Egan v. Bissele

Mr. Chief Justice McIver

3

*5634 *562dissenting. Not being prepared to assent to the conclusion reached by Mr. Justice Pope, I propose to state briefly my own views. There can be no doubt that, under the express terms of the deed of 25th September, 1876, the title to “Bonny Hall” vested in Henry Edward Bissell for the purpose of performing certain trusts therein declared, and that, until all of those trusts were performed, Mrs. Sarah H. Bissell would have no interest in or right to “Bonny Hall.” Passing by the first two trusts declared in that deed, as they are conceded to have been performed, the real inquiry in this case is, whether the third trust has been performed. That trust is “to secure and pay unto the said Henry Edward Bissell,” the debt mentioned in the deed, amountingto somethingover $10,000. As I understand it. there is no claim, on the part of the appellants, that this $10,000 debt has ever been paid in money, but their claim is that such debt has been extinguished or discharged by the two assignments from Henry Edward Bissell to Sarah H. Bissell, of that debt. The defendant, while admitting the formal execution *563of these assignments, alleges in his answer that such assignments were without consideration moving from Mrs. Bissell, the person named as assignee, but were executed at the request of J. Bennett Bissell, the person who created the trust, for a temporary purpose, which has been accomplished; and that said assignments thereby became inoperative, null and void. If these allegations in the answer be true in point of fact (and they must be so taken to be, in considering the demurrer), then I am inclined to think that the third trust cannot be regarded as performed, and hence, that the legal title still remains in Henry Edward Bissell, and will continue until the debt to him has been paid or otherwise' legally discharged. It seems to me, therefore, that there was no error in overruling the demurrers, and none in the order framing issues to determine thefundamental fact upon which respondent’s claim of title rests. The cases of Kaphan v. Ryan, 16 S. C., 357; Moffett v. Hardin, 22 S. C., 9, and Groesbeck v. Marshall, 44, S. C., 414, cited by counsel for respondent, are sufficient to show that it is competent to introduce parol evidence to show the purpose for which an obligation under seal, or other like instrument, was given.

Mr. Justice Gary conmrs in dissent.