ing the return, and, in case of alienation, to whom alienated, are not competent evidence of the ownership of the lands, or that they were conveyed to the party to whom such records show they were, as they do not show from whose returns they were made.

10. Where tax records compiled from data secured from returns made by taxpayers, though incompetent, show that a husband had returned property of his wife as his own, he should be permitted, after proof of a custom for husbands to return their wives' property as their own, to explain his return, in an action seeking to subject her lands to the payment of his debts.

11. In an action to set aside conveyances as fraudulent the evidence disclosed that defendant purchased land in her own name, that she gave a bond and mortgage for a part of the price, that the balance was paid by her husband out of funds which had come to his hands from the sale of a part of her separate estate, but which he had deposited in his name. There was no evidence that defendant knew of her husband's insolvency or financial condition. The allegations of the complaint that defendant knew of her husband's insolvency, and conspired to defraud plaintiff, were specifically denied by her sworn answer; also by the sworn answer of her husband, as well as his testimony. 'Held, that a finding that such transfer was made to the wife for the purpose of defrauding the creditors of the husband, and with knowledge on her part of her husband's insolvency, was not warranted.

12. In an action to subject land bid in by a wife on the foreclosure of a mortgage executed by her husband to the payment of a deficiency judgment secured against the husband on such foreclosure, the confirmation of the sale to the wife, on motion of the mortgagee, does not estop the mortgagee to show that such sale was a sham, and really made to the husband, where it is claimed the husband furnished the money. 13. Evidence that a husband bid in a tract of land at a mortgage foreclosure sale, and that thereafter he surrendered his bid to his wife, in the absence of evidence contradicting the sworn answer of the husband and wife, which alleged that the wife borrowed the money to consummate the purchase, which was made in her name, does not warrant a finding that such purchase was made for the benefit of the husband, and for the purpose of hiding the property from his creditors.

14. Evidence that defendant's husband, after an action had been commenced against him by a creditor, for the purpose of securing a pastdue debt, and advancements made at the time, executed a mortgage on certain of his lands to his brother-in-law; that thereafter, on default, said mortgage was foreclosed, and the premises purchased by defendant with money borrowed from her brother, and secured by a mortgage on her lands,-does not sustain a finding that such transactions were made for the purpose of vesting the title to said lands in defendant, and defrauding her husband's creditors.

15. A finding that certain transfers of land were made to defendant by her husband, where the only evidence from which such finding could be inferred is incompetent, cannot be sustained. Appeal from common pleas circuit court of Union county; O. W. Buchanan, Judge.

Bill by Elizabeth De Loach, as survivor, against A. A. Sarratt, as an individual and as executor of the estate of M. P. Sarratt, deceased, and others. From a decree in favor of complainant, defendants appealed. Reversed.

Munro & Munro, Duncan & Sanders, and Bomar & Simpson, for appellants. W. B. De Loach and W. B. McCaw, for respondent.

POPE, J. When A. A. Sarratt and M. P. Sarratt, his wife, began their married life, in the month of November, 1868, they occupied a tract of land known as "Chullahoma,' containing 430 acres, more or less, belonging to the estate of A. O. Walker, deceased, who was the father of Mrs. M. P. Sarratt. In the year 1870 the said A. A. Sarratt and M. P. Sarratt, his wife, as plaintiffs, began a suit against the widow and children of the said A. O. Walker, and also his administrator, as defendants, in the probate court for Union county, in order that the lands of the estate of A. O. Walker, deceased, might be partitioned among his widow and children. In the year 1874, on the return of commissioners in partition, such lands were so portioned, and the Chullahoma tract was assigned to the plaintiffs, A. A. Sarratt and M. P. Sarratt, valued at over $4,000; and, this amount being in excess of Mrs. M. P. Sarratt's share by some $1,600, she was ordered to mortgage the same to secure the payment of the said $1,600 to such heirs at law of A. O. Walker, deceased, as were not given lands of equal value, so as to equalize the shares therein. As years rolled on, A. A. Sarratt purchased and took title in his own name to a tract of land known as the "King Tract," containing 365 acres of land. In the year 1880 (November 27, 1880) A. A. Sarratt purchased from James E. De Loach and Elizabeth, his wife, a tract containing 1,200 acres, at the price of $20,000, payable at the expiration of 10 years from the year 1880, and bearing 5 per cent. interest per annum, payable each year, and executed a mortgage of the 1,200 acres to them to secure said debt, both principal and interest. Mrs. M. P. Sarratt earnestly opposed the purchase by her husband of this 1,200 acres of land. In the year 1883 the said A. A. Sarratt sold to his wife's brother, S. O. Walker, 98 acres off of the Chullahoma tract of land at the price of $2,000, and made his deed alone for it. This sale of 98 acres off of the Chullahoma tract left it containing 332 acres of land. From the date of his purchase of the De Loach lands, and especially about the year 1883, A. A. Sarratt expended considerable sums of money in the improvement of such lands. He cleared 40 or 50 acres of original forest for cultivation. He added an "L" to the original dwelling house. He built 11 tenant houses, with brick chimneys. He erected a two-story grain house. He built a new gin house, and repaired the old one. He constructed a large stable, 50 feet by 30 feet. His estimate was that such improvements cost in the neighborhood of $2,000. One of his witnesses estimated the buildings erected at over $2,000. Two of plaintiffs' witnesses, while not denying the erection of the improvements, and the clearing of the land, did not value the cost thereof at anything like his figures. Each year from 1880 for eight years A. A. Sarratt paid the De Loaches $1,000 as the interest on $20,000 at 5 per cent. per annum. In the year 1884, A. A. Sarratt convey

