check. We do not find this to be the case, but find it to be the check which was paid by Rising to Hamer for the reconveyance as of June 1, 1915. But the attorney for Hamer contends that this Court will not, "nor indeed has it the jurisdiction, to review matters not passed on by the lower Court. In fact, there are no exceptions to his Honor's decree relative to the accuracy of or the amounts shown by the accounting. We would have serious objection to much of the amounts claimed, were these involved in this appeal. His Honor, Judge Dennis, however, decided the case without ruling on the amounts, a consideration of them *Page 528 being unnecessary, and they are not, therefore, before this Court."
The answer to this suggestion is that the whole matter was before his Honor, Judge Dennis, and, having found adversely to Rising and his trustees, there was not any amount to fix. But the accounts were put in evidence, andwere before the Court. If there be errors in the statements, they have not been pointed out. We are not taking, but are rejecting, the audit made by Braddy, as being founded on a wrong basis. We are relying entirely on the returns made by the trustees, except that Braddy puts down the correct amount as given by the trustees, and then gives credit for $140 error, and in that respect his audit is more favorable to Hamer, as is next shown.
It will be noted that the income for the year 1910 is put down by the executors and trustees as $3,852.38. In this Brady says there is an error of $140, and takes it off and leaves the charge of $3,712.38, and this latter sum we are adopting in our findings.
The whole matter was before his Honor, Judge Dennis, and, had he found for Rising and his trustees, he would have had the basis for just findings as we have here arrived at from the record.
The exceptions for the most part relate to the setting aside of the contracts. The seventeenth exception alleges error in not requiring Hamer to return the proceeds of the 1914 and 1915 cotton, with interest.
The twenty-second exception is general, and is as follows:
"That his Honor erred, it is respectfully submitted, in holding in effect that, as between Rising and Hamer, as to the 15-bale contract, the equities were equal, and ordering each to pay his costs herein, in that he should have held that every transaction between the parties reeked with fraud and inequitableness, and Hamer should make restitution to *Page 529 Rising of all profits derived under all of said transactions and be required to pay all costs of Court."
These exceptions are sufficiently broad to enable the Court to settle all the issues, including the accounting, and the Court, having found that the contracts were inequitable and void, would fall far short of its duty if it simply sent the case back without doing its full duty towards ending litigation when within its power and jurisdiction to do so, and it may clearly settle any issue that arises in a case within its jurisdiction when called to its attention, or on its own motion, in promoting the ends of justice.
In pursuance of the conclusions of the Court, the following results have been attained:
(1) That Rising and his present trustees, Rogers and Adams, are entitled to judgment against Hamer, in the sum of $2,484.58, which is for the account of the 15-bale contract, with interest to December 1, 1925, and this is arrived at by taking $487.50 for 1914 and calculating interest on it from January 1, 1915, and taking $900 for the cotton for 1916, and calculating interest on it from January 1, 1916, and these items make the total above stated, and, in addition thereto, they are entitled to judgment against Hamer for $3,529.03, which is the amount that Rising paid for the reconveyance of his interest to him, with interest to December 1, 1925, and, in addition to the foregoing, Rising and his trustees, Rogers and Adams, are entitled to judgment against Hamer in the sum of $11,351.37, which is the profit derived from the Price estate, over and above the $2,400 per annum paid to Rising, calculated at the end of each year, for the years 1910, 1911, 1912, 1913, 1914, 1915, and judgment may be forthwith entered up in the clerk's office for Dillon County against W.M. Hamer, for the total of the foregoing mentioned sums of money, in accordance with the foregoing findings. *Page 530
We have found that W.T. Bethea was liable for the sums of money paid to him on account of this estate by Hamer, but, in view of the statements made in the argument of counsel for Rising and his trustees, we have determined to give judgment against Hamer alone, and leave is granted to him in this cause to apply in the Circuit Court for judgment against the estate of Bethea for whatever sums or property he may have paid or delivered to W.T. Bethea on account of sums received from the Price estate, leaving Hamer and the estate of Bethea to settle the matter as between themselves.
Judgment is given in favor of Rising and his trustees together, so that the matter may be handled through the trustees. The Court has not been able to find with such certainty as will enable it to base a judgment, what amount was paid under the agreement made by Rising on July 28, 1915, to divide with Hamer the specific income, nor do the facts disclose on what basis the check referred to, for $2,366.96 was paid to Hamer. The Court does not feel that, under the testimony now before it, it can give judgment on these items. The litigation should be ended; yet, if any definite sum can be found as having been paid under the contract of July 28, 1915, or if this last-named check can be traced as an amount received under the contract of February 16, 1910, and not embraced in the findings, Hamer should be required to account for and pay this item, as well as any sums received under the contract of July 28, 1915. Under our findings, he would be liable for such payments, if they can be properly traced; otherwise he would not be liable.
Since it appears from the record that J.B. Gibson became a trustee after the death of W.T. Bethea, an original trustee, it is only fair to Mr. Gibson to make this statement, taken from the argument of the attorney for Rising and the trustees: *Page 531
"Mr. Gibson at no time knew anything of any of the transactions between Bethea and Hamer and there is no real ground to claim that he did. There being no testimony that he did know of this transaction or had any knowledge of the actual fraud perpetrated, the attorney for Rising and present trustees have therefore never had any desire or reason to claim anything against him, and we so stated before Judge Dennis when this case was tried on its merits. However, Mr. Gibson did resign as a member of the board, and we think he acted properly in so doing, and he was not a member of the board when the testimony was taken before Sam McLaurin, referee."
The exceptions of W.M. Hamer are overruled, and the exceptions of Rising and the trustees are sustained in conformity with the findings herein.
There is one exception which has not been discussed, viz. the twenty-second exception, which alleges error in apportioning the costs. This exception is well taken and is sustained, and Hamer is adjudged to pay all costs and disbursements.
The decree is modified in accordance with such findings, and the case is remanded to the Circuit Court for the entry of judgments as indicated, with leave to Rising and his trustees, if they be so advised, to pursue in the Circuit Court a further inquiry upon the matter of charging Hamer under the contract of July 28, 1915, and the check for $2,366.96.
Let the decree of his Honor, the Circuit Judge, be reported.