49 S.C. 230 | S.C. | 1897
Lead Opinion
The opinion of the Court was delivered by
The plaintiff commenced his action against the defendant in the Court of Common Pleas for Oconee County, in this State, on the 8th day of February, A. D. 1895, on the equity side of the Court, for the recision of a contract made with the defendant on the 19th day of November, 1894. The cause came on to be heard before his Honor, Judge Benet, at the October, 1895, term of said Court, upon the pleadings and testimony taken before the master for that (Oconee) county, and thereafter a decree was pronounced granting the relief the plaintiff prayed for. Thereupon the defendant appealed to this Court. Let the decree of the Circuit Judge and the exceptions thereto be incorporated in the report of the case.
A brief statement of the facts may be necessary to a proper understanding of the appeal. The plaintiff operates a saw mill, and at the time of the contract (19th November, 1894,) lived at a different point of Oconee County from where the lands of the defendant were located in that county.
This being my conclusion, concurred in by Mr. Justice Jones, although not concurred in by the other two Justices, the effect is that the judgment of the Circuit Court is modified in accordance with the views hereinbefore announced by me. It is accordingly so adjudged.
Dissenting Opinion
dissenting. The action in this case was brought to cancel an agreement in writing, under seal, entered into by the plaintiff and defendant on the 19th day of November, 1894. Its terms show that the agreement was for the sale by the defendant to the plaintiff of all the pine timber of certain specified dimensions “on that tract or parcel of land belonging to said McAlister, situate in Oconee County, South Carolina, containing 369 acres, more or less, and known as the Gibson tract, and adjoining lands of Wickliffe and others,” at the price of $1,000, payable in three equal instalments, on the first days of January, April, and July, 1895, respectively.
The action is based upon the allegation that there was a mutual mistake of fact as to the lines and boundaries of the tract of land referred to in the agreement. Of course, the burden of proof is upon the plaintiff to show such alleged mistake, and this he must do by clear and convincing
I think, therefore, that the judgment of the Circuit Court should be reversed, and the complaint dismissed.
Concurrence Opinion
I concur in the dissenting opinion of Mr. Chief Justice Mclver, as the testimony of the plaintiff shows that he believed the boundaries had not been correctly stated before he paid the first note that fell due, and even before he signed the notes.