Land Mortgage &c. Co. v. Williams

35 S.C. 367 | S.C. | 1892

The opinion of the court was delivered by

Mr. Justice Pope.

The defendant, on the tenth day of April, 1886, at Brunson, in this State, made his note, whereby he promised to pay the plaintiff the sum of three thousand and eight hundred dollars, with interest, at periods fixed therein, and to secure the payment of the aforesaid sum he executed a mortgage of a tract of land containing one thousand acres, situate in Hampton County, in this State. Having made default in thep payment of this sum of money, on the 5th day of May, 1890, the plaintiff brought an action against the defendant in the Court of Common Pleas for Hampton County, to recover judgment against the defendant for the money so due and owing, and also to sell the tract of land embraced in the mortgage, the proceeds of such sale to be applied to the satisfaction of such debt and costs. The defendant answered the complaint as to the merits thereof. ■

The action came on before Judge Izlar for trial at the February term, 1891, of the Court of Common Pleas for Hampton County, and his decree in favor of the plaintiffs was rendered on the 29th day of April, 1891, from which the defendant appeals upon one ground, namely : Because his honor, Judge Izlar, erred in holding that the plaintiff’s capacity to sue was not in issue, and in rendering judgment for the plaintiffs.

It will not be necessary, in order to see the point made by appellants, to do more than reproduce the paragraphs of the complaint and answer, respectively, that raise the issue. Paragraph 1 of plaintiffs’ complaint is as follows: “1. That the plaintiffs are a corporation duly chartered under the laws of the kingdom of Great Britain, doing business in the State of South Car-olina, and are entitled to make the contract hereinafter mentioned.” Paragraph 1 of defendant’s answer is as follows : “1. As to paragraph one of said complaint, the defendant has no personal knowledge of the facts therein stated, or information of the truth thereof sufficient to form a belief; therefore denies the same and demands strict proof thereof.” The first paragraph of the complaint contains three allegations — first, the corporate existence of the plaintiff; second, that such corporation is doing business in this State; and third, that it was entitled to make the contract 'sued on. The first paragraph of the answer denies these allegations as not having any personal knowledge thereof or any information of the truth thereof sufficient to form a belief.

1 The corporate existence of the plaintiff alone enabled it to have the legal capacity to sue, and there being two other allegations of fact in the first paragraph of the complaint, the denial thereof by the defendant was a general denial. It must be apparent to every one that the appeal here renders necessary a construction by the court of sections 165, 166, 168, 169, and 170 of our Code, in order to ascertain if a general denial in the answer will enable the defendant to put in issue the legal capacity of the plaintiff to sue. This court has repeatedly construed these sections for that very purpose, and has uniformly decided that such an issue is not made by a general denial, but that, in order for the defendant to put the plaintiff on the trial to proof of its legal capacity to sue, the same must result from a specific denial of such fact. Commercial Insurance and Banking Company v. Turner, 8 S. C., 111; Steamship Company v. Rodgers, 21 Id., 33; Palmetto Lumber Company v. Risley, 25 Id., 316 ; and American &c. Company v. Hill, 27 Id., 165. It follows, therefore, that the appeal must be dismissed.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.