acres of his land in Union county, in the state aforesaid, and that he again, in the year 1891, transferred and conveyed to her 642 additional acres of his land in said county and state; but diligent search of the records in the office of the register of mesne conveyance for the aforesaid county of Union, made as recently as the 15th day of February, 1896, reveals the fact that, if such alleged transfers and conveyances have ever been made by the said A. A. Sarratt to his wife, the said Mrs. M. P. Sarratt, the same have not been recorded as required by law, or at all, either within time or out of time. Sixth. That the alleg. ed conveyances and transfers of land by A. A. Sarratt to Mrs. M. P. Sarratt, his wife, whereby 1,307 acres of land in Union county, in the state aforesaid, are alleged to have been conveyed from the former to the latter, if ever made, were and are wholly pretensive, utterly without consideration, and were made without the knowledge of either James E. De Loach or Elizabeth De Loach, and without notice, either actual or constructive, to this plaintiff or to her co-plaintiff, James E. De Loach, in his lifetime. That the said pretensive conveyances from A. A. Sarratt to Mrs. M. P. Sarratt, if any such were ever made, were executed, as plaintiff is informed and believes, shortly before and in anticipation of the action for foreclosure and sale instituted by James E. De Loach and Elizabeth De Loach, his wife, on the 1st day of March, 1890, and shortly after the recovery of judgment in said action, and the establishment of the mortgage debt at $22,941.14, and were made with the intention and purpose to defeat, hinder, delay, and defraud the plaintiffs in that action, and the plaintiff, as the survivor of them, in the collection of the large deficiency found and adjudged to be due them by the said A. A. Sarratt on his mortgage debt. In this connection the plaintiff avers that the sald A. A. Sarratt, at the date of said pretensive conveyances, and of each of them, was totally insolvent, and his insolvency was known to his wife, the said Mrs. M. P. Sarratt, the pretensive grantee. And the plaintiff avers and charges further that at the times of the various pretensive transactions between A. A. Sarratt and his wife, Mrs. M. P. Sarratt, by means of which plaintiff is informed and believes that all of the property of the said A. A. Sarratt, both real and personal, was transferred to his aforesaid wife, the said A. A. Sarratt was insolvent, and the defendant Mrs. M. P. Sarratt was either positively apprised of her husband's insolvency, or had good reason to know that he was insolvent; and the various pretensive conveyances and transfers were had and made in pursuance of an original design and intent of the said A. A. Sarratt and M. P. Sarratt (the latter having been constituted a pretensive creditor of the former in furtherance of the scheme), determined on by them at the inception of each of the said transactions, to assign and transfer all of the property of the

