| S.C. | Apr 19, 1906
April 19, 1906. The opinion of the Court was delivered by This action was commenced on the 13th of October, 1903, by A.A. Brown, plaintiff, against Ella F. Jones and Evelyn M. Brown, defendants. The plaintiff went into bankruptcy, and A.H. Williams, as his assignee in bankruptcy, was substituted as plaintiff, and at the instance of Ella F. Jones, B. Wallace Jones was made a defendant. The object of the action was the partition of 400 acres of land amongst the plaintiff A.A. Brown and the defendants, according to their respective rights therein. The following are the pleadings:
"II. That the plaintiff is entitled to an estate of twenty-seven undivided fortieth parts (27-40) in the fee of said premises.
"III. That the defendant Ella F. Jones is entitled to an estate of five undivided fortieth parts (8-40) in the fee of said premises.
"IV. That the defendant Evelyn M. Brown is entitled to an estate of five undivided fortieth parts (5-40) in the fee of said premises; and the said Evelyn M. Brown is an infant over the age of fourteen years, to wit: fifteen years of age.
"V. That the plaintiff is desirous of having said premises partitioned and divided according to the respective interests of the parties hereto; and that the plaintiff and defendants own no other lands in this State as tenants in common.
"VI. That a reasonably and proper fee should be allowed to the plaintiff's attorney.
"Wherefore, plaintiff demands judgment for a partition and division of said premises according to the respective *268 rights of the plaintiff and defendants; or if a division can not be had without material injury to said rights, then for a sale of said premises and a division of the proceeds according to said rights. For a reasonable fee to plaintiff's attorney, and for such other and further relief as to the Court may seem just and proper."
The following are the answers of the defendants:
Answer of Ella F. Jones.
"I. That as to the allegations contained in paragraph I. of said complaint, she admits that she is interested as a tenant in common in the parcel of land described therein, but she has no knowledge sufficient to form a belief as to the interests of the plaintiff A.A. Brown, or the defendant Evelyn M. Brown, and, therefore, denies such of the allegations of said paragraph I. as allege that said A.A. Brown and Evelyn M. Brown are seized in fee of any interest therein.
"II. That as to the allegations of paragraph II. of said complaint, this defendant denies same.
"III. That as to the allegations of paragraph III. of said complaint, this defendant admits that she is entitled to an estate in the property described in the complaint, but alleges that her interest is far in excess of eight-fortieths (8-40) thereof.
"IV. That as to the allegations of paragraph IV. and V. of said complaint, this defendant has no knowledge or information sufficient to form a belief as to the truth thereof.
"V. That as to the allegations of paragraph VI. of said complaint, this defendant denies same.
"VI. That the plaintiff A.A. Brown has for the past four years been in exclusive possession of the land described in the complaint, collecting and appropriating to his own use the rents and profits thereof.
"Further answering, and by way of affirmative defense, the defendant Ella F. Jones alleges:
"I. That heretofore one H.L. Brown executed and delivered *269 his certain promissory note, in writing, bearing the date of 5th of January, 1887, and thereby promised to pay, sixty days after date, to the order of E.H. Williams, $250, for value received.
"II. That in order to secure the payments of said note, the said H.L. Brown, on or about the 5th day of January, 1887, executed and delivered to said E.H. Williams his certain deed, and thereby conveyed, by way of mortgage, to said E.H. Williams the following described real property to wit: all of his right, title and interest inland to one undivided fifth part of all that certain piece, parcel or tract of land lying, being and situate in the county of Williamsburg, State of South Carolina, containing 420 acres, more or less, bounded as follows: * * *
"III. That the tract of land described in the complaint is the same tract described in the mortgage above mentioned.
"IV. That on or about the fourth day of November, 1891, said mortgage was delivered to the registered of means conveyances for Williamsburg County, to be by him entered on record and was recorded in book `X,' at page 318.
"V. That thereafter, to wit: on or about the 16th day of June, 1892, said E.H. Williams, for value, assigned and transferred the note and mortgage above described to B. Pressley Barron.
"VI. That thereafter, to wit: on or about the 24th day of February, 1897, said B. Pressley Barron, for value, transferred, set over and assigned said note and mortgage to Ella F. Jones, the defendant herein, who is now the owner and holder thereof.
