57 S.C. 267 | S.C. | 1900
The opinion of the Court was delivered by
The plaintiff, as purchaser under the vendee, B. E. Perry, brings this action for specific performance of a contract for the sale of land against the vendor, Marchbanks, and his tenant, Kirkendoll. The complaint describes the land alleged to be the subject of the contract by metes and bounds. The answer denies any contract as to the tract described in the complaint, but admits a contract to convey the tract described in the answer, which is a part of the tract mentioned in the complaint. The real point of controversy was as to the correct location of the northern boundary, which, if located according to the plaintiff’s contention, would enclose fifty-one acres, and if located according to defendant’s contention, would enclose only twenty acres. Besides this, there is an issue as to damages claimed.
The master, to whom the issues were referred, made the following report: “During the year 1887, B. E. Perry purchased of the defendant, Peter C. Marchbanks, forty acres of unimproved land,, situated on the north side of Paris Mountain, in the county (of Greenville) and State aforesaid. Perry paid Marchbanks for this land and went into possession, but never received a deed for the same. No deed was executed at the time of the purchase, because of the fact that all the boundaries of the land were not then definitely known. Perry swears that he paid $400 for the property; Marchbanks testifies that he only paid $357.83 for it. Whether the greater or less price was paid, is of little consequence in determining the issues here joined, the smaller sum being full value for the property. Immediately after going into possession of this property, Perry built two houses thereon, and brought into cultivation a considerable
Both sides excepted to the master’s report. The case was heard by his Honor, O. W. Buchanan, at the December, 1897, term of the Court of Common Pleas for said county, who on the 13th day of January, 1898, filed the following
The defendants filed exceptions to this order of Judge Buchanan, assigning error: (I) in not dismissing the complaint because the contract alleged was not established; (2) in decreeing a conveyance for land outside of the boundaries admitted in defendant’s answer; (3) in finding as a matter of fact that defendant agreed that if the forty acre tract did not contain full forty acres, that the defendant would make up the deficiency out of other lands; (4) in enforcing such promise, if made, in this action; (5) in holding defendant estopped from denying plaintiff’s title to the land outside of the boundaries sold, as claimed by the defendants; (6) in
Pursuant to the order of Judge Buchanan, the parties each selected a surveyor, and on a day appointed, the parties with the surveyors met on the land and a survey was made, and on April 4th, 1898, said surveyors filed their return with a plat. The case was thereafter heard by Judge Aldrich. The plaintiff claiming that the return and plat of the surveyors was in accordance with the order of Judge Buchanan, and without offering other testimony in reference thereto, asked for a final decree in accordance with Judge Buchanan’s order. Defendants contended that before Judge Aldrich could pass such a decree, that the whole case should be heard anew, or at least that the plaintiff be required to examine witnesses to ascertain the correctness of the said survey.. Defendants also contended that the second survey excluded about thirteen acres which the first survey allowed plaintiff; that the master in estimating damages suffered by plaintiff had included said thirteen acres, and defendant should be allowed to examine witnesses to show what part of said damages were for damages to said thirteen acres, and, therefore, should be excluded from the damages awarded to plaintiff. These objections were overruled, and Judge Aldrich made decree for specific performance, which with the exceptions thereto may be seen in the official report. The foregoing statement is somewhat lengthy and tedious, but it will serve to make clear the application of the brief remarks we shall make on the questions involved.
2. The order of Judge Buchanan, confirming the matter of fact and conclusions of law reported by the master, ordering a survey and plat covering the twenty acres, tract A, as to which there was no dispute, with twenty acres on plat B, embracing the part containing the buildings and clearings by Perry, and further ordering that upon the coming in of said report by the surveyors, a conveyance be required to be executed by Marchbanks to the plaintiff according to the boundaries reported, left nothing for Judge Aldrich to do but ascertain whether “from the showing established by the report of the surveyors a different disposition should be made of this matter.” Subject to this condition only, the report of the matter was confirmed. The “final disposition of the matter,” which was to await the coming in of the surveyor’s report, was a formal order carrying his judgment into effect, when the northern boundary of the land contracted for was platted in accordance with the principle of location reported by the master and confirmed by Judge Buchanan. The surveyors did nothing but make certain by course and distance a boundary which the Court by its decree upon the evidence made capable of being made certain. All boundaries but one being established, it was a mere matter of calculation to so close the plat as to include the twenty acres whereon were situated plaintiff’s cleared land and building. If, therefore, there was no error in conclusions of the master which were confirmed by Judge Buchanan, we do not think any error can be imputed to the order of Judge Aldrich, which merely carried out such conclusion.
The judgment of the Circuit Court, in so far as it decrees specific performance by the execution of the deed for the premises therein described, is affirmed, but, in so far as judg