Opinion
13968
January 9, 1935.
Before OXNER, J., Calhoun, January, 1934. Affirmed.
Action by D.J. Crook, as guardian ad litem for Frances Louise Crook, against the Hartford Fire Insurance Company and others. From a decree, plaintiff appeals.
The order of Judge Oxner follows:
The above action was commenced in February, 1933, for the purpose of recovering on a fire insurance policy issued by the defendant, Hartford Fire Insurance Company, on November 28, 1931, in the sum of $1,500 covering a dwelling near Cameron, Calhoun County. The dwelling insured was totally destroyed by fire on February 13, 1932. Said policy was issued in the name of M.E. Crook with loss payable clause to L.M. Rast as his interest may appear. In her complaint plaintiff alleges that she is the owner of said property and is entitled to receive the proceeds of the insurance.
In his answer the defendant Rast denies that plaintiff is entitled to the proceeds of said policy, and further alleges that from the time said policy was issued until the fire, that he had an interest in the property to an extent exceeding the amount of the insurance as vendor of a life interest; that on March 3, 1931, he sold to his codefendant Crook said premises for the sum of $2,000.00 payable in certain installments; that it was agreed that Crook should procure and keep in force insurance on the buildings, and that in accordance with said agreement that the policy was transferred to him; that said indebtedness remains due and unpaid; that the premiums on said policy were paid by Crook, and he asks judgment for the amount of said policy.
The defendant Crook answered the complaint, alleging that he owned a life interest in the premises; that the policy was procured and premiums paid by him; that the defendant Rast has no interest in said property; that the real estate upon which said building was located was sold for taxes and bid in by plaintiff; and that the proceeds of the insurance should be used in replacing the building destroyed.
Under a consent order, the defendant insurance company paid the net proceeds amounting to $1,428.20 to the Clerk of Court and was dismissed as a party to the action, the fund being held subject to the further order of the court.
The case was referred to J.A. Merritt, Esquire, as special referee, who took the testimony and filed a report, on June 29, 1933. The defendant M.E. Crook filed no exceptions to the report of the special referee. The plaintiff filed numerous exceptions to the report of the special referee. At the hearing before me, the parties agreed that all issues raised by the exceptions would be reserved except the issues as to whether the defendant Rast had an interest in the proceeds of said insurance and, if so, to what extent. The following stipulation was filed by counsel for plaintiff at the hearing:
Counsel for plaintiff admit the facts as found by the special referee, but they do not admit his conclusions of law found in paragraphs 6 and 7; they disagree with his conclusions and recommendations to the disposition of the insurance funds, and the case now comes to this Court upon the single exception following:
The special referee erred in finding and concluding that the defendant Rast was entitled to share in the proceeds of the insurance money held by the Clerk of Court in this case, the error being:
(a) That neither he nor his codefendant, M.E. Crook, had any interest in, or claim upon, the said fund when this action was commenced, said fund at that time being the property of the infant plaintiff.
(b) That if either the said L.M. Rast or M.E. Crook had any interest in said fund at that time, such interest was considerably less than that found by the said special referee.
In consideration of this appeal, reference may be had to the minutes of the special referee by the Court and all counsel engaged in the case.
Among the facts disclosed by the record and found by the referee, for a proper understanding of the issue which I am now to pass upon, the following may be restated:
The property involved in this action was originally owned by Mrs. Z.L. Crook, deceased. Upon the death of Mrs. Z.L. Crook in 1916, the defendant, M.E. Crook, her son, became the owner of a life interest in the property; and the plaintiff, Frances Louise Crook, daughter of M.E. Crook and granddaughter of Mrs. Z.L. Crook, became the owner of the remainder.
"That the said life tenant, M.E. Crook lost by foreclosure to the South Carolina Savings Bank his life interest in said premises. At the request and solicitation of M.E. Crook, L.M. Rast purchased the said premises along with certain other property from the South Carolina Savings Bank and at the same time Rast entered into an agreement to sell the said life interest back to M.E. Crook for $2,000.00, with interest, and payable in certain installments. The said M.E. Crook was to keep the property insured for the protection of L.M. Rast and to pay all taxes due on the property. The fire insurance policy was taken out by Crook, the premiums paid thereon by him and the loss clause therein payable to L.M. Rast as his interest may appear. This agreement was entered into on the 22nd day of June, 1927. The said M.E. Crook made numerous payments thereon but failed to meet the terms of his agreement and so on the 3rd day of March, 1931, they entered into a new agreement whereby Crook was to pay the sum of $2,000.00 for the said life interest in certain installments, all unpaid balances to bear interest at 8 per cent. per annum. The said M.E. Crook has made no payments on this agreement and also failed to pay the taxes assessed against said property for the year 1931 and as a consequence the said premises were sold by the Tax Collector for Calhoun County on the 3rd day of February, 1932, and at such delinquent tax sale the premises were bid in by the Calhoun County Sinking Fund Commission for the amount of the taxes and cost."
