Dana v. Peurifoy

• Decision Date: 09 November 1927
• Docket Number: 12311.
• Citation: 140 S.E. 247,142 S.C. 46
• Parties: DANA v. PEURIFOY.
• Court: South Carolina Supreme Court

140 S.E. 247

142 S.C. 46

DANA v. PEURIFOY.

No. 12311.

Supreme Court of South Carolina

November 9, 1927

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Jane T. Dana against James E. Peurifoy, receiver of the American Bank & Trust Company. Decree for plaintiff, and defendant appeals. Affirmed.

The following is the decree of Judge Wilson:

"This action is brought for the purpose of determining the priority of the liens claimed by the plaintiff, Mrs Dana, as landlord, for arrears of rent upon the proceeds of sale of the fixtures that were in her building at the time of the sale thereof, hereinafter mentioned, and of the defendant as receiver, claiming as mortgagee under mortgage of said fixtures made by Hendrix & Co., Inc., the tenant of said premises, and was heard by me in open court at Columbia, on April 13, 1927.

"The cause had been docketed by defendants upon calendar 1, but a motion was made by the plaintiff's attorneys to have the cause transferred to calendar 2 for trial, upon the ground that the issues raised were equitable and properly triable by the court, and at the same time a motion was made by defendants that, if the court held the issue raised equitable and transferred the case to calendar 2, the court should then frame certain issues to be submitted to a jury. Upon the hearing of these motions, I was satisfied that the issues raised were purely equitable and that the matter could be disposed of by the court without framing issues, and I granted the motion to transfer the cause and refused to refer the issues. The whole question at issue was the priority of the liens claimed by the parties; the proceeds of the sale of the fixtures being held by a trustee under stipulation between the parties, subject to the determination of this issue by the court.

"When the cause came on thereafter for trial, my attention was called to the fact that a notice of appeal had been served by the defendants from the order transferring the cause to calendar 2, and it was contended on behalf of defendants that such notice of appeal operated as a supersedeas, and that I should not therefore proceed with the trial of the cause but, after hearing argument, I was convinced that, the issues raised in the pleadings being purely equitable, the order transferring to calendar 2 was not appealable, and did not operate as a supersedeas, and there was no sufficient ground for not proceeding with the trial.

"The following facts are admitted or established by the evidence adduced upon the trial:

"For some time previous to November, 1924, Hendrix's, Inc. occupied as tenant of Mrs. Dana the premises, No. 1645 Main street, Columbia, S. C., and owned the fixtures from the sale, of which the funds in controversy were derived. During all said time these fixtures remained in the storehouse owned by the plaintiff, Mrs. Dana. In the fall of 1924, Hendrix's, Inc., then the tenant of Mrs. Dana went into bankruptcy, and the stock of fixtures was sold by the trustee in bankruptcy on November 28, 1924. The day before this sale, Mr. S.E. Hendrix and Mr. H. G. Brady secured from Mrs. Dana an option to lease, for the benefit of a new corporation to be formed by them, the said premises, for a period of about two years, upon substantially the same terms as the former lease (said lease to commence from either December 1, 1924, or the occupation of said premises by the new corporation). This option was taken in the name of H. G. Brady, as agent, and the money paid for it was that of the parties for whose benefit it was secured. The option was in writing, and Mrs. Dana delivered a copy or duplicate of same to Mr. Edwin Belser to prepare the lease from, but all duplicates or copies thereof have been lost or destroyed. The material terms thereof, however, are shown by the testimony. After the adjudication in bankruptcy of Hendrix's, Inc., and prior to the sale, Mr. S.E. Hendrix and Mr. Brady had secured the assistance of Mr. Du Pre and Mr. Pearce to furnish $1,500 to put into the new business to be formed by them, along with Mr. E. T. Hendrix, who put into the new concern the stock of goods in a business then being operated by him; and it was for the purpose of securing the building of Mrs. Dana to be used for the purposes of the new company so to be formed that the option was obtained prior to the bankruptcy sale.

"At the sale on November 28, 1924, the fixtures and stock of goods (formerly of Hendrix's, Inc.) were bid off by Mr. J. D. Perry, after notice given by Mr. Brady that he had secured an option for the lease of the premises. Thereafter, after notice had been served upon Mr. Perry to surrender the premises, an agreement was reached between Hendrix and Brady and Mr. Perry, whereby Hendrix and Brady, for the new company to be formed, bought from Mr. Perry the fixtures at the price of $7,000, paying him then on account of said purchase $3,500. This was on December 3, 1924, and Mr. Perry then delivered the fixtures to Mr. Brady and Mr. Hendrix. Under the terms of this purchase from Mr. Perry, he was to procure the confirmation of the sale by the referee in bankruptcy, whereupon the balance of the purchase price was to be paid; but in the meantime the purchasers were given possession of the fixtures, and, in the final settlement that was made between them, Mr. Perry paid Messrs. Hendrix and Brady, or the new corporation formed by them, the rental for the three days from December 1st to December 3d, the time he (Perry) had occupied the store before he delivered possession of the store and fixtures as above stated.

"The order of confirmation of sale was secured from the referee in bankruptcy on December 8th, and promptly thereafter Messrs. Hendrix and Brady took exclusive possession of the store and fixtures, and proceeded to secure the charter for the new company. The charter was issued by the secretary of state on December 11th, and was deposited for record in the office of the clerk of court for Richland county on the same day. At the time of the issuance of the charter, the company was in possession of the store and fixtures, and the relation of landlord and tenant with Mrs. Dana had begun.

"On

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