Scarborough v. Woodley
| Decision Date | 17 September 1908 |
| Citation | 62 S.E. 405,81 S.C. 329 |
| Parties | SCARBOROUGH v. WOODLEY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; J. C Klugh, Judge.
Action by James H. Scarborough against J. M. Woodley. From a judgment for plaintiff, defendant appealed. Reversed, and remanded for a new trial.
Lee & Morse, H. D. Morse, and R. W. Shand, for appellant.
L. D Jennings, for respondent.
The plaintiff recovered judgment against the defendant for the possession of two acres of land. The complaint was in the usual form. The first defense was a general denial, and the third defense related to betterments. Neither of these are involved in the appeal. For a second defense the defendant undertook to plead estoppel, alleging that he bought from Gertrude C. Scarborough, plaintiff's mother, a tract of land which was surveyed under the supervision of W. D Scarborough, plaintiff's father, and by his direction the two acres in dispute were included in the survey and in the deed; that the plaintiff came up while the survey was in progress, and, though he was made aware of the purpose to include the two acres in the survey and sale, he made no objection; that the defendant cleared up a portion of the two acres, and brought it into cultivation, and, though the plaintiff frequently drove by the defendant's plantation, he gave no intimation of his claim to the land.
The circuit judge was right in sustaining a demurrer to the second defense of estoppel. The attempt to state this defense was fatally defective in two particulars: First, there was no allegation that defendant was misled by the conduct of plaintiff-not even a direct allegation that he supposed Mrs. Gertrude C. Scarborough, his grantor, was the owner of the land in dispute; second, there was no allegation that plaintiff at the time had any knowledge of his own claim. Silence and inaction, such as alleged here, without positive encouragement or actual participation in the transaction, which is not alleged, does not constitute estoppel. Chambers v. Bookman, 67 S.C. 432, 46 S.E. 39. The first defect would have been cured by the amendment proposed; but the circuit judge properly refused to allow the amendment, because the second fatal defect would have still remained, and the amendment would have been of no benefit.
The effect of sustaining the demurrer, however, was to leave the answer just as it would have been if no attempt had been made to plead estoppel. It is not necessary in this state to plead...
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