Holly Hill Lumber Co. v. McCoy

• Decision Date: 08 December 1945
• Docket Number: 15786.
• Citation: 36 S.E.2d 140,207 S.C. 428
• Parties: HOLLY HILL LUMBER CO., Inc., v. McCOY.
• Court: South Carolina Supreme Court

36 S.E.2d 140

207 S.C. 428

HOLLY HILL LUMBER CO., Inc., v. McCOY.

No. 15786.

Supreme Court of South Carolina

December 8, 1945

M W. Seabrook, of Sumter, for appellant.

T. B. Bryant, Jr., of Orangeburg, for respondent.

BAKER Chief Justice.

The history of this litigation may be obtained from reading the following cases: Holly Hill Lumber Co., Inc., v McCoy,201 S.C. 427, 23 S.E.2d 372;Id., 203 S.C. 59, 26 S.E.2d 175, 148 A.L.R. 285;andId., 205 S.C. 60, 30 S.E.2d 856.

The present, and incidentally the fourth, appeal in this case stems from an attempt on the part of the respondent, Holly Hill Lumber Company, Inc., to establish damages against an appeal bond to stay execution under Section 788 of the Code given by the appellant, Addison E. McCoy, on the second appeal, the opinion on that appeal being reported in 203 S.C 59, 26 S.E.2d 175, 177, 148 A.L.R. 285.

The second appeal was from an order of the Circuit Judge in which this appellant was ordered 'to make and execute his deed in usual form in favor of the Plaintiff covering the premises described in the complaint within ten (10) days from notice of the filing of this Order, whether by personal service or service by mail, as agreed upon at the hearing referred to, upon the payment to him of five-sixths of the purchase price less Ten ($10.00) Dollars, the amount heretofore paid him, and upon delivery to him of a bond in writing executed by the Plaintiff in the sum of Sixteen Hundred and Sixty-six & 67/100 ($1666.67) Dollars, secured by mortgage of the premises in question, payable to the Defendant and conditioned to pay to the Defendant interest thereon at the rate of six per cent. per annum on said sum, payable annually, so long as Defendant's wife lives; and upon her death, while the defendant still lives, that it will pay the said sum to the Defendant.

'And further, that in the event the said wife survives the defendant, the Plaintiff will, upon death of Defendant, pay the said sum to his wife with any accrued interest; otherwise, said bond to be in usual form.'

That appeal resulted in the case being remanded to the Common Pleas Court for the purpose of bringing in the wife of the appellant McCoy as a party to the action, and affording her 'an opportunity to be heard, both as to the value of the property and as to the basis of computation of her inchoate right of dower therein.'And in remanding the case, this Court stated:

'We recognize that the suggested procedure will prolong this litigation, and perhaps give rise to an opportunity to defeat the decree of specific performance by establishing a value for the property in question which might give the inchoate right of dower a value so far in excess of the proportionate part of the contract price as to deprive the respondent of the benefit of its contract.That, however, is a problem with which we have no power to deal. * * *'

Following proceedings had in the Court of Common Pleas in accord with said opinion, it was on January 7, 1944:

'Ordered, Adjudged and Decreed that the plaintiff is entitled to a deed to the premises forthwith, upon the payment of the purchase price of $10,000.00, less $10.00 already paid; further that the inchoate dower right of Mrs. Sara S. McCoy is adjudged to be 1-6 of the value of the land, which is $10,000.00, to be secured to be paid to her out of the purchase money, if and when she survives her husband; and that she shall forthwith renounce her dower in and by the deed to the premises upon the execution of the security to her of said 1-6 interest amounting to $1666.67, as more fully provided herein.

'It is further Ordered, Adjudged and Decreed that the grantor is entitled to...