Sale v. Meggett

• Decision Date: 27 April 1886
• Citation: 25 S.C. 72
• Parties: SALE v. MEGGETT.
• Court: South Carolina Supreme Court

25 S.C. 72

SALE v. MEGGETT.

Supreme Court of South Carolina.

April 27, 1886

1. Where a defendant in an equity cause sets up a title to land the subject of the action, which title, if sustained, would defeat the action, he is entitled to a trial by jury of his claim of title; but if the title asserted be not paramount to the title alleged in the complaint, but only incidental thereto, it may be adjudicated by the judge.

2. A purchaser of a testator's land at sheriff's sale under a judgment against the executor, has title paramount to the claim of a prior mortgagee of the devisees, unless such devisees had been in the exclusive possession of the land before the judgment was obtained.

3. Under an allegation of title from a testator by sale under execution against his executor, evidence may be introduced to prove the facts necessary to make such sale operate as a conveyance of the testator's title.

4. In action for foreclosure of a mortgage given by devisees on their testator's land, K. was made defendant, who claimed title paramount under judgment against the executor and a sale thereunder. Held , that K. was a proper party and that the issue of title raised by him should be passed upon by a jury on the law side of the court, and then the matters of equitable cognizance determined by the court, but all in the same case.

5. A party entitled to a jury trial cannot waive it except as provided in section 288 of the Code. There is no such thing as a waiver of jury trial by conduct.

6. When a jury trial is waived in a law case, can the judge refer the case to the master or a referee?

7. The issues in a cause cannot be referred except upon the written consent of the parties.

MR JUSTICE MCIVER dissented as to K.'s right to a jury trial.

Before PRESSLEY, J., Charleston, July, 1885.

This was an action by W. W. Sale, as clerk of the court, to foreclose a mortgage. It was commenced in November, 1881, in Colleton County, and afterwards transferred to Charleston County by order of the court. On motion of plaintiff's attorney, the order of reference, stated in the opinion, was passed, the brief not stating whether the defendant, Klinck, assented or objected, but it would seem that it was done without his knowledge.

Upon the matters considered by this court, the master's report was as follows:

It will be necessary to dispose first of a question which lies upon the threshold of the case. It is claimed by the defendant, Klinck, that he cannot be called upon to meet or answer the allegations of his co-defendant, Susan Meggett, her answer never having been served upon him; that the affirmative relief claimed in her said answer could only be obtained by her filing a cross-bill in the cause, making the proper allegations and prayer for relief, and serving the same on Klinck; that the bringing of the action in the name of a clerk is a covert attempt on the part of the Meggetts to avoid showing their hands; that the effects of the bill and the answer of Klinck is to raise an issue on his plea in bar, viz., that the mortgage cannot be foreclosed against him, being in possession under a paramount title, which issue cannot be tried in a foreclosure suit; and that the bill must be dismissed as to Klinck, and the parties left to their action at law upon the question of title.

If this position be sound, there is of course an end of the case. But it seems to me to be based upon a fallacy. The only point necessary to be determined here is: Was Klinck a proper party to these proceedings? To this question there can, I apprehend, be but one answer. As is said in Cruger v. Daniel, McMull. Eq. , 196, " The tenant in possession of the land is always a proper party to a bill for foreclosure." Of course, if he holds by a paramount title, he can plead it. But in what is Klinck's title " paramount" to that of the mortgagor's? Both claim under the common ancestor, and the judgment is admitted to have been subsequent to the mortgage.

The case of Cruger v. Daniel, supra , really decides this whole point. As was said by Chancellor Harper in that case: " This is not, as suggested, an action to try title in the Court of Chancery. Both parties concur in the title of David Murray, and claim under him, and upon equitable principles the defendant cannot avail himself of any title subsequently acquired. If defendant claimed by a title paramount to that of complainant's intestate, as that David Murray, or any one under whom David Murray claimed, had conveyed to him, or any one under whom he claims, before the mortgage to Charles Murray, he would have had a right to have this question tried at law. But he alleges no such title, and he was bound to allege it if any such existed."