said A. A. Sarratt to his wife, Mrs. M. P. Sarratt, for the benefit of his said wife, and through her for the benefit of himself, to the exclusion of all his bona fide creditors, and particularly James E. and Elizabeth DeLoach, and this plaintiff as the survivor of them. Seventh. That, the various pretensive conveyances from A. A. Sarratt to his wife, Mrs. M. P. Sarratt, having never been recorded, plaintiff cannot attach copies thereof or exhibits to this, her complaint, but she avers and charges on information and belief that said conveyances, if in existence as alleged by the defendants, cover all the real estate that A. A. Sarratt was seised and possessed of in Union county, South Carolina, and embraced and covered the following tracts of land, together with other tracts, the descriptions of which plaintiff has not been able to ascertain, viz.: (1) One moiety of all that tract of land situated in Union county, South Carolina, known as the "Thompson Mill Tract,' with the mill and machinery; the said moiety containing ninety-eight acres, more or less, as will more particularly appear, reference being had to the deed of James Munro, master, to A. A. Sarratt, dated November 4, 1889, and recorded • December 13, 1889. (2)

One undivided moiety in and to all that tract of land situated in Union county, South Carolina, known as the "Thompson Mills,' and also the mill and machinery thereon; said undivided moiety containing 98 acres, more or less, bounded by lands of J. J. Fowler, Mrs. Carothers, Clough Inman, and Clem Inman, as will more particularly appear, reference being had to deed from James Munro, master, to A. A. Sarratt, dated December 4, 1889, and recorded. (3) All that certain

tract of land known as the 'Woolbright Tract,' bounded," etc., "containing 295 acres; deed recorded on December 13, 1889. (4) All that tract, containing 365 acres, recorded in the office of the register of mesne conveyance for Union county in Book 29, page 750. (5) All that tract, containing 302 acres, deed recorded June 10, 1879, in Book 25, page 405. (6) A certain lot of land, containing 63.4 acres, deed recorded September 5, 1894. (7) All that tract, containing 185.7, being that tract sold by C. H. Peake as master in the case of J. E. and Elizabeth De Loach vs. A. A. Sarratt, January 4, 1893. Eighth. Plaintiff, in this paragraph, charges that, while the title to the 295 acres was made by James Munro, as master, to Mrs. M. P. Sarratt, the purchase money was paid by A. A. Sarratt, and that such resort of A. A. Sarratt was had to hinder, defeat, delay, and defraud his creditors; that A. A. Sarratt was insolvent; that Mrs. M. P. Sarratt had knowledge of the insolvency of her husband, and, having such knowledge, cooperating with her said husband in anticipation of plaintiff's judgment in foreclosure as aforesaid, and sale of the 1,200 acres of land bought by A. A. Sarratt of the plaintiffs in the first suit begun in 1890, she intended by such purchase to defeat plaintiff's recovery

against A. A. Sarratt. Ninth. In this paragraph the plaintiff charges that, while the said Mrs. M. P. Sarratt has the title to the 185.4 acres, purchased at master's sale of the 1,200 acres under the judgment in foreclosure of J. E. and E. De Loach against A. A. Sarratt, January 4, 1893, yet said purchase so made by Mrs. Sarratt was made with the funds of her husband, A. A. Sarratt, who was then insolvent, and had already transferred all his property to his wife, which said wife knew of his insolvency, and took the title to defeat, delay, hinder, and defraud the plaintiffs in the first suit, to wit, in 1890. Tenth. The plaintiff, in this paragraph, charges that if the lands conveyed to Mrs. Sarratt by James Munro as master and C. H. Peake as master, and all the personal property of A. A. Sarratt which he has conveyed to Mrs. M. P. Sarratt, should be sold, the proceeds of such sales would not discharge the plaintiff's judgment for deficiency,-over $11,000. That a receiver should be appointed to collect the rents. Wherefore plaintiff prays: (1) That each and every one of the pretensive deeds of conveyance from A. A. Sarratt to his wife, M. P. Sarratt, whether of real or personal property, be adjudged fraudulent and void, and that the same be vacated and set aside. (2) That the consideration of each of the deeds from James Munro, master, and from C. H. Peake, master, to M. P. Sarratt, described in subdivisions 3 and 7 of the seventh paragraph of the complaint, respectively, be adjudged to have been paid with the money of the defendant A. A. Sarratt, and that the deeds were taken in the name of Mrs. M. P. Sarratt to defeat, delay, hinder, and defraud James E. De Loach and Elizabeth De Loach in the collection of the large deficiency adjudged to be due them by A. A. Sarratt on his mortgage debt. (3) That A. A. Sarratt invested his own money in two certain tracts of land mentioned and described in subdivisions 3 and 7 of the seventh paragraph of the complaint, to which money his creditors were entitled, and had the land conveyed to his wife as a gift, to the prejudice of his creditors, and that therefore it be adjudged that the plaintiff in this action, as survivor of James E. and Elizabeth De Loach, has the right to follow that money into the property, and to have the property sold for the purpose of getting out of it that to which, as survivor, as aforesaid, she has the right. (4) That the lands conveyed to M. P. Sarratt by James Munro, master, and C. H. Peake, master, respectively, be sold, and the proceeds thereof applied in payment pro tanto upon the deficiency adjudged to be due by A. A. Sarratt on his mortgage-debt to James E. De Loach and Elizabeth De Loach, and to the plaintiff as the survivor. (5) That the judgment for the deficiency due to J. E. De Loach and Elizabeth De Loach by A. A. Sarratt on his mortgage debt be declared a first lien upon all the lands covered by the pretensive deeds from A. A. Sarratt to M. P. Sarratt, and that the lien of the said judgment be transferred and

