Sullivan v. Jones, CASE No. 952.

• Decision Date: 13 December 1880
• Docket Number: CASE No. 952.
• Citation: 14 S.C. 362
• Parties: SULLIVAN v. JONES.
• Court: South Carolina Supreme Court

14 S.C. 362

SULLIVAN

v.JONES.

CASE No. 952.

Supreme Court of South Carolina.

Dec. 13th, 1880.

1. Grounds of appeal which complain of omissions by the Circuit judge to charge upon points not brought to his attention during the trial, are not properly before this court for consideration.

2. One claiming property in millstones under the terms of the agreement made with the owner of the mill when the stones were put there, is not estopped from asserting his claim by reason of a lease made with a subsequent owner of the mill and lands adjacent, binding him to pay as rent, one-fourth of the crops made on the farm, and one-third of the toll taken at the mill, the owner to pay half of the expenses of the mill, and possession to be surrendered at the end of the year-the testimony showing that both before and after this lease, the millstones were treated as distinct from mill-house and water-power.

3. Millstones put by a stranger into a mill-house, under agreement with the owner of the mill that they may be removed at pleasure, do not become a part of the freehold.

4. And such agreement may be proved in an action brought by a subsequent owner of the mill against the owner of the millstones, affecting the ownership of such stones.

Before PRESSLEY, J., Greenville, November, 1879.

Action by Hewlet Sullivan to recover $150 from John R. Jones, for an alleged trespass in taking and carrying away certain millstones, of the value of $100. Defendant took the millstones from plaintiff's mill, without injury to the freehold. The case is stated in the opinion.

The plaintiff appealed upon the following grounds:

1. Because his Honor erred in refusing to hold that the rental obligation of John R. Jones, defendant, to Hewlet Sullivan, plaintiff, for the mill, said obligation dated May 4th, 1875, estopped the defendant from setting up any claim to mill, millstones, or any appurtenances thereto.

2. Because his Honor erred in not holding that as the millstones were part of the freehold, that defendant had no right to remove the same, to the injury of the plaintiff.

3. Because his Honor erred in permitting defendant to prove an agreement with Messrs. Hughes that he was to have an interest in said mill and appurtenances, when the property was sold as the property of William McNeely and bought by the plaintiff as judgment creditor of William McNeely.

There were four other grounds alleging error in not charging certain propositions of law.

Mr. J. C. C. Featherston, for appellant.

Mr. George Westmoreland, contra.

The opinion of the court was delivered by

MCIVER, A. J.

This was an action to recover damages for a trespass alleged to have been committed by the defendant in taking and carrying away certain millstones from a mill-house on the land of the plaintiff. The defence was that the millstones were the property of the defendant and were taken by him under an agreement made with a former owner of the land at the time the millstones were placed in the mill-house.

The testimony tended to show that the land upon which the mill-house was located originally belonged to one William McNeely, who conveyed it to G. T. Hughes by deed dated May 26th, 1866, which deed was not recorded. G. T. Hughes, on January 22d, 1867, conveyed to T. J. and G. T. L. Hughes by a deed of that date, which was duly recorded. Soon after the purchase by these last-named purchasers they entered into an agreement with the defendant and his brother, James H. Jones, whereby the Messrs. Jones were “to furnish the millstones and fixtures thereto and put the mill in running order; that the Messrs. Hughes were to furnish the mill-house and water-power,” and the proceeds of the mill were to be equally divided. It was also agreed that “the millstones and fixtures were to be and to remain the separate property of the Jones', and if at any time the business of grinding should become unprofitable, or should the parties disagree, the Jones' were at liberty to enter and remove said stones and fixtures. Under this agreement said stones and fixtures were put in said mill-house by the Jones'.'DDD' The plaintiff having subsequently obtained a judgment against McNeely, the land was sold by the sheriff under it, and bought by the plaintiff in January, 1874. At this sale public notice was given that the millstones and fixtures on said land were the property of the Jones', and that whoever bought the land would buy subject to their claim; but so far as appears from the “case” no controversy was raised as to the title to the land. When the defendant was offered as a witness to prove the agreement above referred to between himself and brother and the Messrs. Hughes, the plaintiff objected to his testifying upon that point, “on the ground that his rental agreement with the plaintiff, in which he agreed to pay Sullivan rent for the use of the mill, estopped him.”

The agreement referred to as an...