Copeland v. Copeland

• Citation: 38 S.E. 269,60 S.C. 135
• Parties: COPELAND et al. v. COPELAND.
• Decision Date: 01 April 1901
• Court: South Carolina Supreme Court

38 S.E. 269

60 S.C. 135

COPELAND et al. v. COPELAND.

Supreme Court of South Carolina

April 1, 1901

Appeal from common pleas circuit court of Bamberg county; George W Gage, Judge.

Partition by John S. Copeland and others against Jacob C. Copeland. From an order refusing defendant's motion for leave to file a supplemental answer, he appeals. Affirmed.

McIver C.J., dissenting.

Inglis & Miley, for appellant.

Davis & Best and John R. Bellinger, for respondents.

JONES J.

This is an appeal from an order refusing defendant's motion for leave to file a supplemental answer. The action was for partition of land. The defendant resisted, setting up, among other matters, title in himself exclusively by adverse possession for the statutory period. The issues had been referred to the master, and the master had reported adversely to the defendant, filing his report in July, 1899. For two terms of the court thereafter the cause was continued because the defendant's attorney, G. W. M. Williams, Esq., had been disbarred for misconduct, and defendant had not secured other counsel. The defendant, represented by Messis. Inglis & Miley, at the April term, 1900, on due notice moved "to set aside the report of the master herein filed July 19 1899, to recommit the issues herein to the master, and for leave to the defendant to make and file the proposed supplemental answer," which alleged: (1) That on the 10th day of March, 1900, after the filing of the original answer and the report of the master, the defendant received from the clerk of the court of Bamberg county a deed purporting to have been made and executed by Eva F. Copeland his mother, to the defendant, and dated June 19, 1873, conveying the land in question, recorded March 7, 1900; (2) that he was ignorant of the existence of said deed until the receipt by him of same from the clerk of the court on March 10, 1900, although aware that his mother had in her lifetime expressed her purpose of securing said land to him in some way; (3) that under said deed he was sole and exclusive owner of said land. The defendant's affidavit was to the effect of the foregoing answer. In addition, he submitted the affidavit of Mary A. Copeland to the effect that "on or about the 5th day of March, 1900, she was taking some old clothing of J. G. Copeland, her husband's father, out of a chest, in which they had lain since the death of said J. G. Copeland, to whom, in his lifetime, said chest belonged, and which had not been removed since his death, when she found under the clothing in said chest some papers, one of which attracted her attention as looking like a land paper; that, thinking it might be of some value to her husband, J. F. Copeland, she called him into the house, and showed him said paper, which, upon examination, turned out to be a deed from Mrs. Eva F. Copeland to Jacob C. Copeland, having folded up in it two dollars in money and a slip of paper," etc. The slip of paper was as follows: "State of South Carolina, Barnwell District. June 19th, 1873. Inclose Two Dollars After my death have recorded and returned to my son J. C. Copeland or his Ears." Both appellant's and respondents' counsel in their argument state that this slip was not signed by any one, and was not in the handwriting of the said grantor. The affiant, Mrs. Mary A. Copeland, further stated that she gave the paper to her husband, J. F. Copeland. J. F. Copeland made affidavit to the effect that on or about the 5th of March, 1900, his wife showed the paper to him, and that he, in pursuance of the instructions on said slip, which he supposed was intended for his father, J. G. Copeland, mailed the deed and money to the clerk of the court for Bamberg county, with instructions to record the same, and return to J. C. Copeland. This affiant stated that the old chest wherein the papers were said to have been found "belonged to his father, J. G. Copeland, then deceased, who had lived the latter part of his life and died in the same house with deponent and his family." The relation between the alleged grantor, Eva F. Copeland, and the owner of the chest, J. G. Copeland, does not appear in the brief, although it may have appeared in the report of the master and the evidence before him, all of which were before the circuit judge on the motion; nor does it appear when the grantor died, or how long the alleged depositary of the deed survived her, nor whether the alleged grantor lived in the house where the old chest was kept, nor whether she had any control over or access to said chest. It appears, however, that Mrs. Eva Copeland died before the said J. G. Copeland, but there was nothing to explain why J. G. Copeland did not have the deed recorded, and delivered to defendant, if he was its custodian under the instructions contained on said slip. No evidence was offered to show the signing of the deed by the alleged grantor nor by the witnesses, both of whom were dead. There was submitted an affidavit by a brother of the notary public whose name appears on the deed, in connection with the affidavit of one of the witnesses as to the execution of the deed, that the notary's signature is genuine. The alleged deed was also produced before the circuit judge.