"VII. That the condition of said note and mortgage has been broken, and there is now due and remaining unpaid thereon the sum of $250, with interest from the 5th of March, 1887, at seven per cent, per annum.
"For a further defense, this defendant alleges, on information and belief:
"That one B. Wallace Jones is owner of and entitled to an interest in the property described in the complaint, and *270 that a complete determination of the issues between the plaintiff and the defendant Ella F. Jones cannot be had, nor can a complete partition be made without bringing in as a party to this proceeding, the said B. Wallace Jones.
"Wherefore, this defendant prays:
"I. That said B. Wallace Jones may be brought in as a party to this proceeding.
"II. That the mortgage above set forth may be foreclosed, the interest of H.L. Brown in the property described in the complaint sold, and the proceeds of the sale thereof applied to the payment of the note of said H.L. Brown.
"III. That a partition of the premises described in the complaint may be had, according to the respective rights of the parties in interest.
"IV. And for such other and further relief as may be just."
Answer of B. Wallace Jones, having been first made a party by order of this Court:
"For a first cause of defense:
"He denies each and every allegation in said complaint contained.
"For a second cause of defense:
"I. That he is entitled to an undivided interest in the lands described in paragraph I. of the complaint, or a portion thereof.
"II. That he denies the allegations of paragraph II. of said complaint.
"III. That he is informed and believes that the defendant Ella F. Jones is entitles to an interest in the land described in the complaint, but that said interest is not property stated in paragraph III. thereof.
"IV. That he has no knowledge or information sufficient to from a belief as to the truth of the allegations of paragraph IV. of said complaint.
"V. That he admits the allegations contained in paragraph V. of said complaint. *271
"VI. That he denies the allegations contained in paragraph VI. of said complaint.
"VII. That the plaintiff A.A. Brown has heretofore been in exclusive possession of a considerable portion of the land described in the complaint, collecting and appropriating to his own use the rents and profits thereof.
"Further answering the complaint herein, and by way of affirmative defense, this defendant alleges:
"I. That heretofore, to wit: on or about the 14th day of May, 1889, one John A. Kelley recovered in the Court of common pleas for the county of Williamsburg a judgment against one H.L. Brown, and an execution was duly issued pursuant thereto.
"II. That pursuant to that execution the sheriff of Willimsburg County levied upon the interest of said H.L. Brown in the tract of land described in the complaint in this action and duly advertised and sold same at public auction according to law, at Kingstree, on or about the 4th day of November, 1889.
"III. That at said sale the interest of the said H.L. Brown in said land was sold, and one M.A. Thomas became the purchaser thereof, and took title thereto, which title is recorded in the office of the clerk of court of Williamsburg County, in volume U, page 239.
"IV. That though the title above mentioned was taken in the name of M.A. Thomas, the beneficial interest in the property therein convened was taken and accepted by said M.A. Thomas in trust for this defendant, and said M.A. Thomas continued to hold the interest so acquired by him for the benefit of this defendant.
"V. That thereafter the said M.A. Thomas undertook to sell and convey the interest acquired by him, as above stated, to the plaintiff, A.A. Brown, as will appear by deed recorded in the office of the clerk of Williamsburg County, in book X, at page 432.
"VI. That at the time of the conveyance by said M.A. Thomas to said A.A. Brown, said A.A. Brown was fully *272 advised and notified of the rights of this defendant in the lands thereby conveyed, and said A.A. Brown took title thereto, subject to all of the rights of this defendant therein.
"VII. That by reason of the conveyance to M.A. Thomas above described, and of the agreement of said M.A. Thomas to hold title to the property referred to, for the benefit of this defendant, of which agreement the plaintiff had full notice, this defendant is advised that he is entitled to all of the interest in the tract of land described in the complaint which was heretofore owned by said H.L. Brown.
"VIII. That this defendant is informed and believes that said M.A. Thomas undertook to sell and convey the interest acquired by him in the land described in the complaint on account of a claim which he held against this defendant, and this defendant is now willing and ready to settle any valid claim which the said M.A. Thomas has, for heretofore had, against him.
