Barrett v. James
| Decision Date | 09 March 1889 |
| Citation | 9 S.E. 263,30 S.C. 329 |
| Parties | BARRETT et al. v. JAMES. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Sumter county.
A. B Stuckey, for plaintiffs.
Blanding Wilson & Fraser, for defendant.
Without going fully into the scope and objects of this action, it will be sufficient, for the purposes of these appeals, to state in general terms that the main object was to obtain a conveyance from defendant to plaintiffs of certain real estate which it was claimed he held possession of as equitable mortgagee, under a deed which, though absolute on its face, was intended as a mortgage, to secure the repayment of certain money advanced by defendant. One of the allegations in the complaint, denied by the answer, was that the defendant had received from the renis and profits of the land a sum more than sufficient to reimburse him for his advances, with interest, and judgment was demanded in the following terms: "That the defendant be required to convey the said premises to the plaintiffs, to give possession to them, and account to them for the rents and profits, and for such other relief as the court may deem just, and for costs." The case was originally heard by his honor, Judge KERSHAW, who on the 15th of September, 1887 filed his decree, by which, among other things, he adjudged "that it be referred to the master to take an account of the rents and profits of the land in question, during the time the defendant was in possession thereof, and to state the same;" that he take an account of the moneys advanced by the defendant, with interest thereon, and state the same; "that the amount of rents and profits ascertained upon said accounting to be due by the defendant, be deducted from the amount of purchase money paid by them, (him,) with interest as ascertained by the master;" that if the amount of the rents and profits thus ascertained should prove to be insufficient to pay the advances, and interest thereon, made by defendant, then that the land be sold to satisfy the same; but if the rents and profits should prove sufficient to reimburse defendant's advances, and interest thereon, then that the defendant do convey to the plaintiffs the land in question. This decree contained no provision for the disposition of any excess of the rents and profits over and above the amount of the advances made by defendant, probably for the reason that it was not then supposed that there would be any such excess. From this decree there was no appeal, and in accordance with one of its provisions the master held a reference for the purpose of performing the duties required of him, at which he was furnished with a statement, agreed to by the attorneys on both sides, showing the amount of the rents and profits of the land during the time it was in the possession of the defendant, as well as the amount of advances made by defendant, including the taxes paid him. From this agreed statement the master, on the 9th of January, 1888, made his report, showing that the rents and profits exceeded by a considerable sum the advances made by the defendant. To this report it does not appear that either party excepted, but at the succeeding term of the court the plaintiffs made a motion, before his honor, Judge FRASER, for an order requiring the defendant to convey the land to the plaintiffs, and to pay over to the master the excess of the rents and profits over the advances, as ascertained by his report, to be by him distributed among the plaintiffs after paying their attorney's fee out of the same. When the motion was submitted defendants' attorney handed to the attorney for plaintiffs a deed conveying the land to plaintiffs. On the 15th of March, 1888, Judge FRASER filed his decree refusing the motion for an order requiring the defendant to pay over the excess of the rents and profits over and above the amount of advances made by defendant, but saying that, "if it is thought important to have an order confirming the master's report, or an order of reference as to counsel fees, the application for such orders may be renewed." From this decree the plaintiffs immediately gave notice of appeal, and served their case on 17th of March, 1888. A few days after, to-wit, on the 24th of March, 1888, the plaintiffs gave to defendant's attorneys notice that they would apply to Judge KERSHAW, at chambers, "for an order to supply the omission of such words in his decree *** as may clearly dispose of the excess of rents and profits received by the defendant, from the land referred to in said decree, over and above the purchase money paid by said defendant for said land, and the interest thereon, on the ground that said words or matter to be inserted is clearly consequential on the decree already pronounced and filed as above stated." This motion was heard by Judge KERSHAW, at chambers, and on the 3d of April,...
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