Seaboard Air Line Ry. Co. v. Jones

• Decision Date: 28 January 1926
• Docket Number: 11908.
• Citation: 131 S.E. 434,134 S.C. 305
• Parties: SEABOARD AIR LINE RY. CO. v. JONES.
• Court: South Carolina Supreme Court

131 S.E. 434

134 S.C. 305

SEABOARD AIR LINE RY. CO. v. JONES.

No. 11908.

Supreme Court of South Carolina

January 28, 1926

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by the Seaboard Air Line Railway Company against Wilie Jones. From a decree for plaintiff, both parties appeal. Decree modified and case remanded, with directions.

Efird & Carroll, of Lexington, for appellant.

Robert Moorman, of Columbia, for respondent.

PURDY A. A. J.

This is the second appeal to this court in this case. The first appeal was had on an order sustaining a demurrer to the complaint, which order was reversed. 120 S.C 354, 113 S.E. 142. The defendant respondent entered into an agreement on October 3, 1899, whereby he agreed to sell and convey to the Southbound Railroad Company, through which company the plaintiff appellant company claims as successor in interest, a strip of land 50 feet on each side, at right angles to the center of the track or roadbed of the railroad company as the same might be located or established.

In October, 1917, suit was brought by the Cayce Land Company James S. Simmons, and a number of others, against the plaintiff appellant for the possession of said strip of land, and the respondent was vouched to come in and defend the action. At the same time the plaintiff demanded of him a deed of conveyance in proper form, to be executed in accordance with his contract of October 3, 1899.

The allegation of the complaint is that the defendant refused to come in and defend the title, and refused to execute and deliver to the plaintiff a deed of conveyance. It is further alleged in the complaint that the defendant in that action, who is the plaintiff here, being convinced that the claimants were entitled to recover something under their claim of title, decided to compromise the matter by paying to the plaintiffs in that action a certain sum as damages for the detention and possession of the said strip of land by the plaintiff in this action and its predecessors in title, but, before doing so, it entered into an agreement with the defendant in October, 1919, the substance of which is set out in the complaint. The agreement in full is as follows:

"Whereas, the Cayce Land Company and James S. Simons et al., heirs at law of Margaret C. Simons, in October, 1917, commenced an action against the Seaboard Air Line Railway Company for the possession of and for damages for the use as a right of way of a strip of land one hundred (100) feet wide through a tract of fifty-three and one-half (53 1/2) acres of land in said county and state, which was a portion of one hundred six and one-half (106 1/2) acres conveyed to me by R. W. and James Cayce on December 22, 1892, which said strip of land was entered by the railway company under a contract executed by me on the 3d day of October, 1899, in favor of the Southbound Railroad Company;

And whereas, the said defendant railway company has vouched me under a notice of this suit and demanding that I come in and defend the same;

And whereas, it has been brought to my attention that the Seaboard Air Line Railway Company and the plaintiffs in the above-stated action have agreed to settle the claims of the plaintiffs to the said strip of land at the price of one thousand ($1,000.00) dollars, with interest from the date of the said contract; the claim of the plaintiffs being for one half of the value of said strip of land and damages thereto:

Now, therefore, in order that this litigation may be speedily determined, I, Wilie Jones, hereby covenant and agree that in case the Seaboard Air Line Railway Company should ever sue me on a claim by them that I am liable to it for whatever damages it has suffered by reason of said suit under the terms and provisions of the said contract, that in that suit I will not raise any objection to the amount of damages so paid by compromise by the Seaboard Air Line Railway Company; that is to say, that I will accept the amount paid by the said railway company in payment of the claims of the plaintiffs as of the same force and effect as if a verdict and final judgment had been obtained by the plaintiffs therefor; but this agreement is not to be construed in any sense as being an admission on my part of any liability whatever to the Seaboard Air Line Railway Company by reason of the contract of October 2, 1899.

Wilie Jones.

October --, 1919."

The plaintiff in this action demands judgment against the defendant "that he do execute and deliver to the plaintiff the deed of conveyance tendered to him on April 1, 1919, and also for judgment for the sum of $1,000, with interest from the 3d day of October, 1899, and for its costs and disbursements."

The defendant admitted the execution of the agreement in settlement of the alleged claims of the heirs, but alleged that such agreement was in no sense an admission of any liability on his part. He denies that any demand was ever made upon him for the conveyance, or that it was incumbent upon him to make it. He pleads laches and long delay on the part of the plaintiff in asserting its rights, alleging that the same operates as a waiver of such rights. He alleges further that the plaintiff and its predecessor in interest knew the defendant had only a fee defeasible in the strip of land in question, and that the defendant did not generally warrant title to it. He pleads also the bar of the statute of limitations.

The case came on for trial before his honor, Judge Townsend, who rendered the following decree:

"Circuit Decree.

This action now comes before me for hearing on the evidence taken and reported by the master. The contract between the parties has been construed on the former appeal (120 S.C. 354, 113 S.E. 142), as contemplating and requiring a conveyance with the usual covenants of warranty.

Under the evidence I find that plaintiff performed its part of the contract, and conclude that

the plaintiff's rights are now such as are embraced in a deed to the land with the usual covenants of warrants from defendant.

The defendant has offered testimony to show that in making the contract in question he acted merely as a trustee for third party. This is irrelevant, as the written contract sued on created a personal obligation on the part of the defendant (Porter v. Jeffries, 40 S.C. 100, 18 S.E. 229; McDowell v. Reed, 28 S.C. 466, 6 S.E. 300; Moss v. Johnson, 36 S.C. 551, 15 S.E. 709), and I exclude such testimony and evidence from consideration.

The defendant next contends that the plaintiff had notice of the defect in defendant's title, when it paid the purchase money and entered into possession of the land.

The plaintiff's action is based upon the covenants of warranty contained in the written contract, under the construction which has been placed upon it in this action ( Maner v. Washington, 3 Strob. Eq. 180), and it cannot be shown by parol that the defect now complained of was excepted from the covenant of warranty in the written contract (Grice v. Scarborough, 2 Speers, 649, 42 Am. Dec. 391; Hampton Park Terrace v. Sottile, 102 S.C. 347, 86 S.E. 1066). Hence such notice to plaintiff, if proven, would be no defense to this action. It would not amount to waiver of the defect, as the very object of the covenant was to protect against it.

It

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