"Wherefore, this defendant prays that the property described in the complaints may be partitioned among the parties in interest, according to their respective rights; that the deed of M.A. Thomas to A.A. Brown may be set aside and declared full and void, and that the defendant may be adjudged the owner of such interest in said lands as were conveyed to said M.A. Thomas by the sheriff of Williamsburg County, as above stated, and for such other and further relief as may be just."
By consent order all the issues of fact were referred to L.W. Gilland, Esq., who made his reports, together with the testimony taken before him by the several parties in interest.
The following facts were agreed to by the attorneys of the respective parties and were embodied as agreed facts in the report by the said special referee Gilland.
"I. That the land described in the complaint comes from Williams Brown as a common source, and that this land was devised by the will of the said William Brown to W.J. *273 Brown, on terms stated in said will (will book `D' of probate court of Williamsburg County, containing the record of the will of William Brown, Sr., in evidence as `exhibit A').
"II. That W.J. Brown undertook to sell or convey the land involved in this suit to S.O. McCown by deed dated January 8th, 1859. and recorded October 16, 1890, in book `V,' page 10, and that the said S.O. McCown went into possession under this deed and remained in possession until December 6, 1886, when the interest of S.O. McCown in said property was sold to B. Wallace Jones. That W.J. Brown died in the meantime in 1882. (No question made as to the regularity of the sale and execution)
"III. That Leila, A. Bates, a daughter of W.J. Brown, conveyed her interest in the property in question to Holly L. Brown, her brother, by deed dated 1884, in evidence as exhibit `I'.
"IV. That Holly L. Brown mortgaged his undivided one-fifth interest in this property to E.H. Williams, to secure $250, by his note and mortgage bearing date January 5, 1887, recorded November 4, 1891, in book `X', page 318, and in evidence as exhibit `O.'
"V. That S.A. Brown mortgaged his undivided one-fifth interest in this property to E.H. Williams to secure a similar amount, the said mortgage bearing the same date and recorded on the same date as the mortgage from Holy L. Brown to E.H. Williams.
"VI. That J.A. Kelley recovered a judgment against Holly L. Brown on July 31, 1889, on a note dated November 3, 1885, to secure which note Holly L. Brown excepted a mortgage to J.A. Kelley, dated same date, and said mortgage was foreclosed and sold under power of sale in said mortgage. The proceeds of said sale were not sufficient to pay the note.
"VII. That under the execution issued pursuant to the J.A. Kelley judgment, the interest of Holly L. Brown was sold on November 4, 1889, and conveyed to M.A. Thomas, by sheriff's deed, in evidence as exhibit `K,' and recorded *274 in book `U,' page 239, and that at the time of the sale and previous thereto, W.C. Brown was either dead, or presumed to be dead, and his interest had been inherited by his brothers and sister, H.L. Brown, J. Hedley Brown and Leila A. Bates.
"VIII. That the suit of W.C. Brown et al. against B. Wallace Jones was commenced January 19, 1887, which resulted in a verdict in the following language, rendered October 3, 1891: `We find for the plaintiffs S.A. Brown and J. Hedley Brown, one undivided one-half of the land in dispute — no damages.' Roll 1 in evidence, including `exhibits B and C,' in evidence.
"IX. That in 1896, J. Hedley Brown died intestate, leaving as his only heirs Samuel A. Brown and Evelyn M. Brown, a daughter of Holly L. Brown.
"X. That Samuel A. Brown conveyed by deed all his interest in the property in question to A.A. Brown, December 17, 1897, which said deed was recorded in book `B,' page 229, and is in evidence as `exhibit M.'
"XI. That M.A. Thomas by his deed conveyed his interest in said land in question to A.A. Brown on November 15, 1899, which was recorded November 15, 1899, in book `X,' page 432, and is in evidence as `exhibit L.'
"XII. That under a foreclosure of the mortgage of S.A. Brown to E.H. Williams, one undivided one-fifth interest of S.A. Brown in this property was conveyed to Ella F. Jones.
