Scarbor. v. Woodley

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WOODS
• Citation: 81 S.C. 329,62 S.E. 405
• Parties: SCARBOROUGH. v. WOODLEY.
• Decision Date: 17 September 1908

62 S.E. 405
81 S.C. 329

SCARBOROUGH.
v.
WOODLEY.

Supreme Court of South Carolina.

Sept. 17, 1908.

1. Estoppel—Pleading as Defense—Sufficiency of Allegations.

Allegations in the answer in an action to recover land that defendant bought land from plaintiff and plaintiff's mother, and though he was present when the survey was made, and knew the land claimed was included therein, did not object, and that defendant subsequently cleared a part of the land without objection from the plaintiff, were insufficient to establish an estoppel, there being no allegation that defendant was misled by plaintiff's conduct, or that plaintiff at the time had any knowledge of his own claim, as silence and inaction, without positive encouragement or actual participation in the transaction, will not constitute an estoppel.

[Ed. Note.—For cases-in point, see Cent. Dig. vol. 19, Estoppel, § 302.]

2. Pleading — Amendments — Ineffectual Amendments.

Where a proposed amendment to the answer would not have cured the defect therein, it was properly refused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 802.]

3. Same—Demurrer—Effect of Sustaining Demurrer.

The effect of sustaining the demurrer to defendant's plea of estoppel was to leave the answer as if the estoppel had not been pleaded, since it was unnecessary to specially plead it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 568.]

4. Estoppel — Pleading — Necessity of Pleading.

It is unnecessary to plead estoppel in an action to recover land, and defendant could introduce evidence of estoppel under a general denial and have the issue submitted to the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Estoppel, § 300.]

5. Trial—Instructions—Withdrawing Defenses—Estoppel.

In an action to recover land, where a demurrer was sustained to defendant's plea of estoppel, an instruction that the court had struck out the plea of estoppel, and it was not before the jury for consideration, and had not been established by the evidence for that reason, took from the jury the issue of estoppel, and hence was error, as defendant was entitled to have the evidence of estoppel considered, though the demurrer was sustained to his plea.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 613-623.]

6. Same—Cure by Subsequent Instruction.

In an action to recover land, where a demurrer was sustained to the defendant's plea of estoppel, an instruction that the plea of estoppel had been stricken and was not before the jury for consideration was not cured by a subsequent instruction that if plaintiff stood by for years without objection, and saw defendant improve the land under the belief that he had good title, plaintiff will be estopped.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§...