The dwelling was totally destroyed by fire on February 13, 1932, or about ten days after the tax sale. Neither M. E. Crook nor L.M. Rast redeemed said property before the expiration of one year allowed by law to redeem. On or about February 2, 1933, the plaintiff, as trustee for Frances Louise Crook, purchased from the sinking fund commission its bid, and on February 2, 1933, received deed to the property consisting of 134 acres, upon which the dwelling was situated. The consideration stipulated in the deed is $89.43 — apparently representing the amount of taxes and cost. At the time plaintiff purchased the bid of the sinking fund commission, he knew the dwelling had burned, but states that at that time he considered the life interest, exclusive of the building burned, as worth the amount of the bid.
In addition to passing upon certain issues that are reserved and are not before me, the referee, on the issue now before me, found in effect that Rast was entitled to the income on the proceeds of insurance during the life of M.E. Crook, with the remainder to plaintiff.
Stated in concise form, the status of the property at the time of the fire was as follows:
M.E. Crook was in possession of the property, as vendee, under an agreement to purchase his life interest from L.M. Rast.
L.M. Rast owned the life interest of M.E. Crook, as vendor, under an agreement to sell to M.E. Crook, upon which agreement the amount unpaid exceeded the amount of insurance on the dwelling.
The sinking fund commission of Calhoun County held a bid made at a tax sale about ten days prior to the fire, which bid was about one year later assigned to the plaintiff, as trustee.
Both M.E. Crook and L.M. Rast had the right to redeem within one year from the date of the tax sale.
Frances Louise Crook owned the remainder.
It is clear that only the life interest of M.E. Crook was sold for taxes, and said tax sale in no way affected or prejudiced the interest in remainder of the plaintiff, Frances Louise Crook. Taylor v. Strauss, 95 S.C. 295, 78 S.E., 883; Campbell v. Williams et al.; 171 S.C. 279, 172 S.E., 142, 145.
In Campbell v. Williams, supra, the Court said: "Under the statutes of this state it is well settled that the duty is on the life tenant to pay the taxes and that the interests of remaindermen are not affected by reason of the failure of the life tenant so to do. It is also well settled that no taxes may be assessed against the interests of remaindermen during the existence of the life estate, the reason being that the Legislature supposed the value of the life estate would be sufficient to satisfy the taxes and it was the intention under our statute to protect the rights of remaindermen and not allow them to be sacrificed where no necessity therefor exists."
The plaintiff, therefore, in purchasing the bid of the Calhoun County Sinking Fund Commission, occupies no stronger position than if she were an outside purchaser. She certainly acquired no better position than that of the sinking fund commission.
It would also seem to be clear that at the time of the fire, M.E. Crook, L.M. Rast, the sinking fund commission, and the plaintiff each had an insurable interest in the dwelling destroyed.
"It may be said, generally, that any one has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction." 14 R.C.L., 910.
"An insurable interest in property is any right, benefit or advantage arising out of or dependent thereon, or any liability in respect thereof, or any relation to or concern therein of such a nature that it might be so affected by the contemplated peril as to directly damnify the insured." Joyce on Insurance (2d Ed.), § 887.
Accordingly, it is well settled that a life tenant or his assignee has an insurable interest. Joyce on Insurance (2d Ed.), §§ 964 and 964-a. Also, the remaindermen. Section 965.
In 26 C.J., page 34, we find: "A life tenant has an insurable interest in the property to the full value thereof. Remaindermen and reversioners also have insurable interests in the property, and may either take out separate insurance on their respective interests, or may insure such interests jointly."
Also in C.J. — Cyc. P.A., 1927-1931, at page 1619, we find: "One in possession of premises sold for taxes with right to redeem has insurable interest. Alta (1924), 2 Dom. L.R., 836."