"XIII. That Evelyn M. Brown is the owner of an undivided one-eighth interest in this property as heir of J. Hedley Brown. Also, that A.A. Brown is the owner of an undivided one-eighth interest in the property in question acquired by purchase from S.A. Brown, `exhibit M,' the said S.A. Brown having inherited this interest from his brother, J. Hedley Brown. Also, that A.A. Brown is the owner of an undivided one-twentieth interest in this property, acquired by purchase from S.A. Brown — this interest being the difference *275 between the entire interest of S.A. Brown and the undivided one-fifth interest mortgaged to E.H. Williams."
And further, as conclusions of fact, the referee finds:
"I. That the infant defendant Evelyn M. Brown is entitled to an undivided one-eighth interest in the property in question, inherited from her uncle, J. Hedley Brown, in 1896, and that the said infant is entitled to her proportionate share of the rents and profits during A.A. Brown's exclusive possession, to be offset by her proportionate share of the costs, of improvements made by the said A.A. Brown.
"II. That the defendant Ella F. Jones is entitled to an undivided one-fifth interest in the property in question, conveyed to her by deed dated January 7, 1903, under a sale by reason of a judgment in foreclosure of the mortgage of S.A. Brown to E.H. Williams and subsequently assigned to the said Ella F. Jones. And that the said defendant Ella F. Jones is entitled to her proportionate share of the rents and profits collected by A.A. Brown during the year 1903, which amounts to $184, to be offset by her proportionate share of the costs of improvements made by the said A.A. Brown during the year 1903, which amounts to $150, the cost of one tobacco barn completed, and that said Ella F. Jones is the owner and holder of the mortgage of Holly L. Brown to E.H. Williams, conveying an undivided one-fifth interest of the said Holly L. Brown, dated January 5th, 1887, and recorded November 4, 1891. On July 31, 1889, J.A. Kelley, recorded judgment against the said Holly L. Brown and his interest, which was then one undivided one-half, was sold under executions and this interest conveyed to M.A. Thomas. There was no testimony on the part of defendant Ella F. Jones given to show that notice of the existence of this mortgage was given, whereby the rights of any party to this action would be affected. Nor were any prior assigners of the said note and mortgage made parties to the action of J.A. Kelley v. Holly L. Brown, `exhibit J.'
"III. That A.A. Brown acquired an undivided seven-fortieths interest in this land by the deed of S.A. Brown *276 to A.A. Brown, dated December 17, 1897, `exhibit M,' and that if the deed of M.A. Thomas to A.A. Brown, dated November 15, 1899, is held valid, then the said A.A. Brown thereby also acquired an undivided one-half interest in the property in question, and under said deed, A.A. Brown took possession of the whole tract in 1900. The facts leading up to the execution of the said deed being as follows:
"(1) That in 1899 this interest was conveyed to M.A. Thomas by J.E. Brockinton, `exhibit K.'
"(2) That B. Wallace Jones furnished the consideration and the title was made to M.A. Thomas.
"(3) That there was no special agreement between Jones and Thomas, only that Jones requested Thomas to take the deed in his own name.
"(4) That later, at the request of Jones, the sheriff's deed was held as security for a debt which Jones then owed Thomas.
"(5) That Thomas requested Jones to redeem this security, and on the failure of Jones to do so, he, Thomas, notified Jones that he would sell the property if the debt was not satisfied on a certain date.
"(6) That M.A. Thomas did not notify A.A. Brown that the was holding for B. Wallace Jones, or that Jones was in any manner interested in the property, except that in prior agreements concerning this lands Jones acknowledged himself to be the agent of M.A. Thomas, and held himself out as such to A.A. Brown (`exhibits H and N').
"(9) That B. Wallace Jones was in possession of this undivided one-half interest, until M.A. Thomas conveyed to A.A. Brown, but held himself out as agent of M.A. Thomas, and rented this property out to tenants.
"IV. That if the deed of M.A. Thomas to A.A. Brown is held valid, and the title to the undivided one-half interest is held to be in B. Wallace Jones, then the said B. Wallace Jones will be entitled to an undivided one-half interest in the property in question, and will be entitled to his proportionate share of the rents and profits during A.A. *277 Brown's exclusive possession, to be offset by his proportionate share of the costs of improvements made by the said A.A. Brown.