This disposes of Klinck's contention as to his " paramount title." It is true that he alleges his title to be paramount, but the very statement of his claim shows that whatever title he may have was acquired subsequently to the mortgage.

I think it is clear, without multiplying authorities, that Klinck was a proper party, and that his plea in bar must be overruled. As to the question with relation to the regularity of the proceedings under which the judgment was obtained, the defences that might have been pleaded against the note, & c., which are raised in the answer of Susan Meggett, it is sufficient to observe that, whatever their value may be, they cannot properly be raised or considered in the present proceedings. All such defences should have been pleaded by the executor , and the issues raised were concluded by the judgment, which cannot be impeached in a collateral proceeding. Fraser & Dill v. City Council of Charleston , 19 S.C. 384; Huggins v. Oliver , 21 Id. , 147. So far, therefore, as the judgment of Klinck is concerned, its validity cannot be attacked in this case.

All other matters necessary to a proper understanding of the case are stated in the opinion.

Messrs. Rutledge & Young , for appellants.

Messrs. Mitchell & Smith , contra.

OPINION

MR CHIEF JUSTICE SIMPSON.

The purpose of this action was to foreclose a mortgage, executed by the Meggetts, defendants, devisees of James C. Meggett, late of Colleton County, and covering a certain tract of land located in said county. G. W. Klinck, among others, was made a party defendant, because he was in possession of the land, claiming as purchaser at sheriff's sale, under an execution issued on judgment obtained against the executor of the said James C. Meggett, deceased. The plaintiff demanded judgment of foreclosure, that Klinck be required to account for rents and profits, and that the rights of the parties be adjudged. The Meggetts answered, admitting most of the allegations in the complaint, and joining in the prayer thereof; also alleging that Klinck's judgment and execution was null and void and should be set aside. Klinck answered, stating that James C. Meggett during his life-time was indebted to Klinck, Wickenberg & Co., and that after his death his executor gave his promissory note for said debt, amounting to $231.15, as acknowledgment of said debt, upon which judgment had been obtained, and under execution issued thereon he had purchased the land in question, and to perfect his title he had also purchased said land at a tax sale, and now claimed that he was seized in fee, and prayed that he might be dismissed with costs. It was not proved that the answers of the other defendants, or any of the papers in the case except the summons and complaint, had ever been served on Klinck.

The case was referred by his honor, Judge Cothran, to the master to take the testimony and report upon the issues of law and fact involved in the pleadings, with leave to report any special matter. The reference was made on motion of the plaintiff's attorney. The attorneys of the parties, including those of Klinck, appeared at the different references, with evidence and argument. It is stated by the referee that Klinck, through his attorney, objected to being called upon to meet the allegations in the answer of Mrs. Meggett, claiming affirmative relief against him, as said answer had never been served upon him; and also, as he claimed the land by paramount title, that the question of title could not be tried in a foreclosure suit, and that the parties should be left to their action at law upon the question of title. These objections were overruled by the master, and he made his report upon the whole case, stating the facts fully, which will be found in the " Case," concluding with a recommendation that the mortgaged property be sold, the proceeds to be applied to the mortgage after the payment of costs, & c., and that Klinck be decreed to account for rents and profits from November 30, 1881, to be applied to the deficiency of the mortgage debt.

His honor, Judge Pressley, heard this report upon exceptions from Klinck. He decreed that Klinck, claiming as he did a paramount title under a judgment against the executor of defendants' (Meggetts) ancestor, his title was good if the heirs were not in exclusive possession at the time, but bad if they were in such possession, which he held was a question of fact, upon which " Klinck was entitled to a trial at law, which he could not try, though all the facts were before him under the master's report." He therefore " ordered, that the case be dismissed as to Klinck without costs, he being a proper party, but dismissed only on his claim of trial at law. Further, that the remaining parties have leave to apply for such further order as may be necessary for foreclosing said mortgage."

The plaintiff has appealed, denying Klinck's right to a trial by jury, and claiming that the question of title raised by Klinck was a mere incidental question raised in a case of acknowledged...