attach to the proceeds of sale of all of the said tracts of land, and also to the proceeds of the sale of the two tracts of land in which the title was made to M. P. Sarratt by James Munro, master, and C. H. Peake, master, respectively. (6) That all the lands embraced within the pretensive deeds from A. A. Sarratt to M. P. Sarratt be sold, under the order of this court, and the proceeds applied pro tanto to the payment of the judgment for the deficiency due to J. E. De Loach and Elizabeth De Loach, and to the plaintiff as their survivor, by A. A. Sarratt, upon his mortgage debt. (7) That a receiver be appointed to collect and hold the rents from all the lands described in the complaint during the litigation, subject to the further order of the court. (8) That the defendants be required to pay the costs of this action. (9) For such other and further relief as to the court shall seems equitable and just." The complaint was duly verified by the plaintiff herself.

The answer of Mrs. Mary Pacolet Sarratt and A. A. Sarratt, each separately made, were verified by the parties themselves, in which verification each swears that all the matters and things set up in said answers, respectively, are true of their own knowledge, except that allegation charging the plaintiffs, James E. De Loach and Elizabeth, his wife, had notice of each and every purchase by and conveyance to Mrs. M. P. Sarratt of lands, which allegation is made upon information and belief. Mrs. Sarratt's answer alleges that on the 26th of November, 1880, and ever since that date, she was seised and possessed of valuable real estate located in Union county. which fact was well known by both James and Elizabeth De Loach, and that since that date she (Mrs. Sarratt) has acquired, by purchase and payment therefor with her own means and funds, the following additional lands, to wit: (1) 185.4 acres, part of the De Loach place; (2) Woolbright place, of 295 acres; (3) Thompson Mill tract of 98 acres; (4) the parcel of 365 acres on waters of Thickety creek, and that the parcels (3) and (4) were, at the time she purchased them, owned by her husband, A. A. Sarratt, who had mortgaged them, and that she purchased them at the public sale in foreclosure of the mortgage at full value, and afterwards received title therefor, of which facts, the present plaintiff and her husband had full notice of each purchase at the time of purchase, and said lands were, at the time of the commencement of this action, her freehold. She further alleges in her answer: "(2) This defendant denies the allegations contained in the paragraph numbered fifth of the complaint, except the allegation that she is the wife of her co-defendant, and the further allegation that no conveyance to her by her said husband is on record, and denies that any other lands except as hereinbefore alleged have been conveyed to her. (3) This defendant denies specifically each and every allegation of the paragraph numbered sixth of the complaint, and avers that the

