69 S. E. 468, Ann. Cas. 1912a, 924, and the authorities cited in the principal case, and the note reviewing the authorities.

There is no exception to the exclusion of the testimony of Hendrix with regard to his transactions with the plaintiff, which might or might not have shown the want or failure

of consideration of the note and mortgage; therefore, 5 the judgment cannot be assailed on that ground; but there was enough in his testimony and in that of defendant to warrant a reasonable inference that, at the date of the contract sued on, the amount called for on the face of the note and mortgage was not due and owing by the mortgagor; and that some of the property described in the mortgage was not then in existence. True, the testimony upon these points is very vague and indefinite, and therefore unsatisfactory and inconclusive, and we do not intimate any opinion as to whether the inferences suggested should or should not have been drawn from it, but, as it was susceptible of those inferences, the Court erred in directing the verdict. Judgment reversed.

9588

SMITH v. FAUST ET AL.

(92 S. E. 24.)

FRAUDULENT CONVEYANCES--BURDEN OF PROOF-MORTGAGE OF FRAUDULENT GRANTEE BONA FIDE MORTGAGEE.-The burden is on plaintiff suing to foreclose a mortgage executed by one to whom property had been conveyed in fraud of the grantor's creditors to prove, as against the creditors, that she was a bona fide mortgagee without notice of the fraud.

Before PRINCE, J., Hampton, March, 1916. Reversed.

Action by Maud M. Smith, as administratrix, against I. P. Faust and another, as receivers. Judgment for plaintiff, and defendants appeal.

Opinion of the Court.

[ 107 S. C. Mr. E. F. Warren, for appellants, cites: 26 S. C. 506; 6 S. C. 159; 1 Strob. Eq. 103; 5 S. C. 90; 20 Cyc. 446; 103 Iowa 378; 64 Md. 513; 64 Ala. 392; 31 Ala. 149; 135 Ill. 92; 56 Mo. App. 325; 64 N. H. 99; 63 N. H. 577; 16 N. H. 168; 122 N. C. 587; 84 N. C. 434; 24 Cent. Dig. Tit. Fraudulent Conveyances 63; 20 Cyc. 655; 119 Ga. 793; 20 Cyc. 763; 7 Colo. App. 483; 73 Ga. 716; 71 Iowa 333; 42 Iowa 84; 119 Mich. 592; 98 Mich. 70; 43 Oreg. 260; 53 Wis. 410; 24 Cent. Dig. Tit. Fraudulent Conveyances 819.

Mr. J. W. Vincent, for respondent, cites: As to reversable error: 68 S. C. 462; 63 S. C. 569. As to legal conclusions: 58 S. C. 56; 10 S. E. —; 10 N. E. 306. As to fraud in deed: 36 Cal. 223; 64 S. W. 266; 69 Ark. 541; 44 S. W. Innocent pur

540; Bump. Fraud. Con. 489; 7 S. E. 590. chaser: 81 S. E. 158.

February 8, 1917.

The opinion of the Court was delivered by MR. JUSTICE GAGE.

Ginn was owner of certain town lots; Ginn conveyed by deed to Faust; Faust conveyed by deed to Smith; the deed last named was in fact made to secure a debt, and was, therefore, a mortgage; the deed first named was made by Ginn without consideration with a fraudulent intent, and to avoid the payment of Ginn's debt. These facts were alleged in the pleadings, and their truth was admitted before the master. The master made his report upon these facts, without swearing a witness. The master found in favor of Smith's mortgage, and against the creditors of Ginn, and upon the ground, there was no plea and no proof that Smith had notice of what Ginn and Faust had done. The Circuit Court, in a pro forma order, confirmed the report, and the creditors here appealed.

The single issue is: When it was admitted that Ginn's conveyance to Faust was without consideration and fraudulent, was the burden thus shifted upon Smith to prove that he was a bona fide mortgage creditor, that he became so after the deed from Ginn to Faust was made, and that he had no notice of the character of that deed? We are of the opinion that under the circumstances which we have stated, Smith was bound to prove that he was a bona fide mortgage creditor. The deed from Ginn to Faust was voidable, but not against Smith if Smith was a bona fide subsequent creditor. Suppose Ginn's creditors had brought the action to set aside the deed from Ginn and Faust, and the mortgage deed from Faust to Smith; in that event Smith must have alleged and proved his bona fides to save his right.

The case is not altered because of the circumstance that Smith had brought action to foreclose the mortgage, and made Ginn's creditors parties. And especially must Smith prove his case, because it appears that Ginn's creditors have actual possession and enjoyment of the lots. See 2 Pomeroy's Eq., sections 777-785.

The decree below is reversed, and the cause is remanded to the Circuit Court to ascertain the truth of the matter according to the principles announced herein.

