Opinion
14247
March 6, 1936.
Before DENNIS, J., Chesterfield, May, 1934. Affirmed.
Action by Dr. B.L. Norwood against G.D. Carter. From a judgment for plaintiff, defendant appeals.
The order of Judge Dennis follows:
This cause comes before me upon motion of the plaintiff for judgment upon the report of the special master. The cause, which is an action at law, was commenced by service of summons on September 17, 1932. By consent of the parties, the action was referred to C.L. Hunley, Esq., as special master, to hear and determine all issues of law and fact.
The special master made and filed his report, dated the 8th day of February, 1934, wherein he found and concluded that the plaintiff was entitled to the delivery of the possession of the chattels described in the complaint, or, if such delivery of possession could not be had, judgment against the defendant for the sum of $592.28 with interest at 7 per centum from September 17, 1932, the date of the commencement of the action.
The cause came on before me upon the said report of the said special master and the exceptions of the defendant thereto. On May 24, 1934, I made and filed my decision upon the trial of the issues of the cause, wherein I concluded and adjudged that the proceedings in claim and delivery would not lie for the crops not severed from the freehold, and directed that the complaint be dismissed.
The plaintiff appealed to the Supreme Court from the opinion and judgment of the Court of Common Pleas, and the Supreme Court, in its decision filed June 5, 1935, and reported in 176 S.C. 472, 180 S.E., 453, sustained my conclusion that claim and delivery would not lie for crops not severed from the freehold, but reversed the judgment dismissing the complaint upon the ground that the defendant, by demanding an accounting and giving defendant's replevin bond, thereby estopped himself from pleading that claim and delivery would not lie in this action, and remanded the cause to the Court of Common Pleas for Chesterfield County for further accounting and such further proceedings as should become necessary.
The cause had been fully argued before me by Messrs. Leppard and Leppard, attorneys for the plaintiff, and C. E. Gardner, Esquire, for the defendant.
The account stated by the special master is incorrect in certain particulars and I will endeavor to state an account between the plaintiff and the defendant.
Under the contract, the plaintiff and the defendant were to divide the crops in equal shares. The defendant produced eleven bales of cotton. Pending the action, by consent of the parties, the defendant delivered five bales of the cotton to the plaintiff. The cotton was sold by the special master for the sum of $226.97. By consent of the parties, the special master deducted the sum of $25 from the proceeds of the sales of the said five bales of cotton for his compensation, and the balance of $291.97 was paid to the plaintiff.
The defendant sold six bales of cotton, including the two bales of cotton which had been ginned at the time of the commencement of the action, for the sum of $223.50. These transactions left the defendant in debt to the plaintiff in the sum of $22.53 for the difference between the amount he received and the amount Dr. Norwood received from the proceeds of the sales of the eleven bales of cotton.
The proceeds from the sales of the peach crop amounted to $1,250.44. This is made up of the Vaughn-Griffin account of $1,068.29, the proceeds of culled peaches received by Dr. Norwood in the sum of $166.15, and the sum of $20.00 received by the defendant from the sale of cull peaches. The Vaughn-Griffin Company deducted the sum of $293.23 for crates, sticks, and liners, which items, under the contract, were to be paid equally by the plaintiff and the defendant. This left the sum of $961.21 to be equally divided between the plaintiff and the defendant. Dr. Norwood received the sum of $240.29 in cash from the Vaughn-Griffin Company, $166.15 from the sale of culled peaches, or a total of $406.44. Carter received $280.00 in cash from Vaughn-Griffin Company, $20.00 from his sale of cull peaches, and $244.79 by deduction of Vaughn-Griffin for packing peaches, which item, under the contract, was to be paid by the defendant. The defendant, therefore, received a total of $544.79 from the proceeds of sales of peaches, which was $64.16 in excess of his share, which left him indebted to the plaintiff on that account in the sum of $64.16.
The defendant is also indebted to the plaintiff in the sum of $115.00 for his share of the fertilizers advanced to him by plaintiff.
The defendant is also indebted to the plaintiff in the sum of $189.74 for agricultural supplies advanced to him by C.D. Sowell.
