The opinion of the court was delivered by
Mr. Justice McIver.This was an action to recover possession of certain personal property, consisting of mules, cows, hogs, and sundry farming implements. The plaintiffs having given the required bond, took possession of the property very soon after it was levied on by the defendant as sheriff; in fact, it does not seem that the property was ever removed from the plantation where it was levied on. Defendant, by his answer, claimed that *182he had levied on said property under executions against A. G. Means, sr., finding the same in his possession on the plantation of said Means ; and he prayed that the complaint be dismissed, and “that he have judgment for the return of said property, or for the value thereof, in case a return cannot be had.”
It seems that A. G. Means, sr., being at the time heavily indebted, with a considerable portion of his property covered .by liens for a large amount, on the 30th of December, 1887, executed a bill of sale to Robert Beaty, sr., for all the property now in question, the consideration recited therein being the sum of twelve hundred dollars. On the same day, said Means confessed a judgment to said Beaty for the sum of $8,254.60, and also executed a mortgage to Beaty on his house and lot in the city of Spartan-burg, to secure the payment of the sum of $6,000. Yery soon after these papers were executed, and on the same day, 30th December, 1887, all these papers — bill of sale, judgment, and mortgage — were assigned by said Beaty to the plaintiffs, who are the children of A. G. Means, sr., and the grandchildren of Robert Beaty, sr., he being the father-in law of said Means.
On the 12th of April, 1888, several of the creditors of A. G. Means, sr., obtained judgments against him upon debts contracted prior to the 30th of December, 1887, and under their instructions the defendant, as sheriff, levied upon the property in dispute, which appears to have remained in the possession of said A. G. Means, sr., after said bill of sale w'as executed up to the time of the levy. The plaintiffs claim the property under the bill of sale which had been assigned to them as above stated, and the judgment creditors, through their representative, the sheriff, insist that said bill of sale was fraudulent, having been executed by the said Means with intent to hinder, delay, and defeat his creditors, and is therefore void; that though given to said Beaty, it was well understood between them that he was immediately to assign the same, as he did do, to the children of said Means; and they also claim that the bill of sale, confession of judgment, and mortgage, all executed on the same day and at once assigned to plaintiffs, was a device resorted to by said Means and Beaty to evade the provisions of the assignment act.
Upon the issues thus presented by these adverse claims, much *183testimony was offered in the court below, -which it is needless to state, as we have no authority to consider or pass upon any question of fact in a case of this kind, but must confine ourselves to the inquiry, whether there was any error of law in the proceeding below'. The Circuit Judge, after instructing the jury as to the various points of law pertinent to the merits of the case, which will be hereinafter considered, instructed the jury as to the form of the verdict as follows: “If the verdict is for the plaintiffs, inasmuch as the plaintiffs have possession, you will say, ‘We find for the plaintiffs the property in dispute,’ ” and then, after speaking of the damages, which is unimportant here, he said : “If you find for the defendant, inasmuch as the plaintiffs have possession, if you find for the creditors, the sheriff being a mere representative, you will say, ‘We find for the defendant the property in dispute, and we find its value to be so much’ ” ; and then, after saying that he did not remember any testimony as to value, but leaving it to the jury to say whether there was any such testimony, he again told the jury that if they found for the defendant, they would have to fix the value, adding, however, that if there w7as no evidence as to value, “you can’t find the value, but find the property for the defendant.”
The jury having been recalled after they had retired, for the purpose of obtaining some further instructions, which they had asked for, as to the form of their verdict, the Circuit Judge repeated the instructions previously given, and after some colloquy between the judge, the foreman of the jury, and the counsel of either side, in regard to the testimony as to value, the judge again repeated his instructions as to the form of the verdict, and when he had reached the point of telling them that if they found for the defendant, “You will say, ‘We find for the defendant the property in dispute,’ ” he was interrupted by the foreman with this remark: “That is the conclusion we came to, and wrote the verdict, and some of them said that that was not right.” The judge thereupon said interrogatively, “You have reached a verdict?” To which the foreman replied, “Yes, sir; and to that effect.” The judge then said, “If that is the verdict you have agreed upon, we will receive it.” The jury thereupon returned the following verdict: “We find for the defendant the property in dispute.”
*184A motion for a new trial was made upon the ground, that the verdict was contrary to the evidence and the charge of the presiding judge, and upon the further ground, “That the verdict was erroneous in not being in the alternative, and not giving the value of the property designated in the verdict.” Upon the hearing of this motion, an order proposed by defendant’s counsel, the counsel for plaintiffs being present, but not assenting thereto, in which, amongst other things, it was recited that defendant’s counsel had agreed in open court, that if a delivery of the property in dispute cannot be had, they would not ask for its value,' was granted, refusing the motion for a new trial. .Judgment having been entered in accordance with the verdict, simply for the recovery by the defendant of the property in dispute, describing it as it was described in the complaint, and for costs, the plaintiffs gave notice of appeal upon the several grounds set out in the record, which are not repeated here, as they, together with the judge’s charge, should be incorporated in the report of the case.