plaintiff and her husband had notice of each and every purchase by and conveyance to her of lands. She denies that there was ever any pretensive or collusive conveyance or transaction of any sort between her and her said husband, or any fraudulent act done by her, or by and between him and her, and she denies each and every fraudulent act charged or al leged; and all and every purpose and intent to defeat, hinder, delay, or defraud the plaintiff or survivor, or the plaintiff and her said husband, or either of them; and she denies that she had notice or knowledge of the insolvency of her said husband, or had reason to know same, and denies that he was insolvent at the time of the said conveyance to her. (4) This defendant specifically denies each and every allegation of the paragraphs numbered eighth and ninth of the complaint. She denies all fraud and fraudulent acts, interests, purposes, or devices therein alleged, and denies all knowledge of the alleged insolvency of her co-defendant, or any expected large or other deficiency upon any anticipated suit against him, or deficiency upon any judgment against him. (5) Defendant further denies that her co-defendant ever transferred to her any personal property or any moneys as charged or alleged in the complaint, or that she was ever made or became a pretensive or collusive creditor of his, or that she has been guilty of any fraud or fraudulent intent, purpose, or act, or that any pretensive deeds were made to her; and she denies all fraud and fraudulent intent, purpose, or act by her co-defendant, or any knowledge by her of the same. (6) The defendant admits paragraphs 1, 2, 3 of the complaint, and she alleges that the purchase price of the lands mentioned in the paragraph first of the complaint, containing about 1,200 acres, was $20,000, and the purchase was made with the understanding and agreement at the time and afterwards for valuable consideration, that, if her co-defendant should be unable to pay for the same at maturity, or should so desire the vendors, plaintiff and her said husband would accept a reconveyance of same, and cancel the mortgage securities, which agreement they refused to carry out, and such refusal was a fraud upon the co-defendant. Defendant denies the allegations that, instead of paying the installments of his mortgage indebtedness as they became due, her co-defendant made purchases of real estate with the proceeds of his farming operations upon the De Loach tract, and alleges that he not only paid said installments as they became due, aggregating about eight thousand dollars, but expended large sums of money, amounting to many thousands of dollars more, in remodeling and repairing the mansion house, and in erecting tenant houses, gin houses, barns, store houses, and other valuable permanent improvements upon the premises, which greatly enhanced its value as a plantation, and at same time made it more desirable as a place of residence; and that at the time of the sale thereof under the judgment for foreclosure

(7)

said lands were intrinsically of much greater value than when purchased by her co-defendant, and which the plaintiff and her said husband well knew would be the case when sold by them. (8) Defendant denies all allegations of the complaint inconsistent with the defense herein alleged," etc. "(9) Defendant pleads formally the statute of limitations arising from the lapse of more than six years from the commencement of this action to the dates of alleged conveyances," etc.

The defendant A. A. Sarratt, in his answer, asserts with all positiveness a denial of all the allegations of the complaint at variance with the allegations set up in the answer of his wife. He reiterates a positive denial of all fraud, fraudulent intents, devices, and acts; alleges that his being now devested of all property except some judgments against others is the result of accident in the way of failure of crops, low prices thereof, shrinkage in values, etc.

The two answers were served in April, 1896. On the 22d day of April, 1896, the issues were joined. On the 3d day of July, 1896, a notice signed by Messrs. Munro & Munro as defendants' attorneys, together with an affidavit of Wm. Munro, Esq., was prepared, and on the 4th of July, 1896, was duly served on plaintiff's attorneys, whereby the plaintiff was notified that at the next sitting of the court of common pleas for Union county, on July 8, 1896, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, the defendants would apply for an order "setting the issues of this question for trial by a jury, or for such other relief as may be best." (The brief is imperfectly printed, and no doubt the notice called for the settlement of such issues of fact relating to title to land, etc., as the parties might desire.) This motion was not called up at such July term, 1896, but was called up before his honor, Judge Ernest Gary, at the September term, 1896. At that term, in connection with this notice, the plaintiff's attorneys, by their affidavit, brought it to the attention of the presiding judge that Mrs. Mary Pacolet Sarratt had departed this life on the 13th day of September, 1896, survived by her husband, the defendant A. A. Sarratt, and her eleven children, to wit, Sarah E. Rice, Olive E. Sarratt, Inez L. Sarratt, Sidney G. Sarratt, William J. Sarratt, Ann Pacolet Sarratt, James A. Sarratt, Ethel W. Sarratt, Clara H. Sarratt, Melvina W. Sarratt, and Vivian Sarratt, as the successors in interest of the said Mrs. Mary P. Sarratt, and that the plaintiff is desirous of procuring an order allowing the action to be continued against the successors in interest of the aforesaid M. P. Sarratt, pursuant to the provisions of section 142 of the Code of Civil Procedure of South Carolina. Judge Ernest Gary, on the 28th of September, 1896, granted this order: "It appearing to the satisfaction of the court that since the commencement of this action, and after answers of each of the defendants had been served and filed, the defendant M. P. Sarratt died