Young v. Garlington, 31 S.C. 290

Young v. Garlington

31 S.C. 290 | S.C. | 1889

The opinion of the court was delivered by

Mr. Chiej? Justice Simpson.

Stobo D. Garlington, defendant,-respondent, some time in 1876 contracted to purchase from *297his mother, Susan W. Garlington, a certain house and lot, situate in the village of Laurens, of this State, and in completion of this contract he executed a bond, conditioned to pay to the said Susan W. Garlington §5,000 in five equal annual instalments, with interest, &c. This bond was secured by a mortgage of the premises. Mrs. Susan W. Garlington died on the day of March, 1880, leaving a will, in which the plaintiff, appellant, was appointed executor, and who, having qualified, the action below was brought on said bond and to foreclose said mortgage, praying judgment for the sale of land, and that execution be awarded for the balance, if any, after application of the proceeds of the sale.

The defendant answered, claiming that he was a legatee under the will of his mother, the plaintiff’s testatrix, and that the action of plaintiff should be suspended until the estate was settled. He further claimed that he held a large note on his mother, amounting to some §1,226.27, and also other claims, consisting of moneys advanced, and supplies furnished to a considerable amount, which, by agreement between his mother and himself, should be credited on the bond sued on. To this defence plaintiff replied that defendant was indebted to him as executor in a large amount, arising out of the fact that defendant had possessed himself of a hundred shares of the stock of the South Carolina Railroad and South Western Bank, of the par value of §125 per share, and of one hundred and twenty-five shares of the stock of the South Carolina Railroad Company, of the par value of §50 per share, belonging to his said mother; and also that he had received the rents and profits of certain real estate in Florida belonging to his said mother, all of which he had refused to account for. Plaintiff also denied any knowledge, information, or belief as to the claims set up by the defendant.

The case was referred to the master, and although the bond and mortgage was signed by the defendant, S. D. Garlington, “trustee and agent,” and the deed of conveyance conveyed the land to him with the same words, “trustee and agent,” added, yet the case was conducted before the referee as if it was an individual matter entirely with the said S. D. Garlington, as there was nothing in the papers showing for whom Garlington was trustee and agent. And upon this state of facts the master made his report, finding *298a large amount due on the bond after allowing all payments and credits, and also finding that the defendant held as trustee for his mother the railroad and bank stocks mentioned, which he had refused to turn over to the executor, and which had been lost in his hands.

Upon exceptions to this report, his honor, Judge Hudson, concluding that a final judgment could not be pronounced, in view of the fact that the master had not reached a definite conclusion as to the value of certain items of alleged indebtedness set up in the plaintiff’s reply to defendant’s counter-claim, &e., &c., recommitted the case to the master. And it appearing in the testimony reported by the master that Mrs. Mary Y. Garlington, the wife of the said S. D. Garlington, might perhaps be the cestui que- trust indicated in the words “trustee and agent,” appearing in all of the papers, in recommitting the case he ordered that said Mary Y. Garlington be made a party defendant to the action, and that upon her filing an answer that the reference proceed, with the view to ascertain the amount due on the bond and mortgage, and with leave to report on any special matter that might be raised.

Under this order, Mrs. M. Y. Garlington became a party, and answered, setting up the claim that her husband, S. D. Garlington, was her agent and trustee of certain of her interests in the State of Tennessee, and in substance claiming that the real estate in question was purchased by her husband for her, and that she was entitled to the payments and credits set up by her said husband in the former reference, &c. The master in the second reference sustained this view of the case, and reported in accordance therewith the amount due on the bond September 3, 1887, by Mrs. M. Y. Garlington, to be $4,412.41, for which he recommended judgment against the said Mrs. M. Y. Garlington. The case assuming in the second reference this new shape, the master declined to allow the plaintiff’s claim against S. D. Garlington individually as to the matters presented in plaintiff’s reply to the counter claim set up in the answer of S. D. Garlington, before his wife was made a party.

