Chisolm v. Pryor

• Decision Date: 14 August 1945
• Docket Number: 15767.
• Parties: CHISOLM v. PRYOR.
• Court: South Carolina Supreme Court

35 S.E.2d 21

207 S.C. 54

CHISOLM v. PRYOR.

No. 15767.

Supreme Court of South Carolina

August 14, 1945

Appeal from Common Pleas Circuit Court, of Charleston County; Wm. H Grimball, Judge.

Suit by Edward Chisolm against Alice Seel Pryor to quiet title to land and for reformation of deeds and other relief. From an order referring certain matters to the master in equity defendant appeals. Plaintiff assigns cross-error.

The Order of Judge Grimball follows:

This cause comes now to this court on several motions made by the parties.

Plaintiff moves for an order of reference as to the issues in the cause, with the exception of the issue as to damages as set forth in the counterclaim.

Defendant moves for an order bringing in as parties defendant certain mortgagees of the real properties held by plaintiff and defendant. And defendant also moves for an order striking the cause from calendar 2 and docketing same on calendar 1.

These motions have been thoroughly argued to this court, and the attorneys have assisted the court much by furnishing briefs and citations of authorities relied on by them.

It seems to me that the motion to have the mortgagees made parties to the cause should be refused. It is true that they might properly be made parties, but they are certainly not necessary parties to the determination of the issues between plaintiff and defendant. And to make them parties now would serve to prolong and delay the progress of the cause.

The mortgagees not being necessary parties, there is no necessity to make them parties solely because the defendant asks that this be done. If, however, the mortgagees themselves had petitioned to be allowed to join the controversy a different situation would have been presented. The court would in such case be inclined to allow them to come in and 'open up a second front.'

Now to dispose of the remaining motions.

There are several issues joined by the pleadings. One of them--as to the reformation of the two deeds held by plaintiff and defendant--is purely equitable in nature. The remaining issues are purely legal in nature.

It is the established rule in this jurisdiction that where the pleadings raise legal as well as equitable issues the Circuit Judge has the power to refer the equitable issues to the master in equity with instructions to report to the court his findings of fact and his conclusions of law;--and that the Circuit Judge has the discretion to determine whether it is in the interest of justice to grant such an order of reference;--reserving the legal issues for trial by jury. Dinkins v. Robbins, 203 S.C. 199, 26 S.E.2d 689; Mills v. Little, 158 S.C. 17, 155 S.E. 148.

A thorough consideration of the issues here raised convinces me that it is in the interest of justice to have the purely equitable issue as to the reformation of the two deeds determined by the equity arm of this court. I do not believe that a jury is the proper tribunal for an intelligent determination of this purely equitable issue.

It is therefore ordered that the issue joined in this cause as to the reformation of the two deeds held by plaintiff and defendant be, and is hereby, referred to William McG. Morrison, Esq., Master in Equity for this county, with instructions to take the testimony, hear the arguments of counsel, and report to this court his findings of both fact and law, with leave to report on any special matter.

It is further ordered that the remaining issues joined by the pleadings herein, being of a legal nature, be reserved for trial by jury; such trial to await the determination by the courts of the equitable issue as to the possible reformation of the deeds.

It is further ordered that this cause remain upon calendar 2 and defendant is hereby granted permission to docket the same upon calendar 1, so that its proper place upon that calendar may not be lost pending a final determination of the equitable issue.

And it is so ordered.

John I. Cosgrove and Frank H. Bailey, both of Charleston, for appellant.

H. L. Erckmann, of Charleston, for respondent.

TAYLOR, Justice.

This is an appeal from an order of the Honorable William H. Grimball passed in Charleston County, referring certain matters to the Master in Equity of that County to take testimony, hear arguments of counsel and report findings of fact and law. This order is challenged by both parties to the action--the plaintiff-respondent, on whose motion the order was passed, questioning its sufficiency to comprehend all the equitable issues claimed to be present, and the defendant-appellant urging that the matter was not referrable in any event.

From the complaint, it appears that appellant and respondent are the owners of two adjacent lots on North King Street in the City of Charleston. In 1879, there was conveyed to Andrew Simonds two certain lots lying together and fronting on King Street a total of 92 feet 6 inches. A brick building practically covered both lots and obliterated the line between the lots, one of which was referred to as No. 3, and as having a frontage of 52 feet 6 inches, and the other as No. 4, having a frontage of 40 feet on said street. Andrew Simonds devised the property to his son, Louis D. Simonds, for life, who razed the structure thereon and, according to the complaint, subdivided the land into two lots on King Street, No. 5 King Street fronting thereon 46.55 feet and No. 7 fronting thereon 46.15 feet; this taking place about 46 years ago. At that time the present structures were erected and certain physical landmarks (a coping, fence, etc.) indicated the boundary between the two premises, which provided for a ten-foot space between the houses, used as a driveway for No. 7 King Street. If the original dimensions (as set forth in the Andrew Simonds deed) are adhered to, this driveway would be cut in half; the line as made by the coping, etc., has been the true and recognized line for some 46 years, acquiesced in by the owners of the two properties.

In December, 1935, pursuant to an action for change of investment by Louis D. Simonds, the property known as No. 5 King Street was conveyed by the Master in Equity to Caroline Barnwell Simonds Stevens and J. Stanyarne Stevens, the lot being described as fronting on King Street 52 feet 6 inches. No. 7 King Street was conveyed by the Master to C. Otto Sparkman and Mary Rhett Sparkman, and was described as fronting on King Street 40 feet. The complaint alleges that the description in each deed was in error, stating that the description used included in the No. 5 King Street premises the driveway which, according to the physical landmarks, was a part of the premises of No. 7 King Street; and that the buyers of No. 5 King Street intended to buy only to the coping, etc., and that the buyers of No. 7 had no idea that their purchase did not include the driveway; that the respective purchasers went into possession of the properties as divided by the coping, etc.

On December 1, 1936, the Stevens' conveyed No. 5 King Street to Henry C. Robertson, who conveyed to Frank Davis Pryor and Alice Seel Pryor on September 3, 1941, and on the same day Frank D. Pryor conveyed his interest to Alice Seel Pryor, the defendant herein. The description in all of the deeds involved called for 52 feet 6 inches on King Street, which, it is alleged, was due to mistake, the parties...