Although each of the parties above named had an insurable interest and could have protected such interest in the dwelling by procuring a fire insurance policy thereon, the only policy in effect was the policy in question issued in the name of M.E. Crook, with loss payable clause to L.M. Rast as his interest may appear. The premiums were paid by Crook under his agreement with Rast to keep the property insured for the protection of Rast. So far as the record discloses, the zeal of the plaintiff in the matter of insurance only developed and became apparent after the loss.
In the determination of the issue before me, the nature of an insurance contract must be borne in mind. This is stated in Joyce on Insurance (2d Ed.), § 23, as follows: "It is well settled that insurance is a personal contract, whatever the subject-matter of the insurance may be. It is a contract by which the insurer undertakes to indemnify or pay money to the insured in the manner and subject to the conditions agreed upon. * * * This obligation does not run with the property whether it be real estate or personalty, neither does it pass with the title unless assigned with the consent of the insurer, or unless by extraordinary or special and express stipulation of the parties it is made to run with the subject-matter. * * * The distinction which underlies this construction is that the thing is not insured but the right appertains to the person since the contract is not in its nature an incident to the property."
This construction is in accord with the decisions of this State. In speaking of the nature of an insurance contract, the Supreme Court in Annely v. DeSaussure, 26 S.C. 497, page 505, 2 S.E., 490, 494, 4 Am. St. Rep., 725, said: "Insurance is not an incident to the thing insured, but indemnity or compensation to the person insuring, for the loss which he sustained. Wilson v. Hill, 3 Metc. [Mass.], 66; Carpenter v. Insurance Company, 16 Pet., 496 [ 10 L.Ed., 1044]. Under this case last cited, the question is fully discussed in notes (2 Amer. Lead. Cas., 247), where the conclusion is stated as follows: `At the present day a policy of insurance is invariably treated as a contract to indemnify the party insured, and not as a mere undertaking to be answerable to the extent of whatever injury may be sustained by the subject-matter insured. This construction has always been put on policies against fire. Saddlers' Insurance Company v. Badcock, 2 Atk., 554.'"
In Annely v. DeSaussure, supra, the Court held that an insurance policy taken out by a tenant in common did not inure to the benefit of the cotenants.
In Steinmeyer v. Steinmeyer, 64 S.C. 413, 42 S.E., 184, 186, 59 L.R.A., 319, 92 Am. St. Rep., 809, we find the following: "The authorities generally agree that a contract of fire insurance is a personal contract between the insurer and insured, by which the former undertakes to indemnify the latter for the loss he sustains by fire. Being a personal contract, it does not run with the buildings said to be insured, is not an incident to the thing insured."
The personal nature of an insurance contract was again recognized in Phifer Gossett v. Belue et al., 108 S.C. 61, 93 S.E., 388. In that case the seller sold a piano to the purchaser, taking title retention contract. The purchaser procured insurance on the piano and thereafter it was destroyed. The Court held that the proceeds of insurance belonged to purchaser and not to seller.
In Swearingen v. Insurance Company, 52 S.C. 309, 315, 29 S.E., 722, 723, the Court said: "While a policy of insurance is purely a personal contract between the insurer and the assured, and hence a mortgagee of the premises insured, merely as such, has no interest, either in law or in equity, in a policy of insurance taken out by the mortgagor in his own name, and for his own benefit, yet, if the mortgagor is bound, either by covenant in the mortgage or otherwise — for example, by a valid verbal agreement — to keep the property insured, as a further security for the payment of the mortgage debt, then the mortgagee is entitled to an equitable lien upon the money due on the policy of insurance, even though taken out in the name of the mortgagor."
While recognizing the construction that a contract of fire insurance is a personal contract between the insurer and the insured and does not run with the building insured, and is not an incident to the thing insured, the Supreme Court of this State has held that where the insured occupies the relationship of trustee, or quasi trustee, toward another, the Court will hold him accountable for the proceeds of insurance on the ground of public policy.
Accordingly, in Bath South Carolina Paper Company v. Langley, 23 S.C. 129, the Court held the insured accountable to the true owner where the insured had purchased property at a sheriff's sale under circumstances amounting to fraud in law, and, while in possession under the sheriff's deed, had insured the property and it having burned, received the insurance money. The Court stated that the insured stood in the relation of quasi trustee toward the true owners.
