52 S.C. 236 | S.C. | 1898
Lead Opinion
The opinion of the Court was delivered by
The complaint in this case is for foreclosure of a mortgage, recorded August 16th, 1892, executed July 30th, 1892, by defendant, Peterkin, to plaintiff on a tract of 5,000 acres in the Congaree River swamp, in Rich-land County. Ross S. McKenzie was made a party defendant, under allegation that he “had, or claimed to have, some interest in or lien upon the mortgaged premises * * * that arose subsequent to the lien- of the plaintiff’s mortgage.” McKenzie, in his original answer, set up (1) a general denial; (2) title in himself to 627 acres of said tract, under
We are asked by appellant, McKenzie, to reverse this order, on exceptions raising the following questions: (1) Should the complaint have been dismissed as to McKenzie? (2) Was it error to order an issue? (3) Was it error to require McKenzie to be actor in such issue? (4) Was the issue ordered in proper form?
As to the second question. It is now neither necessary nor proper to frame an issue out of chancery to be submitted to a jury on an issue of title. The proper practice,
The question as to the form of the issue as framed, becomes immaterial under the views already announced.
The order appealed from is reversed.
Dissenting Opinion
dissenting. While I concur in the conclusion that there was error in the order framing issues out of chancery in a case like this, as is fully shown by the cases cited in the opinion of Mr. Justice Jones, I am not prepared to assent to his conclusion, that the plaintiff should be the actor upon the trial of the issue presented by the affirmative defense, set up by the appellant in his answer. In none of the cases cited is the question as to who should be the actor considered or decided, except the cases of Reams v. Spann, 28 S. C., 530, and Carrigan v. Evans, 31 S. C., 262, where it was held that the plaintiffs should be the actors; and, as I think, very properly so held, under the pleadings in those cases; for in Reams v. Spann, the plaintiffs themselves, in their complaint, presented the issue of title, and, of course, the burden of establishing their title was on them. In the opening sentence of the opinion in that case, Mr. Justice McGowan uses this language: “This was an action to recover real estate, and, incidentally thereto, to partition the same;” and again he says: “The plaintiffs * * * brought the action for the double purpose of first recovering the land from the McRaes, and then having it partitioned among themselves or sold;” and, in such an action, the plaintiffs would, necessarily, be required to establish their title. In Carrigan v. Evans, the plaintiff, together with one Pollock, had bought the land at a sale for foreclosure of a mortgage given by Mrs. Blue to said Carrigan, and then the plaintiff instituted the action against his copurchaser, Pollock, for partition, making Evans, the trustee of Mrs. Blue, a party defendant. Evans, who had not been made a party to the action for foreclosure, and
I suppose, however, that the main reliance of appellant is upon the allegations contained in the 4th paragraph of his amended answer; but these allegations are singularly indefinite and somewhat inconsistent. He first says that he “is now in possession of the 627 acres,” and was in such “possession long prior to the commencement of this action,” and that his possession and title is derived from sources different from and independent of the mortgagor; but that is not saying that he obtained either title or possessionpidor to the execution of the mortgage, for the mortgage was executed in July, 1892, and this action was commenced four years afterwards, in August, 1896. It is true, that in the same paragraph he proceeds to allege, “that long prior to the date of said mortgage, this defendant, his ancestors, predecessors and grantors, were seized and possessed of said tract of land, claiming and holding the same adversely to the whole world;” and that such possession had been “both before and after the time wlien said plaintiff and the said Peterkin claim to have acquired title thereto.” It seems to me that these allegations are altogether insufficient to show that the appellant acquired either title or possession prior to the execution of the mortgage. Indeed, I think it would be impossible to ascertain, from any of the allegations in the answer, either how or when the appellants claim to have acquired title or possession; and that the only definite allegation therein contained is that he acquired title from Sheriff
While, therefore, I concur in the conclusion that there was no error on the part of the Circuit Judge in refusing to dismiss the complaiut, but that there was error in framing issues out of chancery to try the question of title set up by appellant’s answer, I cannot concur in the conclusion that, when such issue is to be tried, the plaintiff should be the actor. The true view of the case, in my judgment, is that the action, as originally presented, was one of purely equitable cognizance, to which appellant set up a legal defense, as he had a right to do under the Code, and that the two issues should be tried under the pleadings — the one on the law side of the Court and the other on the equity side of the Court, as indicated in Adickes v. Lowry, 12 S. C., 108, and McGee v. Hall, 23 S. C., 392. On the trial of the legal issue, which should be tried by a jury unless that mode of trial is waived, set up by appellant’s affirmative defense, the appellant should be the actor, but in the trial of the equitable issue, the plaintiff should be the actor.