Bowling v. Mangum

• Decision Date: 20 November 1922
• Docket Number: 11057.
• Parties: BOWLING ET AL. v. MANGUM ET AL. TREDWAY v. MANGUM ET AL.
• Court: South Carolina Supreme Court

115 S.E. 212

122 S.C. 179

BOWLING ET AL. v. MANGUM ET AL.

TREDWAY v. MANGUM ET AL.

No. 11057.

Supreme Court of South Carolina

November 20, 1922

Appeal from Common Pleas Circuit Court of Florence County; S.W. G Shipp and R. W. Memminger, Judges.

Action by Robert H. Tredway, by John A. McCormick, his committee against Maynard Mangum, W. L. Umstead, and R. T. Umstead, and J. E. Bowling and E. H. Lawrence, individually, and as copartners doing business under the firm name and style of Bowling & Lawrence. A judgment was rendered providing that defendants Bowling and Lawrence be allowed to take proceedings against the other defendants for damages on account of the execution of an attempted lease, and pursuant thereto defendants Bowling and Lawrence filed a petition in such action against the other defendants for such damages. From an order refusing to refer the case, and an order refusing to direct a verdict for the petitioners, and from the judgment on the verdict directed for the other defendants, and an order providing for discharge of bond executed by the other defendants, on petitioners' failure to file a bond to refund to other defendants premiums paid by them in the event that it should be finally decided that petitioners had suffered no damage, the petitioners appeal. Order refusing to refer case affirmed judgment on directed verdict for other defendants reversed and remanded, and order relating to bond reversed.

Willcox & Willcox and Henry E. Davis, all of Florence, for appellants.

Whiting & Baker, of Florence, and Brawley & Gantt, of Durham, for respondents.

COTHRAN J.

This is a most unusual proceeding, and can only be understood by an extended statement.

There was a lot in the town of Timmonsville upon which a tobacco warehouse had been erected, and which belonged to Robert H. Tredway, Maynard Mangum, W. L. Umstead, and R. T. Umstead, as tenants in common, Tredway owning one-half undivided interest and each of the others named one-sixth. In April, 1916, Tredway had been declared insane, and was confined in a sanitarium. The property was in immediate charge of Maynard Mangum. On the 1st day of April, 1916, Maynard Mangum and the petitioners Bowling and Lawrence entered into a contract for the lease of the warehouse for the term of one year at a rental of $1,000 per annum, with an option in favor of the lessees for two additional years, after the expiration of the first year at the same rental. This lease was executed by Maynard Mangum in the name of Tredway and Mangum.

The petitioners Bowling and Lawrence immediately entered into possession of the leased premises, and conducted during the years 1916 and 1917 therein the business of warehousemen for the sale of leaf tobacco. On March 17, 1917, John A. McCormick, as the committee of Robert H. Tredway, who, as stated, had been declared insane, commenced an action against Maynard Mangum, W. L. Umstead, and R. T. Umstead, for the partition of said property held by them as tenants in common; Bowling and Lawrence, holding possession under the lease above referred to, were also made parties defendant. All of the defendants, Maynard Mangum, W. L. Umstead, R. T. Umstead, J. E. Bowling, and E. H. Lawrence, were personally served with copies of the summons and complaint in that action. The defendants Mangum and the two Umsteads filed no answers to the complaint. The other defendants, Bowling and Lawrence, filed an answer asserting the validity of their lease, claiming the exercise of the option for an extended term of two years, and asking that, in case a sale for partition should be ordered, it be made subject to their lease. This answer was not served upon their codefendants Mangum and the two Umsteads. Thereafter the case was referred to a special master to take the testimony. At the hearing Mangum was examined as a witness, and testified that he had authority to bind the other two tenants in common, the Umsteads, in the lease. One of them, R. T. Umstead, was present in person, and the other, W. L. Umstead, was represented by his agent.

The case came on for a hearing before Circuit Judge Shipp, upon the testimony so taken, who rendered a decree dated January 19, 1918. By that decree Judge Shipp made the following findings:

(1) That Maynard Mangum had no authority to bind the interest of the lunatic, Robert H. Tredway, in executing the lease to Bowling and Lawrence, and that, as to the interest of Tredway, one-half, the lease was null and void.

