Knight v. Stroud

• Decision Date: 04 February 1948
• Docket Number: 16039.
• Citation: 46 S.E.2d 169,212 S.C. 39
• Parties: KNIGHT et al. v. STROUD et al.
• Court: South Carolina Supreme Court

46 S.E.2d 169

212 S.C. 39

KNIGHT et al. v. STROUD et al.

No. 16039.

Supreme Court of South Carolina

February 4, 1948

George K. Laney, of Chesterfield, for appellants.

James E. Leppard and William P. Gulledge, both of Chesterfield, for respondents.

BAKER, Chief Justice.

This is an action at law for recovery of possession of real estate claimed by respondents as Executor and Executrix respectively, of the last will and testament of W. S Huggins, who they allege was, at the time of his death seized and possessed of the lands described, it being further alleged that by the terms of the will they were directed to sell the land and distribute the proceeds in accord with instructions therein contained. The appellants, it is alleged, after the death of W. S. Huggins, entered upon the premises, and have unlawfully withheld possession thereof.

Appellants answered denying the material allegations of the complaint alleging that 60 acres of the tract of land described was by the testator given to the appellant, Nealie Stroud, the daughter of the said W. S. Huggins, by parol gift, it being alleged that W. S. Huggins moved her upon the place, put her in possession of it, and that she, with her family, has lived there ever since and has made valuable improvements thereon.

The action was docketed on Calendar No. 1, and called for trial before Honorable J. Woodrow Lewis, Judge of the Fourth Circuit, while holding a special term of the Common Pleas Court for Chesterfield County, commencing June 30, 1947 whereupon the attorney for respondents (plaintiffs below) moved that the issue as to parol gift, raised by the answer be transferred to the Court of Equity. The learned trial Judge ordered that the equitable issue of parol gift of real estate set forth in the answer be referred to the Master for Chesterfield County of take and report the testimony, with leave to report upon any special matter. The appellants (defendants below) have appealed from said order, and the substantial issue raised is the right of the Circuit Judge to order a compulsory reference of the issue of parol gift. An unusual feature of this appeal is that the respondents, having brought an action at law for recovery of possession of the real estate involved, were the moving parties in having the matter referred to the Master, and the appellants, who had raised the issue of the parol gift, the objecting parties thereto.

The appellants take the position that the question as to what constitutes a gift is a question of law, and on the facts in a particular case it involves a mixed question of law and fact; and that it is the province of the...