MR. JUSTICE HYDRICK was absent at the hearing, and did not take part in this decision.

9655

MCCORMAC ET AL. v. EVANS ET AL.

(92 S. E. 19.)

1. SCHOOLS AND SCHOOL DISTRICTS-USE OF PROPERTY-SUBSTITUTION.— Where a schoolhouse was erected by a fund raised by a subscription, which provided that the building should be used as a school so long as that was desired by any of the subscribers and thereafter, with the consent of all the parties, an old church building was substituted

Syllabi.

[107 S. C. for the schoolhouse, under an agreement that it should be used for the school, the rights of the subscribers are the same with reference to that building as if it were the original schoolhouse built under the agreement.

2. DEDICATION - USE OF PROPERTY PRESUMPTIONS. Where a building erected for use as a school was used only for that purpose, no length of such use would raise a presumption of a general dedication or a waiver by the subscribers of their right to restrict the use to the original dedication.

3. ESTOPPEL-FAILURE TO OBJECT NECESSITY OF RELIANCE. -The fact that one of the subscribers to a fund for a school building was present at a meeting at which a resolution to turn the building over to another use was adopted, and made no objection thereto, does not estop him from thereafter objecting, where there was no evidence that any one relied on his silence or was misled by it, or it appeared that the others knew before the meeting that he refused to consent in proposed action.

4. ESTOPPEL-EFFECT-PERSONS ESTOPPED.--In a suit by two subscribers to a school building fund to restrain a proposed use of the building for a different purpose, estoppel of one plaintiff's right to object does not defeat the right of the other plaintiff to the relief.

5. INJUNCTION-ADEQUATE REMEDY AT LAW-USE OF PROPERTY.-Subscribers to a school building fund are entitled to injunction to restrain the proposed removal of the building, though the trustees and the school district are solvent, since it would be impossible to prove or estimate the damages caused by the loss of plaintiff's right to have a school maintained at that place, and, therefore, the remedy at law is inadequate.

6. INJUNCTION-SUBJECT OF RELIEF DESCRIPTION OF PROPERTY.-Wrongful acts resulting in the destruction of plaintiff's property or any interference with his use of it may be prevented by injunction.

7. INJUNCTION-USE OF PROPERty-Defenses.-The right of subscribers to a school building fund to prevent the demolition and removal of the building cannot be denied because they have adjoining lands on which they can build a schoolhouse.

Before SHIPP, J., Dillon, May, 1916. Reversed.

Suit by E. A. McCormac and another against W. W. Evans and others. Judgment for defendants, and plaintiffs appeal.

FOOTNOTE. As to what causes reverter after dedication, see notes in 1 A. & E. Ann. Cas. 455, 11 L. R. A. (N. S.) 589, 35 L. R. A. (N. S.) 603 to 606, 44 L. R. A. (N. S.) 1220.

The statement of facts in the Circuit decree is recited in the dissenting opinion of the CHIEF JUSTICE, and referred in the opinion of the Court.

Messrs. P. B. Sellers and Townsend, Rogers & McLaurin, and J. W. Johnson, for appellants.

Messrs. Sellers & Johnson cite: As to distinction between legal and equitable causes of action: Pom. Code Rem. (3d ed.), secs. 521, 522, 523. This action is equitable: 27 S. C. 77; 46 S. C. 144; 1 Pom. Eq. Juris. (3d ed.), sec. 130. There can be no estoppel by conduct or concealment on the part of plaintiffs in this case, as the school district authorities were not induced to do something to their injury or prejudice: 16 Cyc. 276c, 726, 4; 42 S. C. 348; Bigelow on Estoppel (3d ed.) 434; 13 S. C. 29; 19 S. C. 201; 67 S. S. 456; 53 S. C. 315; 39 S. C. 203; 32 S. C. 511; 30 S. C. 612; 28 S. C. 38; 15 S. C. 611; 16 Cyc. 742, 744; 57 S. C. 507; 27 S. C. 53; 13 S. C. 371 and 35. There has been no dedication by plaintiffs: 4 Fed. 161; 9 A. & E. Enc. of L. (2d ed.) 23, 28, 29, 30, 31, 37, 68, 78. Retention of jurisdiction to award complete relief: Eaton Eq. 39.

Messrs. Gibson & Muller, for respondents, cite: As to power of trustees: Civil Code, secs. 1753, 1755, 1761. Estoppel: 13 Cyc. 454, 478. Complete legal remedy: Joyce Injunctions, sec. 26; 78 S. C. 575; 44 S. C. 256.

March 26, 1917.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

The facts are fully stated in the opinion of the Circuit Court. It appears that, by consent of all parties interested,