45 S.C. 283 | S.C. | 1895
The opinion of the Court was delivered by
This is an action for betterments, which was heard on the circuit by Judge Buchanan and a jury, at the January term, 1895, of the Court of Common Pleas for Abbeville County. For a proper understanding it is necessary to review the facts upon which the claim is founded. One F. M. Pope, being indebted to C. Aultman & Co. and others in a large amount, mortgaged a house and lot in the town of Ninety-Six to one G. W. Connor, on the 1st day of February, 1884. On the 7th day of December, 1886, the said Pope conveyed the premises to the said Connor; on the 26th day of October, 1887, Connor conveyed to Mrs. Elizabeth M. Pope, wife of said F. M. Pope, and on the same day Mrs. Pope conveyed the premises to Mrs. Mattie E. Utsey, who went into possession and made improvements thereon. On the 24th day of January, 1888, Mrs. Utsey mortgaged the premises to A. J. Salinas' & Sons, which mortgage was sued to judgment for foreclosure at the October term, 1891, of the Court of Common Pleas for Abbeville County. On the 6th day of January, 1892, the master sold the premises under said judgment for foreclosure, and A. J. Salinas & Sons became the purchasers, and received the master’s deed of conveyance. Pending the litigation, Mrs. Utsey died in March, 1891, and her heirs at law were made parties to the action. In the meantime, C. Aultman & Co. had sued to judgment their claims against the said F. M. Pope; execution was issued and levied on the said house and lot, as the property of the said F. M. Pope. The premises were sold in September, 1889, C. Aultman & Co. becoming the purchasers, and receiving sheriff’s title. After this, C. Aultman & Co., alleging fraud both actual and constructive, brought an action to set aside the deeds executed by Pope to Connor,' by Connor to Mrs. Pope, and by Mrs. Pope to Mrs. Utsey. During litigation, A. J. Salinas & Sons having the master’s deed and being in possession of said house and lot, intervened by petition, and were made parties defendant to the action. In their answer as defendants to suit they set up
Before the cause went to trial, the defendants, C. Aultman & Co., filed a demurrer to the complaint, “on the ground that the complaint does not state facts sufficient to constitute a cause of action.” After argument, the Circuit Judge overruled the demurrer, and the defendants filed the following exceptions: “1st. Because it was error in the presiding Judge ro hold that the complaint states facts sufficient to constitute a cause of action, when it fails to state that the plaintiffs put any improvements or betterments on the land recovered from them. 2d. Because it appears on the face of the complaint that the plaintiff did not purchase the land from any one having title to said property, but, on the contrary, purchased the same on a master’s sale under a mortgage given to other parties, and it was error not to hold that the complaint did not state facts sufficient to constitute a cause of action. 3d. Because the betterment law makes no provision for any one to recover betterments except a defendant who may have made improvements in good faith himself, and it was error in the presiding Judge to hold that the plaintiff herein could under any circumstances recover betterments.”
An examination shows that exception 2 is based upon a misconception of the complaint, and is overruled, there being no allegation in the complaint in support of the exception.
When the plaintiff had concluded his testimony, the defendant moved for an order of nonsuit, which the Circuit Judge granted, “it appearing to the Court that there is a total failure of testimony to sustain the case.” The defendant gave notice that he would move to sustain the order of nonsuit on the following additional grounds: “1st. Because the plaintiffs failed to prove that they had any title whatever to the property upon which they claim betterments. 2d. Because the plaintiffs failed to prove that at the time they bid in the land at the master’s sale, they supposed they were getting a title in fee to said land. 3d. Because the plaintiffs failed to prove that Mrs. Utsey, from whom they claim the land, supposed at the time she erected the improvements that she had a good title to said land. 4th.' Because the plaintiffs failed to prove that Mrs. Utsey ever had any title to said land. 5th. Because there was an entire failure of testimony to show the value of said lands without the improvements put on them, and the order must be sustained on that ground. 6th. Because the plaintiffs failed
The judgment of this Court is, that the order of nonsuit appealed from be reversed, and that the case be remanded to the Circuit Court for trial.