Upon the same theory of trust relationship, the Supreme Court has held (Clyburn v. Reynolds, 31 S.C. 118, 9 S.E., 973, 980; Green v. Green, 50 S.C. 532, 27 S.E., 952, 62 Am. St. Rep., 846), that insurance money collected by a life tenant on a total loss by fire should be used in rebuilding, or that the interest on the proceeds of insurance should be paid to the life tenant during the period of his life and the corpus to the remainderman, upon the ground that a life tenant, with respect to the property insured, is a trustee for the remainderman, and that public policy requires such a disposition of the proceeds of insurance so affected.
The Court said in Clyburn v. Reynolds, supra: "In case of a total loss by fire the fund arising from general insurance is substituted for the destroyed property, and the life-tenant will be entitled to the interest for life, and the remainderman to the principal."
In Green v. Green, supra, the Court said, page 532 of 50 S.C. 27 S.E., 952, 959: "It is to be regretted that the decisions of the Courts of the different States of this Union are not in accord as to the relation a life tenant bears to the real property which may be insured, so far as the remaindermen are concerned. All admit that, if the will or deed which creates the life estate requires a policy of insurance to be effected by the life tenant, the proceeds of such insurance should be used in rebuilding the property destroyed by fire, or put at interest, and that in the latter event all the interest earned is the property of the life tenant, as long as such tenancy lasts, and after that the fund is paid over to the remainder-men. But in those instances when the will or deed creating the life estate is silent as to insurance, and the life tenant insures the property, the Courts of some of the states decide that the proceeds of such a policy may be received by the life tenant as her own property in fee. Our own State, along with others, holds the doctrine that a life tenant holds the relation of an implied or quasi trustee to the remainder-men, and that any proceeds of a fire policy are subject to the laws regulating trusts. Clyburn v. Reynolds, 31 S.C. 118, 9 S.E., 973."
While the rule announced in Clyburn v. Reynolds, and Green v. Green, supra, is generally known as the minority rule and is regarded in most jurisdictions as at variance with the universally accepted doctrine that a contract of insurance is a personal contract and inures to the benefit of the party with whom it is made (see excellent discussion in the cited case and annotation found in Thompson v. Gearheart, 137 Va., 427, 119 S.E., 67, 35 A.L.R., 36), it is the well settled law of this State. Under this rule, counsel for Rast concedes that his interest in the proceeds of insurance could not exceed the income therefrom during the life of M.E. Crook, and the principal would go to the plaintiff as remainderman.
Counsel for plaintiff contends that neither Crook nor Rast has any interest whatsoever in the proceeds of insurance, and, in any event, such interest could not exceed the income from the proceeds of insurance for one year during which Crook was entitled to possession. Plaintiff contends that, neither Crook nor Rast having redeemed within one year after the tax sale, the life estate of Crook passes to the sinking fund commission, and by its assignment of bid to plaintiff, and that this bid and assignment carried with it the life interest of Crook in the proceeds of insurance. It is true, as events subsequently turned out, that Crook lost his life estate in the real estate and Rast his mortgage lien or vendor's lien thereon, but it by no means follows that they lost the life interest in the proceeds of insurance.
The rights of the parties must be determined as of the time of the fire and not one year later. At the time of the fire, both Crook and Rast had an insurable interest. Crook had the right of possession for one year from the date of sale. He had the right to redeem. Rast had a mortgage or vendor's lien on Crook's interest. Rast also had a right to redeem. Under Section 2855 of the Code of 1932, the purchaser at the tax sale was entitled to "a receipt for the purchase money," but the sheriff could not "make title to the purchaser until the expiration of twelve months from the day of sale" and not then unless the property was not redeemed. The sale did not operate as a final and irrevocable divestiture of the title of the owner. 26 R. C.L., 427. "The mere sale itself does not operate at once to transfer title to the purchaser." 61 C.J., 1291. Plaintiff certainly acquired no greater right to the income for life on the proceeds of insurance than that held by her assignor, the sinking fund commission. The case may be regarded the same as if the sinking fund commission was now claiming the life interest in the insurance funds. Upon what theory could the purchaser at the tax sale make such claim? Surely Crook and Rast did not occupy the relationship of trustee or quasi trustee to the purchaser at the tax sale. If insurance is a personal contract and is neither an incident to the thing insured nor run with the land, upon what theory can it be said that the right of Rast to the income on the proceeds of the policy for the life of Crook was divested by the failure to redeem? Plaintiff contends that there was a trust relationship between Crook and Rast, his mortgagee, and said purchaser and predicates such conclusion upon the provision in Section 2855, Code of 1932, wherein it is provided "that in case of threatened waste or damage to the premises by the owner or any other party, during the twelve months allowed for redemption, the purchaser at said tax sale shall have the right to apply to the Court of Common Pleas or a Judge thereof for injunction against such waste and for a receiver to take charge of the property until the end of the twelve months for redemption unless sooner redeemed." That contention is fully answered by the decisions of this State wherein a similar right is given to a mortgagee in case of waste or damage to the property by the mortgagor. But notwithstanding such right on the part of the mortgagee, under the well-established decisions of this State in the absence of a covenant to insure, the mortgagee is not entitled to the proceeds of insurance procured by the mortgagor for the protection of the latter's interest.
