Harman v. Harman

• Decision Date: 06 January 1899
• Citation: Harman v. Harman, 54 S.C. 100, 31 S.E. 881 (S.C. 1899)
• Parties: HARMAN et al. v. HARMAN.
• Court: South Carolina Supreme Court

31 S.E. 881

54 S.C. 100

HARMAN et al. v. HARMAN.

Supreme Court of South Carolina

January 6, 1899

Appeal from common pleas circuit court of Lexington county; G. W Gage, Judge.

Action by Godfrey Harman and others against James Harman. From an order granting a motion to strike out parts of the answer defendant appeals. Affirmed.

The counterclaim containing the defamatory words referred to in the opinion is as follows: "For a counterclaim against the plaintiffs, the defendant alleges: (1) That on or about the 13th day of May, 1897, the plaintiffs, who had full knowledge of the defendant's rights and interest in the premises mentioned and described in the complaint, wrongfully and wantonly induced one Harriet Harman, of the county of Lexington and state aforesaid, to execute and deliver to them an instrument of writing purporting to be a deed from said Harriet Harman to said plaintiffs to the premises mentioned and described in said complaint, and wrongfully and wantonly caused her to recite in said instrument of writing the following defamatory words, for the purpose of injuring this defendant, under which instrument of writing they now seek to oppress defendant, to wit: 'And whereas, my property consists almost wholly of the real estate hereinafter described, which I have lived upon for many years past with my son James Harman, who has made use of said lands from 1879 to the present time for his sole advantage, receiving during said years all the rents, issues, and profits therefrom arising, and not rendering to me an account for one farthing of the same."'

G. T Graham and P. H. Nelson, for appellant.

Andrew Crawford and Efird & Dreher, for respondents.

GARY A. J.

The above-named plaintiffs brought this action to recover possession of the tract of land described in the complaint, and for rents and profits, of the alleged value of $1,000. The defendant admitted that he was in possession of said land, but denied each and every other allegation of the complaint. The defendant also set up in his answer seven defenses and a counterclaim. The plaintiff's made a motion to have the answer made definite and certain by striking out the counterclaim and certain allegations of the defenses, on the ground that they were irrelevant. The presiding judge granted an order that the answer be made definite and certain by striking out the counterclaim, and the allegations of the answer contained in said order.

The defendant appealed upon exceptions, the first and second of which are as follows: "(1) Because his honor erred in holding that the allegations of paragraph 3 of the defendant's answer 'cannot affect the issue in this cause, to wit, who is the legal owner of the land described in the complaint?' and in holding that said paragraph 3 was irrelevant; and it is respectfully submitted that his honor erred, as a matter of law, in striking out paragraph 3 of the defendant's answer, which paragraph reads as follows: 'That he is owner in fee of a certain tract of land near the lands described in the complaint herein, which he was about to sell on or about the ___ day of ___, 1884 but which he did not sell, on account of the request of his mother not to do so, as she did not wish him to leave her, and the said land was convenient to the lands which he would receive from her.' (2) That his honor erred in not holding that the allegations of paragraph 3 of the defendant's answer were relevant to the issue in said case, and that, plaintiffs having taken a deed of the land in controversy knowing that the defendant was in possession thereof, and having full knowledge and notice of the rights of defendant when they took the deed, which is manifest from the deed itself, said plaintiffs took subject to all equities of the defendant; and he erred, as a matter of law, in not holding that paragraph 3 of said answer was relevant and responsive to the issues in said case." The foregoing words constitute the entire allegations of the defendant's third defense. In Pom. Code Rem. § 716, it is said: "The rule, as stated in its general form, is that each defense must be sufficient in itself, in its material allegations or its denials, to constitute an answer to the cause or causes of action against which it is directed, and thus to defeat a recovery thereon. This proposition refers to the substance of the defense. In reference to the form and manner of stating this substance, it must either, by actual statement in full, or by a proper reference to, and adoption of, matter in another defense found in the same answer, contain averments of all the material facts or denials which together make up the defense. Each must, in its composition, be complete, sufficient, and full. It must stand on its own allegations. It cannot be aided, or its imperfect and partial statement helped out, by matter found in another defense, unless such matter is expressly referred to, and in an express manner adopted or borrowed from that other, and made a part of itself. The reference, however, to the former defense, and the adoption of its matter, if permitted at all, must be express; for otherwise the allegations of one cannot be treated as incorporated in, or helping out, those of another. This rule is well settled by the authorities, although often disregarded in practice." See, also, Hammond v. Railroad Co., 15 S.C. 10. The allegations of the third defense are insufficient within themselves, and it was not error on the part of the circuit judge to...