"V. That A.A. Brown, the plaintiff, during the years 1900, 1901, 1902 and 1903, was in exclusive possession of the entire tract in question, and made certain improvements thereon at a cost to the said A.A. Brown of $1,060, not including one tobacco barn burned, which said improvements have materially enhanced the value of the property.
"VI. That A.A. Brown, the plaintiff, during the years 1900, 1901, 1902 and 1903, was in exclusive possession of the entire tract in question, and for the first three years of his possession received rents and profits to the amount of about $170 each year, and for the year 1903 received rents and profits to the amount of about $184 — making a total of about $694.
"VII. That it will be to the best interest of the parties concerned to sell the property in question and divide the proceeds according to their respective rights, rather than to have it partitioned in kind."
The Circuit Judge in his decree, which will be reported in this case, held that the plaintiff was entitled to twenty-seven-fortieths of the tract of land. The defendant Ella F. Jones was entitled to eight-fortieths, and the defendant Evelyn M. Brown was entitled to eight-fortieths, and the defendant Evelyn M. Brown was entitled to five-fortieths, and that the partition of the land should be made between those three parties in that way. He also held that B. Wallace Jones was not entitled to any share, and that Ella F. Jones was not entitled to foreclosure of her mortgage and that the whole tract shall be sold to effectuate the partition aforesaid. He also held that the plaintiff should not be required to pay rents and profits to the defendant because the money expended by him for improvements would more than compensate the other parties for their loss of any part of the rents and profits of said lands. *278
The defendants Ella F. Jones and B. Wallace Jones alone appealed upon six grounds, which are as follows:
"I. His Honor, the Circuit Judge, erred, it is respectfully submitted, in holding and finding that M.A. Thomas, in the purchase of the interest of Holly L. Brown under the Kelley execution, came clearly within the terms of the act which affords protection to subsequent purchasers for valuable consideration without notice. He should have found and held that said Thomas paid no value for the property in question, the purchase price thereof having been furnished by Wallace Jones, and that he never began to hold the deed for value until long after the Williams mortgage had been recorded, and that he could, therefore, not be in the position of a purchaser for value without notice.
"II. His Honor, the Circuit Judge, erred, it is respectfully submitted, in finding and holding that A.A. Brown purchased from M.A. Thomas without such information as would have put out him on inquiry as to Jones' rights. He should have held that the very low price at which Thomas sold, and the action of Jones, and the possession of Jones, and the non-action of Thomas, in reference to the property, was entirely sufficient to put Brown on inquiry.
"III. His Honor, the Circuit Judge, erred, it is respectfully submitted, in finding and holding that the finding of the jury in favor of the title of two of his co-plaintiffs, and the fact that they made no finding as to the title of Holly L. Brown, was not a finding to the effect that Holly L. Brown had no interest at the time of the commencement of the suit by Holly L. Brown and his co-plaintiffs for the possession of the property in question. He should have found that the verdict unassailed decided that Holly L. Brown had no interest either at the time of the commencement of the action or at the time when the verdict was rendered, for the reason that the action did not abate by the transfer of any such interest as Holly L. Brown owned, but should have continued for the benefit of the party to whom it is *279 transferred, and a verdict for the plaintiffs generally would have been a verdict in favor of M.A. Thomas.
"IV. His Honor, the Circuit Judge, erred, it is respectfully submitted, in finding and holding that one of the defenses in answer of the defendant B. Wallace Jones could be used as evidence against the defendant in another inconsistent defense. He should have held that the defendant B. Wallace Jones had the right to set up as many inconsistent defenses as he saw fit without one of the defenses having any influence on the other.
"V. His Honor erred, it is respectfully submitted, in holding and finding that A.A. Brown was not in privity to any one who was a party to the suit of W.C. Brown and others against B. Wallace Jones. He should have found and held that A.A. Brown is in privity to Holly L. Brown, who was a party to said suit, the interest of Holly L. Brown, if he had any interest, having been transferred to M.A. Thomas while the suit was pending.
"VI. His Honor erred, it is respectfully submitted, in holding that the cost of the suit from the first reference down to the filing of the referee's report should be paid by Ella F. Jones. He should have required the cost of the entire proceeding to be paid out of the proceeds of sale of the property in question."