(2) That Maynard Mangum did have authority to bind the interests of W. L. Umstead and R. T. Umstead in executing the lease, and that as to their interests the lease was effective.

(3) That, notwithstanding the lease, the plaintiff, as committee of Robert H. Tredway, was entitled to partition, that right being paramount, and that the right of the lessees of the interests of these tenants in common bound by the lease should be transferred to the fund arising from the sale of the interests of such lessors.

(4) That the property could not be divided in kind, and accordingly he ordered a sale of the premises on sales day in February, 1918.

(5) That, of the proceeds of sale after the payment of certain attorney's fees and costs, one-half be paid to the committee of Tredway, and the remainder be held subject to the further order of the court.

(6) That the lessees Bowling and Lawrence be allowed to take such proceedings as they may be advised, in this cause against the defendants Mangum and the two Umsteads "to collect any amounts that may be due to them by way of damages or otherwise, on account of execution of the attempted lease by Maynard Mangum of the interests of Robert H. Tredway of the premises described in the complaint, and to collect the same out of the interests of the said defendants Maynard Mangum, W. L. Umstead, and R. T. Umstead, hereinbefore directed to be held by the judge of Probate, acting Master of Florence County, subject to the further order of this court."

No appeal was taken by any of the parties from this decree.

As required by the decree, the master of Florence county sold the property on sales day in February, 1918, and executed to the purchasers deeds therefor. The lessees Bowling and Lawrence surrendered possession to the purchasers.

The master, out of the proceeds of sale, paid the attorney's fees, the costs, one-half of the net proceeds to the committee of Robert H. Tredway, and retained the other one-half belonging to the defendants Mangum and the two Umsteads, as directed in the decree.

Availing themselves of the privilege accorded to them in the decree, Bowling and Lawrence, on May 4, 1918, presented to the court a petition in the main partition cause, rehearsing the facts and proceedings hereinbefore stated, and alleging that, by reason of the eviction of the said lessees from the premises, and the deprivation of their occupancy during the year 1918, the last year of the stipulated term, they had been damaged to the extent of $3,000, which they were entitled to have paid out of the fund remaining in the master's hands, belonging to Mangum and the two Umsteads. They prayed that appropriate proceedings be had to ascertain the amount of said damages, and that the master be required to pay the same when ascertained out of said fund. Upon the presentation of the petition Judge Shipp, on May 6, 1918, ordered that a copy of the petition and of the order be served personally upon the defendants Mangum and the two Umsteads, and that they be allowed 20 days for answering.

The petition was in a few days thereafter personally served upon the said defendants. Thereupon the defendants made a motion before Judge Shipp to open his decree of January 19, 1918, and to set aside so much of it as extended beyond the relief prayed for in the original partition complaint, especially so much thereof as related to the disposition of the interests of the defendants in the proceeds of sale and to the privilege accorded Bowling and Lawrence of taking proceedings in the cause to establish their claim for damages against the defendants. The matter, for some reason, did not come up before Judge Shipp until November 15, 1918, at which time he heard the motion and passed an order refusing it, and allowing the defendants further time for answering.

The defendant Mangum then filed an answer to the petition of Bowling and Lawrence, admitting the execution of the lease, but alleging that he intended, and it was so understood by the lessees, to affect the interest only of himself and the two Umsteads, and not in any wise that of Tredway; he denied that he was at all responsible for the termination of the lease by the partition sale, and contested the jurisdiction of the court to include in the decree the provision in favor of Bowling and Lawrence; he denied that the lessees had suffered damage for the reason that they immediately procured another warehouse of equal facilities.

The defendants Umstead interposed a demurrer to the petition upon the ground that the claim of Bowling and Lawrence is based upon an alleged breach of an agreement made without authority by the defendant Maynard Mangum, in the name of Tredway and Mangum, and that there is no allegation connecting them with said agreement or making them chargeable with the breach of it, or responsible for the damage sustained by the lessees.

The petitioners Bowling and Lawrence then applied to the court for an order of reference upon the petition. On January 8, 1919, Judge Shipp passed an order refusing the motion, holding that the defendants were entitled to a jury trial upon the issue of damages claimed by the petitioners.

On February 15, 1919, Judge Shipp passed an order allowing the defendants to withdraw from the master the funds in his hands belonging...