The plaintiff only acquired the life interest of Crook in the real estate by deed of the sheriff made almost a year after the fire. If a policy of insurance is not an incident to the property and does not run with the title, how could Rast have been divested of his right in this insurance money by such tax deed?
The reasoning of the Court in Steinmeyer v. Steinmeyer, supra, is applicable here. In that case Eliza R. Steinmeyer conveyed certain real estate to Carrie Steinmeyer in 1894, who from 1894 until the loss occurred carried insurance on the property in her own name. The Court in a prior action held said deed was voluntary and said property subject to the grantor's creditors, the remittitur being filed May 2, 1899. The policy involved was issued on May 8, 1899, and loss occurred May 24, 1899. After the fire, the property was sold under order of Court and the proceeds applied to the judgments in favor of said creditors, leaving a balance due thereon more than the amount of insurance claimed. The creditors of the grantor claimed that they were entitled to the proceeds of insurance on the theory that the grantee was a quasi trustee for the creditors, said deed having been set aside, and in support of that contention relied on the cases of Bath South Carolina Paper Co. v. Langley; Clyburn v. Reynolds, and Green v. Green, supra. The Court held that there was no trust relation, and insured was entitled to the proceeds upon the ground that insurance is a personal contract and does not run with the building insured.
The Court said, page 421 of 64 S.C. 42 S.E., 184, 186: "If, therefore, Carrie Steinmeyer had an insurable interest, and her loss with reference to that interest has been estimated to be the fund in dispute, and if the contract for which she alone paid the premium is one of personal indemnity, upon what principle of law, justice, or public policy can that which is hers be given to the creditors of another? It is not doubted that the creditors of Eliza Steinmeyer had the right to resort to the insured property, or to that into which the insured property had been converted, having the right to follow the property of their debtor; but this give them no right to the insurance money, which does not represent their debtor's property, but represents the amount of personal indemnity going to Carrie Steinmeyer for her loss."
The following language of the Court in said case is applicable to the case at bar: "Can it be said that the insured shall take nothing as the fruit of her contract with the company, for which she alone paid the consideration?"
The plaintiff, as remainderman, had an insurable interest, but she saw fit not to insure it. The sinking fund commission had an insurable interest, but they saw fit not to insure it. Crook had an insurable interest, and Rast to protect himself was vigilant enough to have it insured. Under the rule above announced plaintiff gets the principal of the insurance proceeds after the death of the life tenant, should she also be awarded the income and Rast take nothing as the fruit of his contract?
Plaintiff urges, neither Crook nor Rast having redeemed, that the status of the parties is as follows: Crook was a tenant for one year, the purchaser at the tax sale became the life tenant subject to the one-year tenancy of Crook, and plaintiff owned the remainder; that Crook while in possession during such year was trustee for the purchaser at the tax sale to the extent of his interest, and trustee for the remainderman as to her interest in the remainder; that, upon this trust theory, the maximum interest of Crook in the insurance proceeds could not exceed the income therefrom for one year, the purchaser at the tax sale to receive the income after the expiration of such year during the life of Crook, with the remainder to plaintiff.
This contention is predicated necessarily on the status of the title as it developed almost one year after the fire and not the status as it existed at the time of the fire. At the time of the fire, the title was in Crook and had not passed to the purchaser, Crook was entitled to redeem. It could not be said at the time of the fire that the status of Crook was only that of a tenant for one year. Furthermore, the fact that Crook, as life tenant, was a quasi trustee for the remaindermen would not make him a trustee for the purchaser at the tax sale. No case has been cited, and I found none, extending the rule applicable to life tenant and remaindermen as to insurance to the degree contended for by plaintiff. To sustain such contention, the construction universally adopted in this State as elsewhere, as to the personal nature of an insurance contract, would have to be disregarded, and there would have to be substituted a new rule of construction to the effect that insurance is an incident to the thing insured and runs with the title to the property.
