Salinas v. C. Aultman & Co.

• Decision Date: 01 October 1895
• Citation: 22 S.E. 889,45 S.C. 283
• Parties: SALINAS et al. v. AULTMAN & CO.
• Court: South Carolina Supreme Court

22 S.E. 889

45 S.C. 283

SALINAS et al. v. AULTMAN & CO.

Supreme Court of South Carolina

October 1, 1895

Appeal from common pleas circuit court of Abbeville county Buchanan, Judge.

Action by A. J. Salinas & Sons against C. Aultman & Co. for betterments. From a judgment of nonsuit, plaintiffs appeal. Reversed.

Frank B. Gary and Samuel C. Cason, for appellants.

Graydon & Graydon, for respondent.

WATTS J.

This is an action for betterments, which was heard on the circuit by Judge Buchanan and a jury at the January term of the court of common pleas for Abbeville county, 1895. For a proper understanding it is necessary to review the facts upon which the claim is founded. One F. M. Pope, being indebted to C Aultman & Co. and others in a large amount, mortgaged a house and lot in the town of Ninety Six to one G. W. Connor on the 1st day of February, 1884. On the 7th day of December, 1886 the said Pope conveyed the premises to the said Connor. On the 26th day of October, 1887, Connor conveyed to Mrs Elizabeth M. Pope, wife of said F. M. Pope. On the same day Mrs. Pope conveyed the premises to Mrs. Mattie S. Utsey, who went into possession, and made improvements thereon. On the 24th day of January, 1888, Mrs. Utsey mortgaged the premises to A. J. Salinas & Sons, which mortgage was sued to judgment for foreclosure at the October term of the court of common pleas for Abbeville county, 1891. On the 6th day of January, 1892, the master sold the premises under said judgment for foreclosure, and A. J. Salinas & Sons became the purchasers, and received the master's deed of conveyance. Pending the litigation, Mrs. Utsey died, in March, 1891, and her heirs at law were made parties to the action. In the meantime C. Aultman & Co. had sued to judgment their claims against the said F. M. Pope. Execution was issued and levied on the said house and lot as the property of the said F. M. Pope. The premises were sold in September, 1889, C. Aultman & Co. becoming the purchasers, and receiving sheriff's title. After this C. Aultman & Co., alleging fraud, both actual and constructive, brought an action to set aside the deeds executed by Pope to Connor, by Connor to Mrs. Pope, and by Mrs. Pope to Mrs. Utsey. During litigation, A. J. Salinas & Sons, having the master's deed, and being in possession of said house and lot, intervened by petition, and were made parties defendant to the action. In their answer as defendants to the suit they set up title and a claim for betterments; in other words, they claimed the benefit of the improvements placed upon the premises by Mrs. Utsey during her ownership, in the event their title failed them. This litigation ended in favor of C. Aultman & Co., and the claim of A. J. Salinas & Sons for betterments was not sustained in that action. Aultman v. Utsey, 41 S.C. 304, 19 S.E. 617. Within 48 hours after the case of Aultman v. Utsey, supra, had terminated on the circuit, this action was begun. On the call of the case the defendant filed a plea to the jurisdiction of the court, on the ground that the question of betterments was res judicata. The court overruled the plea, and the defendant filed the following exceptions: "(1) Because it was error to overrule defendant's plea to the jurisdiction of the court, because it appears from the decree of his honor, Judge Izlar, who heard the case on circuit, and from the opinion and judgment of the supreme court, that the question of betterments had already been determined against the said A. J. Salinas & Sons. (2) Because the question was res judicata, and his honor erred in not so holding." The exceptions are the same in substance, and may be considered together.

The case of Aultman v. Utsey, 41 S.C. 403, 19 S.E. 617, was heard by Judge Izlar on the circuit. In his decree he uses the following language: "The claim set up in the answer of A. J. Salinas & Sons is not for the improvements and betterments made by them, but for those made by Mattie S. Utsey. Such claim, as I understand the statute, cannot be made in the answer of defendants. If the improvements and betterments made upon lands by those under whom the defendants claim can be recovered at all, it must be by direct action, after final judgment in favor of the plaintiffs in an action to recover the lands and tenements, as provided for in sections 1835, 1839, Gen. St." The circuit judge not only refused to pass upon the question of betterments, but he refused to consider the question, because it had been improperly presented to the court, and he indicated in what manner the question must be raised,--"by direct action, after final judgment in favor of the plaintiff in an action to recover the lands and tenements as provided in sections 1835, 1839, Gen. St." On appeal the circuit judge was sustained. Justice McGowan, as the organ of the court, said: "Exception 7 imputes error to the circuit judge in holding that A. J. Salinas & Sons were not entitled to betterments. The defendants do not claim that they placed any improvements on the house, but are claiming compensation for improvements put upon the land by Mrs. Utsey, who mortgaged it to them before they had any pretense of title to the lot. Under the circumstances, we do not think the judge committed error in refusing the claim." The exceptions are overruled.

Before the cause went to trial, defendant, C. Aultman & Co., filed a demurrer to the complaint "on the ground that the complaint does not state facts sufficient to constitute a cause of action." After argument, the circuit judge overruled the demurrer, and the defendant filed the following exceptions: "(1) Because it was error in the presiding judge to hold that the complaint states facts sufficient to constitute a cause of action, when it failed to state that the plaintiffs put any improvements or betterments on the land recovered from them. (2) Because it appears on the face of the complaint that the plaintiff did not purchase the land from any one having title to said property, but, on the contrary, purchased the same on a master's sale under a mortgage given to other parties; and it was error not to hold that the complaint did not state facts sufficient to constitute a cause of action. (3) Because the betterment law makes no provision for any one to recover betterments except a defendant who may have made improvements in good faith himself, and it was error in the presiding judge to hold that the plaintiff herein could, under any circumstances, recover betterments." As the first and third exceptions raise but one issue, they will be considered together. Does the law of betterments make provision for any person other than the defendant who makes the improvements? Section 1952, Rev. St (section 1835, Gen. St.), is as follows: "After final judgment in favor of the plaintiff in an action to recover lands and tenements, if the defendant or those under whom he claimed purchased the lands and tenements recovered in such action, or took a lease thereof, supposing at the time of such purchase such title to good in fee, or such lease to convey and secure the title and interest therein expressed the defendant shall be entitled to recover of the plaintiff in such action the full value of all improvements made upon such land by such defendant or those under whom he claims, in the manner herein after provided." The present action is brought under this section, after a strict compliance with the requirements of the law. From the language of the section it is clear that not only a defendant who made improvements supposing that he had a good title in fee at the time of the purchase, but a party claiming under such defendant, is entitled to the protection of the betterment law. But it is argued that the act of 1885 (19 St. p. 343; sections 1957, 1958, Rev. St.) is antagonistic to this view. Argument is unnecessary when authority can be cited. In McKnight v. Cooper, 27 S.C. 92, 2 S.E. 842, the court said: "The first act [Rev. St. §§ 1952-1960; Gen. St. §§ 1835-1841] provides for the recovery by the improving tenant of the value of such improvements as he or those under whom he claims may have erected, upon the condition, however, that he believed at the time of his purchase of the premises that he had obtained...