Ex parte Keller
| Decision Date | 02 December 1938 |
| Docket Number | 14781. |
| Citation | 199 S.E. 909,189 S.C. 26 |
| Parties | Ex parte KELLER. v. HUTTO et al. HUTTO et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Calhoun County; M. M Mann, Judge.
Action by J. O. Hutto and others against Mrs. Pearl E. Hutto individually and as administratrix of the estate of S. P Hutto, deceased, and F. O. Hutto, as administrator of such estate, for partition of realty, in which B. M. Keller filed a petition for a writ of assistance, on which a rule to show cause why defendant F. O. Hutto should not be required to surrender possession of a portion of such land to petitioner was issued. From an order directing the sheriff of Calhoun county to put petitioner in possession of the premises involved, F. O. Hutto appeals.
Affirmed.
A proceeding, brought in partition suit, for rule to show cause why petitioner should not be put in possession of land purchased by him at partition sale, but withheld from him by party to such suit, was proper way, as in nature of writ of assistance, to put petitioner in possession of such land.
The order of Judge Mann follows:
This matter comes before me upon a rule to show cause, after due proceedings, upon the verified petition of B. M. Keller for a writ of assistance to which the respondent, F. O. Hutto, has filed his verified return.
It appears from the proceedings that this action, under which Keller became a purchaser at a judicial sale, was commenced on January 25, 1937, and was for the partition of certain real estate owned in fee simple and possessed as tenants in common by the plaintiff, F. O. Hutto, and his brother, the late S. P. Hutto, who died intestate on December 18, 1936 leaving as his only heirs at law and distributees the parties to this action. Due proceedings were had in the cause as resulted in a decree of this court dated February 1, 1937, whereby the real estate described in the complaint, consisting of a number of tracts, was ordered to be sold at public auction at the county court house at St. Matthews on salesday in March, 1937, by Honorable J. A. Merritt as Special Referee. The said real estate was duly advertised and sold on said salesday, the petitioner Keller being the successful bidder at the price of seven thousand ($7,000) Dollars for one of the said tracts of land described in the complaint and in the decree and in the notice of sale as follows: "That certain tract of land in the County and State aforesaid, containing 200 acres, more or less, and bounded north by S. P. and F. O. Hutto; east by Halfway Swamp; south by Ida Trezvant; west by Highway No. 45 and known as the Herbert tract."
Keller having complied with the terms of sale, the said Special Referee executed and delivered to him a title deed dated January 4, 1938, and now recorded on January 17, 1938, in Book 20, page 50, in the office of the Clerk of Court for Calhoun County, conveying the said tract of land (the description therein being exactly as the description set out in the complaint, the decree, and the notice of sale); and thereunder petitioner entered into possession of the said real estate, with the exception of a small part hereinafter referred to.
That at such sale the said F. O. Hutto, who was a party plaintiff in the said action, became the successful purchaser of adjoining real estate, the deed thereto dated April 11, 1938, and now recorded in Book 16, page 71, in the said office, being executed to him by the said referee, the following being a description of the said real estate purchased by the said F. O. Hutto, as described in the complaint, in the decree, and in the notice of sale, and in the said deed to him, to wit:
In reference to the disputed area, the property purchased by Keller lies on one side of the said Halfway Swamp, and the property purchased by the said F. O. Hutto lies on the other side of said Halfway Swamp, the center of the run of the creek of said swamp being the boundary line between the said properties.
A number of years prior to the commencement of this action the title to the lands lying on both sides of said Halfway Swamp, although obtained from different sources, became united in ownership in fee and possession in the said S. P. Hutto and F. O. Hutto as tenants in common, and while so united on or about May, 1934, the county authorities for Calhoun County improved the highway running across the said swamp, threw up a large causeway thereby impounding the waters on the upper side of said causeway into an artificial pond, and built a substantial concrete bridge with a spillway therein, so that the overflow of waters from said pond might escape; and in doing so changed for a short distance the run of the creek of said Halfway Swamp from its original location and located it further to the east, and completely blocked and stopped the old run of said creek at the causeway, so that no longer does any water flow through the old run. That this change of location of the said original run of the creek was consented to and acquiesced in by the said F. O. Hutto and S. P. Hutto, who owned all of the property thereabout on both sides of the creek, and they contributed $500 to the county to aid in the said improvement and the change in location of the said run of the creek. So much was admitted in argument at the hearing before me. It will be noted that at the time of the change of location the lands on both sides of the said creek were owned by the same parties, and that the partition suit, under which the properties were sold, was not commenced until several years after the change had been made. That after the respective deeds were made to the said F. O. Hutto and to the said B. M. Keller, the said F. O. Hutto fenced off and threw into his property the lands on both sides of the causeway lying between the old original creek bed and the new location of the creek, contending that the center of the old creek bed was the line and not the center of the new run of the creek, and he withholds possession of the same from Keller, even although Keller has exhibited his deed and demanded possession thereof. While it seems to be immaterial, it might be noted that the original decree of sale provides "that the purchaser or purchasers be let in possession of said land upon the production of the Special Referee's deed." Upon the petition of Keller, this Court, under date of May 4, 1938, issued a rule to show cause, directed to F. O. Hutto, requiring him to show cause why he should not be required to surrender to Keller the possession of the small portion of the land lying between the center of the old creek bed and the center of the new run of the said creek. Hutto has made a return, and while substantially admitting the allegations of fact appearing in the petition of Keller, alleges that the boundary of Halfway Swamp as given in both the deed to Keller and in the deed to him referred to the original run of the creek of Halfway Swamp and was so intended by the Special Referee and parties to the partition suit, and was accepted by Keller and by him as referring to the original run of the creek of Halfway Swamp. However, he does not state any fact in his return, evidencing, or disclosing, or manifesting, such alleged intention. He also alleges that in changing the run of the creek it was not intended by him and his co-tenant that it would affect any change in the status of the original run as a boundary between the various tracts of land then owned and held as tenants in common by him and S. P. Hutto. His contention is that he, as purchaser at said sale, is the owner and entitled to possession of the lands lying between the center of the run of the new creek and the center of the run of the old creek bed, and that he, therefore, took possession of the same and refused upon demand to deliver possession to Keller.
His further contention is that the petition of Keller for a writ of assistance and his return thereto raises an issue of title to real estate properly triable by a jury, and that the relief asked for in the petition cannot be granted by the court under a rule to show cause.
I will dispose of this last contention first. Hutto being a party to the partition proceeding, and he and Keller both being purchasers at the sale of respective adjoining tracts, the title to real estate is not involved in this proceeding, and the court has the power-in fact it is its duty-to see that the respective purchasers are put into possession of their respective parcels of land. There are numerous decisions so holding. It is only necessary, however, to cite the cases of Ex parte Qualls, In re Hopkinson v. Coffin, 71 S.C. 87, 50 S.E. 646; Ex parte Winkler, In re Gerald v. Gerald, 31 S.C. 171, 9 S.E. 792. In the last-mentioned case the court, at page 178, 9 S.E. at page 795 said:
"It is urged, however, that the return raised a question of title to real estate which could not be determined on a rule to show cause, and it was upon this ground that the circuit judge acted in discharging the rule. In this we think there was error. The return does not, and could not, set up any claim of title paramount to the mortgage under which appellant claims. The respondent, having been a party...
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