57 S.E. 531 | S.C. | 1907
Lead Opinion
February 9, 1907. The opinion of the Court was delivered by *10 This is an appeal from an order of reference. When the plaintiff made a motion for an order of reference, the defendants resisted the same, on the ground that the action was, in reality, to recover possession of real property, and that the case should, therefore, be transferred to calendar 1 for a trial by jury. His Honor, the Circuit Judge, granted an order of reference to the master to report the testimony, whereupon the defendants appealed.
The order in effect denied the defendants a trial by jury, and the sole question is whether this was error.
Our construction of the complaint is, that it only sets forth an action to recover the possession of real property. It does not seek reformation of the lease, but on the contrary states that the defendants acquiesced in the insertion of the clause therein, alleged to have been omitted by an oversight. The allegations of the complaint show, that there is no obstacle in the way of the plaintiff's recovery of the land, and that it has an adequate remedy at law.
It is the judgment of this Court that the judgment of the Circuit Court be reversed.
MR. CHIEF JUSTICE POPE concurs in this opinion.
Concurrence Opinion
I concur in the conclusion stated by Mr. Justice Gary. The plaintiff seeks first, the recovery of the possession of the lot described in the lease, under the allegations that after the lease was executed, the changes made by the plaintiff, giving it the right to remove the bank fixtures at the termination of the lease, were acquiesced in and ratified by those defendants who were parties thereto. This, if true, would make the lease, as corrected by the plaintiff, binding on all parties. Therefore, if the plaintiff proves this allegation it will be entitled to recover the land and hold it under the terms of the lease as corrected until the end of the term. This gives character to the suit as an action for the recovery of real estate on the *11 law side of the Court, which the defendants have a right to have tried by a jury on calendar No. 1.
It is true, the plaintiff asks that if it should fail to recover possession under the lease, as changed by it, then that the Court, in the exercise of its equity powers, will reform the lease so as to correspond with the understanding of the parties, and decree specific performance of it by requiring delivery of the property under the lease so reformed. The consideration of this relief or reformation, which only the Court of equity can give, must, however, under the terms of the complaint itself, remain in abeyance until the right of the plaintiff to possession, without the necessity of reformation, is tried. Should the plaintiff succeed in recovering possession on the lease as it stands after the alleged correction, there would be no need for the equitable relief of reformation in the terms contended for by the plaintiff, or for the specific performance of the contract so reformed by the delivery of possession thereunder. If, however, the plaintiff shall fail to make good its allegations as to the acquiescence in, or the ratification of the changed or corrected lease by the defendants, the owners of the property, in that event, it would still be entitled to try the equitable issues, and if successful obtain a decree of reformation and specific performance. In short, since by the complaint itself, it clearly appears that under its allegations the plaintiff may recover a judgment for the possession of the lot, and that this would be full and adequate relief, and that the equitable relief is only sought as an alternative in case the action for possession fails, it seems to follow inevitably, that the legal issue of the right of possession under the lease as it stands, after the changes made by the plaintiff, should be first tried, and that the equitable issues of reformation and specific performance should be postponed: for if the plaintiff is successful on the legal issue, the equitable issues will entirely disappear.
This conclusion is in accord with the views expressed inAlston v. Limehouse,
MR. JUSTICE JONES concurs in this opinion.
