Clayton v. Mitchell

• Decision Date: 02 July 1889
• Citation: 9 S.E. 814,31 S.C. 199
• Parties: CLAYTON v. MITCHELL.
• Court: South Carolina Supreme Court

9 S.E. 814

31 S.C. 199

CLAYTON v. MITCHELL.

Supreme Court of South Carolina

July 2, 1889

Appeal from common pleas circuit court of Barnwell county; NORTON Judge.

James E. Davis, for appellant.

Skinner & Williams, for respondent.

McIVER J.

This was an action to recover possession of real estate, the allegations of the complaint being in the usual form, to which the only defense interposed was a general denial.When the case was called for trial an order of reference was made (by consent, as we assume, inasmuch as such an order, in such a case, could not otherwise have been made) whereby all the issues were referred to the master for trial.In pursuance of this order the master made his report, finding as matter of fact that one Joseph J. Clayton went into possession of the land in dispute in the year 1842, and, after holding it as his own for more than 20 years, by his deed bearing date 30th March, 1875, conveyed the same to a trustee for the sole and separate use of his wife, who is the plaintiff herein, for and during the term of her natural life, with remainder to her children, etc.; that the defendant is in possession of the land, and withholds the same from the plaintiff, and that the rental value of the land is one hundred dollars per year and he found as matter of law that the plaintiff is entitled to recover the possession of the land from the defendant together with $600 damages.To this report the defendant filed exceptions, combined with a notice of a motion to set aside the report, and recommit the case to the master with leave to amend his answer by "pleading of former judgment and title, if necessary, and for any other appropriate relief on the ground set forth in the foregoing affidavit" of one of his attorneys, which is set out in the record.His exceptions, as incorporated in this notice of motion, appear to be (1) that the evidence as reported by the master shows title out of the plaintiff and in the defendant; (2) that "the several findings of fact and law by the master are opposed to the evidence, inaccurate, or superfluous, and he should have reported in favor of the defendant in all respects."It seems that at the opening of the reference the plaintiff moved to continue the case upon the ground of the absence of a material witness who had been duly subp naed, whereupon defendant's attorneys offered to accept the affidavit of what such witness would testify to if present.Accordingly the plaintiff's motion for a continuance was refused, and the affidavit of plaintiff's attorney as to what he expected to prove by the absent witness was received as the testimony of such witness.At the close of plaintiff's testimony the defendant offered to introduce evidence tending to show that he had been in adverse possession of the land for more than 10 years prior to the commencement of the action, which, upon objection, was ruled inadmissible under the simple defense of the general denial.Defendant then offered evidence tending to show that the matter in dispute was res adjudiccta, and the master, though holding that such a defense could not be interposed under the general denial, but should have been specially pleaded, nevertheless permitted defendant to introduce the evidence, which the master in his report states as follows: "On the 30th of March, 1875, an action was commenced in this court, entitled 'John W. D. Clayton, trustee of Sylvania A. Clayton, vs. John Mitchell,' for the recovery of this same tract of land.This action resulted in a nonsuit.Several years afterwards, perhaps in 1879, the same action was recommenced, bearing the same title; the issues were referred to the late I. M. Hutson, Esq., and upon the coming in of his report a decree was rendered in favor of the defendant against the said trustee."It appears, however, from the testimony taken by the master, which is set out in the "case," that there was also certain parol evidence adduced in support of the plea of res adjudicata, as well as the records of the two actions referred to in the report.The master concluded as matter of law that the deed of trust under which plaintiff claimed, having been executed since the adoption of the constitution of 1868, vested the absolute title in the plaintiff free from any trust, on the ground, as we presume, that the statute of uses executed the use, and carried the legal title to her; and hence, she not being either party or privy to the actions brought by the trustee, she was not bound thereby.

In the affidavit of one of the attorneys for the defendant heretofore mentioned as accompanying his notice of motion and exceptions, various errors and imperfections in the statements contained in the master's report are alleged and then the affidavit concludes in these words: "Diligent search and inquiry were from time to time made by defendant's counsel to find the report of Mr. Hutson, and the judgment thereon mentioned on the second and third pages of the master's report, but the same were not found until a short time before the reference, and in a place where they were not before suspected to be, and deponent had no suitable opportunity of pleading them.Deponent further states that in his best judgment it was not necessary to plead the estoppels of the former judgments against the plaintiff, or title in the defendant, in order to obtain their benefit; but it is observable that the affidavit does not state, nor does it any where appear in the record, that any motion to amend the answer was ever submitted to the master.On the contrary, the conclusion seems to be irresistible that the defendant stood...