This report, upon exceptions, was heard by his honor, Judge Norton, who confirmed the same, except as to some errors in *299the calculation of interest, and upon recasting the same he found due on the bond the sum of $3,779.53 on the 3rd day of September, 1887, and he ordered a sale of the property, or so much thereof as might be necessary to pay this sum with interest and costs, &c. He further held that the personal matters between S. D. Garlington and the estate of his mother could not be litigated in this action, and that the pleading relating to them should be dismissed without prejudice to either side, &e.

From this decree the plaintiff has appealed upon sixteen exceptions. The first alleges error to his honor, Judge Hudson, “because he failed to sustain plaintiff’s exceptions to the master’s report, and that ho did not give the plaintiff the relief he asked.” This exception is entirely too general, and under rule V. of this court cannot be considered. That rule provides that “an exception for the purpose of an appeal must contain a statement of the proposition of law or fact which it is desired to review ; and a mere reference to an exception taken to the report of the master or a referee, or to the decree of a judge of probate, will not be sufficient, and an exception so taken will not be considered.” The plaintiff filed eighteen exceptions to the master’s report, to all of which the exception above refers, with no distinct proposition of either law or fact stated to which error is alleged.

The 2nd exception alleges error, because his honor ordered that Mrs. Mary Y. Garlington be made a party defendant on his own motion, and in recommitting the cause to the master. Section 343 of the Code provides: “That when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.” It appeared in the testimony reported by the master, that Mrs. Garlington might have an interest in the pending controversy, and if so, as she was not before the court, the judgment would not bind her, and therefore that the whole proceeding ■vyould be nugatory and useless, settling nothing. Under these circumstances, we do not think that his honor’s order was ultra vires. It was in the line of preventing unnecessary litigation, and was authorized by the section of the Code, supra.

Exceptions 3. 4, 5, 6, 7, 8, and 31 involve questions of fact, and under the rule which requires either an entire absence of all *300testimony to support findings of fact by a Circuit Judge, or an evident preponderance of testimony against them before they can be disregarded, these exceptions must be overruled. Here the findings objected to were reported by the master and concurred in by the Circuit Judge, and, upon examination, we cannot say that they were unsupported. In fact, if the witnesses were credible, which was a matter for the master and the Circuit Judge, we do not see how the findings could have been otherwise.

The 9th exception alleges error, because his honor did not hold that the accounts mentioned in exception 7, were barred by the statute of limitations. The evidence showed that these accounts were regarded and understood to be payments on the bond at the date of being contracted — so found by the master and the judge. The statute was therefore inapplicable, and while not strictly carrying interest, they would “stop interest,” as held by the judge.

Exceptions 10 and 12 claim that his honor erred in holding that the claim set up in plaintiff’s reply against S. D. Garlington could not be adjudicated in this action. When Mrs. M. Y. Garlington was brought in, the case, as we have stated above, assumed a very different status from that which existed when it commenced. At the beginning it appeared to be a case against S. D. Garlington individually, but the subsequent facts developed that it was really a case against Mary Y. Garlington. The bond sued on was against her, the mortgage was hers, and the land purchased was really hers, and the .payments and credits had been made from her funds. Such were the facts subsequently found, which findings we have not felt authorized to overrule. Upon these established facts, the entire litigation was between the plaintiff and Mrs. M. Y. Garlington. Such being the character of the cause, the Circuit Judge could not, under the rules of pleading, &c., have allowed an independent litigation to go on sbetw'een the plaintiff and the defendant, S. D. Garlington, in reference to matters in which Mrs. M. Y. Garlington had no interest. This would have been ajoinder of actions for which there was no warrant.

15. The railroad stock, being an individual matter with S. D. Garlington, was not properly in the case. Exceptions 13 and 14 have already been considered.

*301It is the judgment of this court, that the judgment of the Circuit Court be affirmed.