The defendant is also indebted to the plaintiff for his share of the corn, tomatoes, and sweet potatoes which were in his possession at the time of the commencement of the action in the following amounts:
One-half of corn ................................. $ 25.00 One-half of tomatoes ............................. 75.00 One-half of sweet potatoes ....................... 60.00 _______ Total ......................................... $160.00 The foregoing items charged against the defendant are summarized as follows: Balance of Norwood's share of proceeds of cotton . $ 22.53 Balance of Norwood's share of proceeds of peaches. 64.16 C.D. Sowell account of defendant ................. 189.74 Fertilizer account of defendant .................. 115.00 Norwood's share of corn .......................... 25.00 Norwood's share of tomatoes ...................... 75.00 Norwood's share of sweet potatoes ................ 60.00 _______ Total ........................................ $551.43 The crops which were in the possession of the defendant at the time of the commencement of the action and their values are as follows: 11 bales of cotton (receipts from sales) .......... $450.47 100 bu. of corn @ .50 per bu ...................... 50.00 480 bu. of sweet potatoes @ .25 per bu ............ 120.00 300 bu. of tomatoes @ .50 per bu .................. 150.00 _______ Total .......................................... $770.47 However, pending this action, the defendant delivered unto the plaintiff five bales of cotton of the value of $226.97, and this must be deducted from the value of the chattels which the sheriff delivered to the defendant. This leaves the value of the chattels remaining in the defendant's hands the sum of $543.50; therefore, in the claim and delivery action let the plaintiff have judgment for the possession of the property above described or the value thereof, to wit, the sum of $543.50.In the action for an accounting, I find that the defendant is indebted to the plaintiff in the sum of $551.43; therefore, let the plaintiff have judgment against the defendant for the sum of $551.43.
Mr. C.E. Gardner, for appellant, cites: As to unlawful detention of property: 23 R.C.L., 935; 146 S.C. 322; 144 S.E., 66; 47 S.C. 335; 25 S.E., 150; 82 S.C. 196. Right of possession: 24 Cyc., 1470; 62 Ill., 175; 36 C.J. 700; 9 S.E., 135; 98 A.S.R., 959.
Messrs. Leppard Leppard, for respondent.
March 6, 1936. The opinion of the Court was delivered by
The respondent began an action in the Court of Common Pleas for Chesterfield County against the defendant, the appellant herein, the 23d day of September, 1932, which was an action in claim and delivery under which the sheriff of the county seized the property described in the complaint, which property was agricultural crops, all of which were unserved from the freehold, except two bales of cotton; the defendant executed his redelivery bond and thereby received the return of the property. He also answered, denying all of the allegations of the complaint, except 1 and 2, and asked for an accounting. It appears that the respondent was the landlord and the appellant was the tenant or share cropper on the lands of the respondent. The resident Judge of the circuit granted a consent order to C.L. Hunley, Esq., as special master, directing him to hear and determine all the issues of law and fact. He made his report the 8th day of February, 1934, by which he found that the plaintiff was entitled to the delivery of the possession of the property described in the complaint, and if such possession could not be had that the plaintiff have judgment against the defendant for the sum of $402.24, together with the sum of $189.74, the Sowell store account, with interest from September 17, 1932, at the rate of 7 per cent. per annum. May 25, 1934, Judge Dennis granted an order that the master's report be set aside, reversed, and overruled, and that the action be dismissed. Upon appeal to the Supreme Court, this order of Judge Dennis' was reversed in certain particulars and the case was remanded for further proceeding. Upon a trial on the issues raised by defendant's exceptions to the master's report, the Court found and ordered judgment for the plaintiff against the defendant in claim and delivery, for the possession of the property or its value, $543.50. In accounting the Court found and ordered judgment against the defendant in the sum of $551.43. It is from this order the appeal now comes to this Court.
This stipulation appears in the record: "It is hereby stipulated and agreed that the transcript of record on the previous appeal of this action be, and the same are hereby incorporated herein and made a part of this transcript of record as fully and effectually as if they were set out herein pro haec verba."
The defendant's appeal in the present issue turns upon the question whether the Circuit Judge was correct in holding and finding that plaintiff have judgment against the defendant in claim and delivery for the possession of the property described in the complaint, or for the value thereof, to wit, $543.50. The argument turns upon the construction of the opinion of this Court in the former appeal, found in 176 S.C. 472, 180 S.E., 453, 454. The appellant contends that this Court having agreed with the Circuit Judge that the crops unsevered from the freehold were not subject to the process of claim and delivery, it was error for the Circuit Judge to find that so much was due in the process of claim and delivery by the defendant to the plaintiff. But the appellant here overlooks that whilst the Court held, in the former case, that growing crops were not subject to be seized in claim and delivery, it also held:
"But it does not follow from this that the Circuit Judge was correct in dismissing the complaint. The defendant did not demur to the complaint, he did not move to dismiss it, he did not challenge the nature of the proceeding. On the contrary, he recognized its validity, gave bond in replevin, and was given possession of the property. He answered the complaint, and demanded an accounting between him and the landlord. This he has had, and he is found to be in debt to the landlord. Doubtless, he has disposed of the property redelivered to him on the strength of his replevin bond. To dismiss the complaint now is to relieve him of the obligation of his bond; and thus the landlord is left with no source from which to recover the sum found to be due him by the tenant upon the accounting invoked by the tenant.
"We think the defendant has estopped himself to plead that the process of claim and delivery will not lie in this case."
It follows that when the case went back and was heard by the Circuit Judge, he was not in error when he considered the findings of the master in the accounting which the appellant here had asked.
We think there is no error and that the Circuit Judge has rightly disposed of the issues involved. His order is satisfactory to the Court.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.