We will now pass upon the exceptions in their order.
I. As it is admitted by the appellants there is no dispute as to the interest of the one-half of the 420 acres of land, being the one-half of said property recovered by Samuel A. Brown and J. Hedley Brown against B. Wallace Jones. It is only the one-half of said 420 acres which would have fallen to Holly L. Brown as his three-eights in his own right and one-eighth by inheritance through W.C. Brown, for it must be constantly borne in mind that B. Wallace Jones did not and does not claim any interest in these 420 acres thought his purchase at sheriff's sale of S.O. McCown's interest in said land in the case under the execution of James W. McCants, administrator, *280 against S.O. McCown. The trouble comes from the fact that when the suit brought by W.C. Brown, Samuel A. Brown, Holly L. Brown and J. Hedley Brown against B. Wallace Jones for the recovery of the 420 acres of land, the verdict rendered in 1891 was alone in favor of Samuel A. Brown and J. Hedley Brown, and no reference was directly made in said verdict to B. Wallace Jones, who was the sole defendant in that suit. In 1889, B. Wallace Jones became, in equity, the owner of Holly L. Brown's interest at the price of $50, the sheriff's deed therefor being made to M.A. Thomas. It is claimed that this state of facts may be traced to the case of S.A. Brown and others against B. Wallace Jones, because the verdict did not show what were the grounds of the jury's finding in favor of S.A. Brown and J. Hedley Brown alone of all the plaintiffs — W.C. Brown, S.A. Brown, Holly L. Brown and J. Hedley Brown. There being an entire absence in the answer of B. Wallace Jones as to the grounds upon which he resisted the plaintiff's action. We have no right to assume that the verdict was rendered for the defendant in that suit. The verdict is conclusive, however, of the fact that no part of said land was, in November, 1891, in Holly L. Brown — Henderson v. Kenner, 1st Rich., 474; Jones v. Muldrow, Chev., 254;Barker v. Legett, 12 Rich., 198.
It is no part of the duty of the Circuit Judge to decide that M.A. Thomas paid no value for the property in question under the deed made to him by the sheriff in 1889 — two years before the verdict herein discussed — for $50 was set out in said deed as compensation therefor. The said Thomas held the land under his purchase at sheriff's sale through B. Wallace Jones as his agent, and that the Williams mortgage not being recorded until 1891, could not have affected him so as to prevent his taking the position of a purchaser for value without notice. We think the Circuit Judge was entirely correct in the conclusion reached by him, corroborated as he is by the report of the special referee. This exception is overruled. *281
II. We do not think the Circuit Judge was in error as in this exception complained of, for certain it is that A.A. Brown in his purchase from M.A. Thomas dealt with the legal holder of the title to one-half of the land in question. And the defendant B. Wallace Jones has himself to blame for this condition of the title. He admits that he caused the sheriff's title to be made to M.A. Thomas. Not only so, but he held himself out to the world as the agent of M. A. Thomas, through the papers executed by him as said agent, and also he announced to A.A. Brown that he had no interest in the land himself. The sale, therefore, to A.A. Brown was conclusive against B. Wallace Jones. This exception must be overruled.
III. It is usual that verdicts shall be responsive to the issues raised by the pleadings and the testimony offered in support of the same. It is not unusual that a person who alleges title in himself in himself in his complaint shall be found without title when the action is tried. If there was any irregularity or illegality in the verdict rendered in the case of W.C. Brown et al., plaintiff, v. B. Wallace Jones, as sole defendant, the error was that of the defendant himself. We must, therefore, overrule this exception.
IV. We think there is a mistaken apprehension in the minds of the appellants here, for there is no assertion in the Circuit decree of the error here complained of. This exception is overruled.
V. We do not think that A.A. Brown was in privity to any one who was a party to the suit of W.C. Brown and others against B. Wallace Jones. Let this exception be overruled.
VI. This is a cause in equity, and it is in the power of the Circuit Judge in such cases to fix the liability of a party for costs. Ella F. Brown in this case was the direct cause of the litigation here waged. It is in cases on the law side of the Court that the costs follow the event of the suit. The Judge has fixed her liability for costs and we will not interfere — Brickley v. Leach,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.