Hunt v. Nolen
| Decision Date | 24 March 1896 |
| Citation | 24 S.E. 310,46 S.C. 356 |
| Parties | HUNT et al. v. NOLEN et al. [1] |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county; James Aldrich, Judge.
Action by Amanda C. Hunt and Marie Hunt against W. R. Nolen to foreclose a mortgage, to which J. F. Cleveland was made a party defendant pending the action. From a judgment in favor of plaintiffs for part only of the amount claimed, plaintiffs and defendant Nolen appeal. Reversed.
Bomar & Simpson, for plaintiffs.
Ralph K. Carson and Duncan & Sanders, for defendants.
This action was commenced by the plaintiffs against the defendant Nolen to foreclose a mortgage given for part of the purchase money of the land described in the complaint. J. F. Cleveland was afterwards made a party defendant, as will hereinafter appear. On the 15th day of July, 1889, the plaintiffs executed and delivered to the defendant Nolen a deed of conveyance of 200 acres of land on Fair Forest creek, in the county and state aforesaid, with the usual covenants of warranty. The purchase money of the said tract of land was $4,500, of which sum $2,500, was paid in cash, and the credit portion, $2,000, was secured by the bond of Nolen and a mortgage on the premises sold to him. The bond is dated the 15th of July, 1889, and is conditioned for the payment of the said sum of $2,000 on or by 1st of January, 1890, with interest from its date at the rate of 10 per cent. per annum. On the 13th of January, 1890, Nolen paid $1,400, and has since refused to make any further payment, on the ground that there is a defect in the title, to the extent of 30 1/4 acres, of which he has never had possession, but that the possession is in a third party, holding by a valid subsisting title in fee. The defendant Nolen contends that the loss of this portion of the land not only satisfies the balance due upon the bond and mortgage, but has also damaged him in the sum of $1,000. The issues were referred to the master, who reported upon the same. The case was heard upon exceptions to this report by his honor, Judge Fraser, who after deciding certain issues, recommitted the case to the master to take further testimony. A motion was made before his honor, Judge Wallace, to amend the complaint by making Dr. J. F. Cleveland a party defendant to the action, which motion was refused. His honor, Judge Izlar, after recommitting the case to the master for the third time rendered a decree in the case. Both parties appealed from the aforesaid order and decree. On the 27th of December the supreme court filed its opinion, wherein it was directed that Dr. J. F. Cleveland be made a party defendant, and that the case be remanded to the circuit court for a reconsideration of the questions involved. See Hunt v. Nolen, 40 S.C. 284, 18 S.E. 798. The original complaint was amended, and Dr. J. F. Cleveland made a party defendant. Dr. Cleveland's answer alleges that he is in possession of a part of the land covered by the deed of the plaintiffs to the defendant Nolen, and that he is the owner in fee thereof, and also that he has title by adverse possession; states the sources of his title; and insists that the plaintiffs, and those through whom they claim, are estopped by laches from claiming the land. Plaintiffs interposed an oral demurrer to the answer of the defendant Nolen, and the demurrer was applicable to the answer of the defendant Cleveland. The demurrer was overruled for the reasons stated in the decree of the circuit judge.
It appears that H. H. Thomson, the father of W. W. Thomson through whom the plaintiffs claim, at one time owned 386 acres of land on Fair Forest creek, the larger portion of which was on the west side of the road. In 1852 H. H. Thomson conveyed to one J. W. Wilson, in fee simple, about 50 acres of said land. This parcel has come on down, by regular chain of title, to M. L. Trimmer, who now owns it. In February, 1853, H. H. Thomson, in consideration of $500, conveyed to The land described in this deed was partitioned by the court of common pleas for said county in 1882. The action for partition was brought by J. S. R. Thomson, Esq., as attorney for the plaintiff in that action. The complaint alleged that the children were tenants in common, and seised in fee. All the children of Cynthia Dupreest who were then living, and their assigns, were properly made parties to said proceeding. A writ in partition was issued. The commissioner appraised the land at $750, but reported that it could not be partitioned in kind among the parties in interest without injury. The land was then sold by order of court, for partition, in July, 1882, at which sale Dr. J. F. Cleveland and J. S. R. Thomson were the purchasers. Mr. Thomson assigned his bid to Dr. Cleveland, to whom the sheriff duly executed and delivered a deed, and the title to the land was thereafter duly executed and...
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