Rosenbaum v. S-M-S 32, S-M-S

Decision Date18 May 1992
Docket NumberS-M-S,No. 23820,23820
Citation311 S.C. 140,427 S.E.2d 897
PartiesBarbara H. ROSENBAUM, Respondent, v.32, a Georgia General Partnership, Appellant. . Heard
CourtSouth Carolina Supreme Court

Mark H. Lund, III, of Novit & Scarminach, P.A., Hilton Head Island, for appellant.

J. Ray Westmoreland, Hilton Head Island, for respondent.

FINNEY, Justice:

In this action to clear title, the circuit court struck from Appellant S-M-S 32's counterclaim, inter alia, the assertion of an Action of Trespass to Try Title and denied appellant's motion for a jury trial. We affirm.

Respondent Barbara H. Rosenbaum bought the subject real estate, a condominium formerly owned by the appellant, at a Beaufort County tax sale in October, 1989. In December of 1990, respondent instituted this action pursuant to S.C.Code Ann. § 12-61-10, et seq. (1976), seeking a declaration of clear title. See S.C.Code Ann. § 12-61-20 (1976).

Appellant answered by way of general denial and counterclaimed asserting a cause of action for trespass to try title, seeking damages for trespass following its alleged unlawful ouster, and demanded a jury trial. Appellant's counterclaim was based on its contention that the failure of the Beaufort County taxing authorities to follow proper procedures for the levy and sale renders respondent's tax deed invalid.

The circuit judge struck appellant's counterclaim and denied its motion for a jury trial holding that, in an action to set aside a tax deed under Section 12-61-10, et seq., a defendant cannot "earn" the right to a jury trial by asserting a counterclaim for trespass to try title.

On appeal, the appellant alleges the circuit court erred in striking its counterclaim, thereby depriving appellant of its right to a jury trial, recoupment of damages, recovery of possession and clear title to its real property. Appellant argues that its counterclaim did not merely seek cancellation of the tax deed but asserted an action for trespass to try title, an action at law. Citing the holding of this Court in Johnson v. South Carolina Nat'l Bank, 292 S.C. 51, 354 S.E.2d 895 (1987), appellant contends it is entitled to a jury trial on a counterclaim that is legal in nature.

At issue in Johnson v. SCN, supra, was the rescission of a guaranty agreement on the ground of fraud. The plaintiffs sought money damages in causes of action for outrage, invasion of legal rights and breach of fiduciary duty. Pursuant to a defense motion requiring them to elect to proceed "in equity or at law," the plaintiffs elected to proceed on the equitable theory of rescission. The trial judge permitted the remaining causes of action to be maintained in the same complaint and granted a defense motion to transfer the case to the non-jury roster. In summarizing the analysis to determine the appropriate procedure governing such cases, the Johnson court held:

If the complaint is equitable and the counterclaim legal and compulsory, the Plaintiff or the Defendant has a right to a jury trial on the counterclaim.

Id., 354 S.E.2d at 897.

An action to clear title to real property is an action in equity. Van Every v. Chinquapin Hollow, Inc., 265 S.C. 474, 219 S.E.2d 909 (1975); Bryan v. Freeman, 253 S.C. 50, 168 S.E.2d 793 (1969). Trespass to try title involves a determination of title to real property and the resulting rightful possession of such property. Whereas, in a suit for trespass, the focus of the action is the rightful possession of the property at issue. Little v. Little, 223 S.C. 332, 75 S.E.2d 871 (1953).

It is to be noted in the case under consideration that the respondents were proceeding under a specific remedy created by the legislature. Section 12-61-10 provides in pertinent part:

... [A]ny ... person ... which has purchased at or acquired through a tax sale and obtained title to any real or personal property, may bring an action in the Court of Common Pleas of such...

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8 cases
  • Stephen v. Avins Const. Co.
    • United States
    • South Carolina Court of Appeals
    • 11 Septiembre 1996
    ...receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers. Rosenbaum v. S-M-S 32, 311 S.C. 140, 427 S.E.2d 897 (1993). Statutory provisions should be given reasonable and practical construction consistent with the purpose and policy o......
  • City of Camden v. Brassell
    • United States
    • South Carolina Court of Appeals
    • 9 Abril 1997
    ...receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers. Rosenbaum v. S-M-S 32, 311 S.C. 140, 427 S.E.2d 897 (1993). See also Whitner, supra (Court should consider not merely language of particular clause being construed, but word a......
  • Auto Now Acceptance Corp. v. CATAWBA
    • United States
    • South Carolina Supreme Court
    • 3 Septiembre 2002
    ...of statutory construction is for a court to ascertain the intent of the legislature and to give it effect); Rosenbaum v. S-M-S 32, 311 S.C. 140, 143, 427 S.E.2d 897, 898 (1993) (a court should give a statute a practical, reasonable, and fair interpretation consonant with the purpose, design......
  • SCHOOL DIST. TWO v. SC DEPT. OF EDUC.
    • United States
    • South Carolina Court of Appeals
    • 3 Mayo 1999
    ...practical, reasonable, and fair interpretation consonant with the purpose, design and policy of lawmakers." Rosenbaum v. S-M-S 32, 311 S.C. 140, 143, 427 S.E.2d 897, 898 (1993). The State Appropriations Act in question stated: "School districts are required to maintain local salary suppleme......
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