In refusing the motion, the following reasons were assigned, and were taken down by the stenographer: "A deed must be executed in due form, and delivered in due form, to pass title. If the delivery is postponed until after death, there is no delivery to the person, and no title passes. I am of the opinion that the intention of the maker was to postpone the delivery till after her death; therefore there was no delivery. Now, the second question, as to whether this paper is a bona fide paper. If I thought there was a reasonable doubt about the matter, I shouldn't hesitate to refer it to a jury; but upon inspection of the paper, and from the argument of counsel, I am satisfied,--after two whole days' consideration I am satisfied,--from a bare inspection, that this paper is a manufactured paper from the beginning, for the reason that the maker is dead, both witnesses are dead, and there is no testimony offered to prove that the names of the witnesses purporting to be here are their genuine signatures, and the fact that the paper, and especially the ink, shows this thing was done within twelve months. If I did not have a settled conviction that to allow a party to set up such relief would be to practice fraud--I have such a high regard for counsel, and for what they say, that I accept what they say in court as true,--that they would not set up a paper in defense without believing it was a bona fide paper. I accept it. Still I must have my own belief, and my belief is that, if I grant the motion to file the supplemental answer, and refer it to a jury, I would be doing what in my heart of hearts I know would be lending a helping hand of the court to carry out what would be fraud upon the law; and for that reason I must decline the motion to file a supplemental answer."

The six exceptions taken to the order of the court are reduced by the appellant's counsel to two propositions, as follows: "First, that the circuit judge has exceeded the limits intended and allowed by law upon the hearing of a motion of this kind, in the extent of his examination into and decision upon the facts and merits of the defense set up in the proposed supplemental answer; and, second, that, even if the question of delivery was such as could properly be decided by the judge on the hearing of this motion, his honor erred, as matter of law, in deciding that under the facts presented before him in this matter there was not, and could not have been, any legal delivery of this deed to the appellant, Jacob C. Copeland."

The matter of supplemental pleading is regulated by section 198 of the Code of Civil Procedure, which provides: "The plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made," etc. In the case of Moon v. Johnson, 14 S.C. 435, this court, in refer ence to this section, said: "The leave of court is necessary in all cases to file a supplemental complaint; and, although this leave will be generally granted, yet it is by no means a matter of course order to which a party is entitled whenever he may choose to apply for it. On the contrary, the motion must be made in due time, in good faith, and upon facts warranting the favorable action of the court; and, when thus made, it rests upon the discretion of the court whether it shall be refused or granted." This quotation is not a mere obiter dictum, for it was in direct response to the first exception, which raised the question whether the plaintiff was entitled to a supplemental complaint as matter of course. Thus we see that the refusal of a motion to file a supplemental answer, like the matter of refusing amendments under section 194, rests in the discretion of the circuit court. It is well settled in reference to this matter of amendments under section 194 that this court will not set aside an order granting or refusing an amendment except for abuse of discretion, or when the exercise of the discretion was controlled by some error of law. Since a supplemental pleading is in the nature of an amendment to the pleading sought to be supplemented, the same rule should, in reason, apply, and must apply, if, as stated in Moon v. Johnson, supra, the matter rests in the discretion of the court. As stated by Acting Associate Justice Benet in Norris v. Clinkscales, 47 S.C. 498, 25 S.E. 797: "The courts and text writers all concur that by judicial discretion is...