We propose to consider first the ninth, tenth, and eleventh grounds of appeal, all of which relate to insufficiency in the form of the verdict. The law as to this matter will be found in section 283 of the Code, which reads as follows: “In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or if it have, and the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.” Now, it will be observed that in the first branch of the section which relates to the form of the verdict in respect to the value of the property sued for, the language is imperative — “shall assess the value of the property” — but in the other branch of the section relating to the damages sustained by the taking or detention of the property, the language is permissive only — “may at the same time assess the damages.” This necessarily implies that property sued for in an action of this kind always has a value which must be assessed by the jury, but that *185there may, or may not, be damages in a given case, and hence the jury is not required, but is permitted, to assess such damages as may have been proved.
It seems to us clear, therefore, that so far as that branch of the section, which requires the jury to assess the value of the property which may be found either for the plaintiff or defendant, is concerned, the statute is mandatory and not directory merely; and such has been the uniform ruling of this court. Robbins v. Slattery, reported in note, 30 S. C., 328 ; Eason v. Miller & Kelly, 18 Id., 381; Thompson v. Lee, 19 Id., 489; Lockhart v. Little, 30 Id., 326. It is urged, however, that in the three cases first cited (the last not bearing directly ufion the immediate point under consideration), the verdicts and judgments were for the value of the property only, and hence do not apply. That is true as to the case of Bobbins v. Slattery, though not as to the other two cases; but even admitting it to be so, we do not see how that can affect the question here. Those decisions proceeded upon the ground that the statute having prescribed the form of verdict in this class of cases, a verdict in any other form could not be regarded as a legal verdict. Whether this is a wise and proper statutory provision is not for us to consider. It is sufficient for us to say, Ita lex scripta est.
It is further urged, that it was incumbent upon the plaintiffs to prove the value of the property for which they were suing, and to allow them to take advantage of their failure to offer testimony upon that point would be permitting them to take advantage of their own wrong. We are unable to appreciate the force of this position. Inasmuch as the plaintiffs, by giving bond, had acquired possession of the property in dispute, it was quite as much, if not more, to the interest of the defendant to prove the value-of the property, the possession of which he was seeking to regain, as it was for the plaintiffs to make such proof. Indeed, in the attitude which the case had assumed by the delivery of the property to the plaintiffs, the defendant had practically become plaintiff, seeking to regain possession of the property; and if that could not be had, then he would be entitled to a judgment for its value.
Again, it is urged that the defect in the verdict can only be taken advantage of by the defendant; and as he has waived his *186right to do so, the verdict should be permitted to stand. We do not see how such waiver can have the effect of supplying a deficiency in a verdict confessedly not in the form required by law. It is a void verdict (Eason v. Miller & Kelly, supra), and the deficiency which makes it so, cannot be supplied by the act of one of the parties only. See, also, Thompson v. Lee, supra, where it was held that the release by the defendant of his claim on the horse sued for, entered on the record, could not validate the verdict.
On this ground, therefore, the so-called verdict must be set aside and a new trial ordered, without prejudice as to the merits of the case.
As this is decisive of the case, it is scarcely necessary to consider any of the other grounds of appeal. But as they have been presented, it is, perhaps, proper that we should dispose of them to avoid controversy as to them in the next trial.
The first ground certainly cannot be sustained, as the proposition there complained of is taken, substantially, from the recent decision of this court in the case of Meinhard v. Strickland, 29 S. C., 491.
The second ground is disposed of by the case of Lowry v. Pinson, 2 Bail., 324, and the other cases to the same effect.
That the third, fourth, and fifth grounds are without foundation may be seen by reference to the following cases: Smith v. Henry, 1 Hill, 16; Bird v, Aitken, Rice Ch., 78; Maples v. Maples, Ibid., 300; Nelson v. Good, 20 S. C., 223; Werts v. Spearman, 22 Id., 200.
As to the sixth ground, it will be sufficient to say that the Circuit Judge did not charge as there represented. His charge was, “that where suspicious transactions take place between near relatives, you would naturally expect that it should be explained wdth clearer and more satisfactory proof than if it were entirely betwixt strangers.” This was stating no more than a proposition founded in the principles of human nature — that one would be much more apt to make a voluntary disposition of his property in favor of near relatives than in favor of strangers — and this proposition seems to be sustained by the authorities cited in respondent's argu*187ment — Burt v. Timmons (29 W. Va., 411; 2 S. E. Rep., 787) and Livey v. Winton (30 W. Va., 554; 4 S. E. Rep., 457).
There was no error in refusing to charge, as is complained of in the seventh ground of appeal, for that depended largely upon a question of fact, which the Circuit Judge had no power to decide.
The eighth ground also does not correctly represent the judge’s charge, for he did instruct the jury that the notoriety of the sale was a circumstance to be considered in rebuttal of the presumption of fraud arising from retention of possession, and that was as far as he could have gone without invading the province of the jury.
The judgment of this court is, that the judgment of the Circuit Court be reversed upon the first point herein considered, and that the case be remanded to that court for a new trial without prejudice.