The case of Stockton National Bank v. Home Insurance Company of New York, 106 Kan., 789, 189 P., 913, 11 A.L.R., 1304, is analogous. The syllabus is as follows:
"Insurance — mortgaged property — right of purchaser at foreclosure.
"1. Where property is insured by the mortgagor for his own benefit with a loss-payable clause in favor of the mortgagee, and the mortgagor defaults and the property is sold under foreclosure proceedings, and during the redemption period the property is destroyed by fire, it is held that the purchaser of the property at the foreclosure sale cannot maintain an action against the insurance company to recover the insurance, and that he has no claim to the proceeds of such insurance on the theory of assignment, or subrogation, or otherwise.
"2. A purchaser at a sale under a mortgage foreclosure has, during the redemption period, an insurable interest in the property."
The Court in that case used the following language: "The purchaser at the sheriff's sale, although that sale was conditional and the property was subject to redemption, had an insurable interest which he himself might have protected by insurance; * * * but that interest was not covered by the policy issued for the benefit of the mortgagor and the original mortgagee."
Also, in the A.L.R. Annotation to said case we find the following (page 1309 of 11 A.L.R.): "If the policy does not provide for payment of the loss, if any, to the mortgagee, and there is no agreement between the parties with respect to insurance, there is authority, which appears sound, to the effect that the mortgagor who has taken out insurance to protect himself is entitled to the proceeds arising under the policy for a loss occurring after foreclosure and during the period of redemption, his insurable interest not ceasing at the time of the sale." Also, see, 6 L.R.A. (N.S.), 448, Note.
Although the consideration of the bid and the assignment thereof to plaintiff was only nominal, being less than $100.00, it is urged that purchaser at the tax sale has sustained a loss on account of the depreciation resulting from the destruction of the dwelling. The answer to this is that ample opportunity was afforded such purchaser to protect itself by insurance.
I, therefore, conclude that Rast is entitled to the income on the funds deposited with the Clerk of Court, after necessary costs and expenses of this action are deducted, for and during the life of Crook, and that upon the death of Crook the plaintiff is entitled to the principal. It is conceded on account of his mortgage or vendor's lien that Rast has succeeded to all the interest of Crook.
At the hearing before me, it was agreed that in the event I reached the above conclusion, that the parties preferred an immediate division of the funds, and, under said agreement in lieu of paying the interest to Rast during the life of Crook, with principal to the plaintiff, said funds will be divided between Rast and plaintiff in accordance with the ratio found by the referee.
It is, therefore, ordered that the exceptions to the report of the special referee be, and the same are hereby, overruled. And it is further ordered that said report to the extent that it determines the issues passed upon by me be, and the same is hereby, confirmed. Certain issues as above stated were reserved and not presented to me, and these will be left open for future determination.
Messrs. J.C. Hiott, Adam H. Moss and James A. Moss, for appellant, cite: Construction of statutes: 169 S.C. 203; 31 S.C. 554; 128 Cal., 16; 61 C.J., 1304; 107 S.C. 469; 21 C.J., 202; 48 P., 66, 100 S.C. 402; 59 C.J., 1036; 132 N.W., 495; 37 Cyc., 1370. Contingent remainder: 87 S.C. 59; 8 Ohio, 216; 44 Wis. 489; 118 N.W., 853. As to rights of life tenant: 31 S.C. 118; 50 S.C. 534; 64 S.C. 413; 23 S.C. 148.
Mr. L. Marion Gressette, for respondent, cites: Policy is personal contract between insurer and insured: 48 S.C. 195; 26 S.E., 323; 26 S.C. 505; 23 S.E., 490; 31 S.C. 91; 9 S.E., 973; 50 S.C. 514; 27 S.E., 952; 39 S.C. 298; 17 S.E., 678; 160 S.E., 460; 26 R.C.L., 427; 61 C.J., 1291.
January 9, 1935.
The opinion of the Court was delivered by
The decree of his Honor, Circuit Judge Oxner, is satisfactory to the Court and is hereby adopted as the opinion of this Court. The decree which will be reported is affirmed.