Fanning v. Bogacki

• Decision Date: 21 January 1919
• Docket Number: 10120.
• Citation: 98 S.E. 137,111 S.C. 376
• Parties: FANNING ET AL. v. BOGACKI.
• Court: South Carolina Supreme Court

98 S.E. 137

111 S.C. 376

FANNING ET AL. v. BOGACKI.

No. 10120.

Supreme Court of South Carolina

January 21, 1919

Appeal from Common Pleas Circuit Court of Barnwell County; Ernest Moore, Judge.

Action by Lena Fanning and others against C. Y. Bogacki. Judgment for plaintiffs, and defendant appeals. Affirmed.

The decree of the presiding judge was as follows:

Decree.

This is a suit in equity, the complaint in which alleges that in 1894 the land described in the complaint was sold by the master for Barnwell county in a partition suit among the plaintiffs to which action W. H. Kennedy, holding two mortgages over the land, was made a party. That before said sale, the plaintiff Mrs. Fanning, on behalf of herself and her children, had an oral agreement with C. Y. Bogacki, the defendant in this action, that he should buy in the land at this master's sale and hold the same until, out of the rents, he reimbursed himself for the outlay in the purchase price and such sums as he should thereafter advance for the support of the said Mrs. Fanning and her children, whereupon he would reconvey the land to them. The complaint also alleges that by reason of this alleged agreement being known at the sale the bidding was chilled and the land was sold to the defendant at much less than its value--at a sacrifice unless the agreement be enforced. The complaint, among other things prays for such relief as may be equitable and just.

The defendant answered by a general denial and pleaded adverse possession for 10 and 20 years. These two latter defenses are, of course, not applicable to this suit in equity. See Blackwell v. Ryan, 21 S.C. 124, where the Supreme Court uses this language: "It is undoubtedly true that 10 years' adverse possession gives title against all who are capable of suing and do not; but it seems to us that the legal bar of the statute cannot as such be interposed to a proceeding on the equity side of the court for the specific performance of an executory contract. See Smith v. Smith, McMull. Eq. 134." Also Poston v. Ingraham, 76 S.C. 167, 56 S.E. 780.

The action was referred to the master to take the testimony and comes up for hearing before me in open court upon this testimony.

The undisputed facts are that in 1891, one G. S. Fanning was killed, and died seized and possessed of seven undivided eighths of the tract of land described in the complaint, the other one eighth belonging to R. B. Fanning, who later conveyed it to the widow and children of G. S. Fanning. That he left surviving him his widow, Mrs. Lena Fanning, and certain infant children, the oldest being 20 1/2 years and the youngest 4 years old at the time of the sale in 1894. These children or their heirs are all plaintiffs in this action. That G. S. Fanning had given two mortgages over this land to one W. H. Kennedy, now deceased. That in 1894 the land was sold by the master in a partition suit brought by Mrs. Fanning against her children and the said mortgagee. There was only one bid, and that was made by Messrs. Patterson & Holman, who were the attorneys conducting that partition suit. Pursuant to that bid, the master's deed was made to the present defendant, C. Y. Bogacki, who was then and is now a resident of the city of Montgomery, Ala., and who is a brother of the plaintiff, Mrs.

Lena Fanning. C. Y. Bogacki was not present at the sale. The amount bid was the exact amount due on the mortgages, principal $752.60, interest from the date of the decree to the date of the sale $35.12, and costs $40.78. For at least one year, if not more, after the sale the defendant, Bogacki, permitted the plaintiffs to collect and appropriate the rents from the land. He sent money to the plaintiffs, and continued it so long as their necessities required it. The disputed facts are: The alleged contract and the allegation that the bidding was chilled by reason of said alleged contract or agreement.

The plaintiff Mrs. Fanning testified that her brother, the defendant, promised to buy this land in, hold it until out of the rents he reimbursed himself for the outlay in purchase price and in advancements made to her, whereupon he would turn the land back over to her and her children. To corroborate her testimony there are two letters from the defendant to Mrs. Fanning, the testimony of her son, George, and the testimony of disinterested witnesses to the effect that there was a rumor afloat at the sale that the land was being bid in for Mrs. Fanning and her children. This together with the undisputed facts above mentioned and the testimony as to gross inadequacy of purchase price constituted the proof on the part of the plaintiff upon the question of whether or not the alleged oral contract did exist.

The proof on the part of the defendant upon this point is his denial of the existence of the alleged oral contract. In his testimony he would not deny that such a contract existed in letters he had written to Mrs. Fanning. The plaintiffs do not rely upon a written contract, but merely introduced certain letters of the defendant for the purpose of corroborating the testimony of the plaintiff and used the letters in the cross-examination of the defendant, with the aforesaid results, which to some extent must weaken the defendant's strong denial that such an oral contract existed.

After a careful consideration of the testimony and exhibits, my conclusion is that the alleged oral contract did exist.

After the plaintiffs had argued their case the attorneys for the defendant made a motion for leave to amend their answer by setting up the statute of frauds. This motion is made under section 224 of the Code of Civil Procedure. This section is a limitation upon the power of the court to grant amendments and unless the proposed amendment falls within one of the four classes mentioned in that section ...