Opinion
14488
May 27, 1937.
Before GRIMBALL, J., Chesterfield, February, 1937. Appeal dismissed.
Suit in equity by the Town of Cheraw against Sara Caulder Turnage and others. From a decree overruling defendants' demurrers to the complaint, the defendants appeal.
The decree of Judge Grimball follows:
This is a suit in equity brought by the Town of Cheraw to foreclose the lien of certain street paving and sidewalk assessments upon a lot within the town. The defendants, Sara Caulder Turnage and Eva Caulder Franklin, demurred to the complaint, as did the defendant, Mamie D. Powe, and Mamie D. Powe, as guardian ad litem of the infant defendants, H.L. Powe, Jr., and Mary Elizabeth Powe.
While presiding at Chesterfield, it was arranged that I hear the arguments on the demurrers at Cheraw. At the hearing, the plaintiff was represented by Samuel Want and P.A. Murray, Jr., Esquires; the defendants, Sara Caulder Turnage and Eva Caulder Franklin, were represented by R. E. Hanna, Esquire; and Mamie D. Powe, and Mamie D. Powe, as guardian ad litem, were represented by John D. Nock, Esquire.
The demurrers interposed raise a number of questions which present, in general, the following contentions: (1) A paving assessment lien cannot be foreclosed by a suit in equity, and can be enforced only by the procedure provided for the enforcement of taxes; (2) the enforcement of the lien in this case is barred by limitations; (3) the equity of redemption of the owners of the property cannot be barred in this proceeding, as sought by the plaintiff, nor can any outstanding dower rights on the part of any of the defendants be barred herein; (4) the proceeding is in personam and not in rem. and therefore the rights of the nonresident defendants and of the defendants who acquired the property against which the assessment is claimed after the assessment was imposed cannot be affected by any decree made in this cause; (5) the imposition of the assessment, and the attempted enforcement thereof are in violation of the Constitution of the United States and of the Constitution of South Carolina; (6) the attempt herein to collect interest on the assessment is an attempt to collect penalties in violation of Article 10, § 13, of the Constitution of South Carolina, and of Section 2830 of the Code.
In dealing with the questions thus presented, it may be observed at the outset that while public authorities seeking to enforce assessments for public improvements, like those undertaking to enforce the payment of taxes, must proceed in strict accordance with the law in all essential matters affecting the rights of the persons concerned, still they should not be deprived of any efficacious means of enforcement by a strained construction of the law. It should be considered as of the essence of the sovereign power which may impose assessments for public improvements that the remedies shall be at least coequal with those available to private litigants, so long as no specific constitutional or statutory inhibition is impinged.
Independently of any technical considerations that may be presented by the demurrers, a suit in equity to foreclose a paving assessment lien is not only more effective in providing an acceptable title, but is also a fairer proceeding to the property owner and to the municipality alike. The procedure involved under the tax statutes, which the demurrants insist is the only procedure available for the enforcement of a paving assessment, involves summary action against the persons interested in the real estate affected without opportunity to be heard, and entails the risk that outstanding interests in the property may not be adequately protected from the standpoint of the owners, or adequately impounded from the standpoint of the possible purchaser of the property at the sale; on the other hand, a foreclosure proceeding brings into Court every person who, according to the records and the knowledge of the moving parties, has any interest in or claim upon the property affected, enabling every such party to present and defend his status and claim in an orderly manner, under established judicial procedure, and finally provides a title which the public may accept with some substantial measure of confidence. The interests of the municipality and of the property owner alike are gravely affected by the unsatisfactory character of the title that would be obtained through a sale under the tax procedure; on the other hand, the present procedure gives the municipality and the property owner alike the benefits that must be held to have been intended to be afforded through the enforcement of the lien in such manner that the public will feel no restraint in bidding upon property sold to enforce the lien.
In ordinary tax sales these considerations are not of such vital importance, for the amount of the taxes for which property is sold is usually a very small proportion of the value of the property. The purchaser frequently gets a real bargain at a tax sale, regardless of the character of his title. In the case of paving assessments, however, the amount of the lien is in the aggregate very substantial, and represents a considerable proportion of the value of many of the properties affected. To deprive the municipality of a means of giving a marketable title to property sold for the enforcement of such a lien is practically to destroy one of the most essential elements of the value of the lien.
And in this connection it is pertinent to take into consideration the fact that paving assessment liens have a vital place in public financing, and that any serious impairment of the effectiveness of such lien from the standpoint of enforcement will greatly effect municipal financing throughout the State. On the facts admitted before me at the hearing, it appears that the Town of Cheraw, like other municipalities, carried out its paving program by selling bonds secured by the paving assessment liens. The law expressly contemplates that this will be done in the average case (Code 1932, § 7378) and, if it is to be announced as the law in this State that the security behind such bonds is seriously impaired by the lack of adequate means of enforcing payment of the assessment liens, it may as well be understood that hereafter the capacity of municipalities to engage in paving projects through the sale of bonds secured by the paving assessments will be seriously impaired. From a premier security, readily marketable at a low rate of interest, such bonds will be reduced to the rank of the most questionable obligations. For it must not be overlooked that such bonds are sold without reference to the constitutional debt limits and that, though they carry the general credit of the municipality, it is not intended that they shall be paid otherwise than out of the collection of paving assessments.
Bearing in mind these preliminary considerations, the first question to be considered is the jurisdiction of a Court of equity to entertain a suit to foreclose an assessment lien.
While provision for the lien is made in the general statutes of the State and in a local statute, hereinafter referred to, the basis of authority for creating the lien is in the Constitution itself. Prior to 1915, there was no general constitutional authority for the imposition of liens for the purpose of paying for paving improvements. From time to time various municipalities procured the enactment of constitutional amendments covering their own local situations, but it was not until 1915 that a State-wide provision was enacted. In that year an amendment which now appears in the Code as Article 10, § 17, of the Constitution, was ratified. The language of this amendment is as follows: "The General Assembly may authorize the corporate authorities of any or all incorporate cities and towns in the State to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets and sidewalks immediately abutting such property: Provided, That said improvements be ordered only upon the written consent of two-thirds of the owners of the property abutting upon the street, sidewalk, or part of either, proposed to be improved, and upon condition that said corporate authorities shall pay at least one-half of the cost of such improvements."
This constitutional provision is self-executing. The legislation referred to below was wholly unnecessary as far as creating the right to impose paving assessments within the terms of the provision quoted. Beatty v. Wittekamp, 171 S.C. 326, 172 S.E., 122.
It will be observed that although this constitutional provision gave to municipalities the power to impose paving assessments, no provision was made for the enforcement of the liens thereby created. Hence, upon well-settled legal principles, assessments levied under the provisions of the Constitution would have been enforceable in equity, by way of foreclosure, as the only effectual remedy. 37 C. J., 340, 341; 3 Pom. Eq. Jur. (4th Ed.), § 1268; 1 Pom. Eq. Jur. (4th Ed.), § 167 (c) note; 1 Pom. Eq. Jur. (4th Ed.), § 297 (b) note.
In 1915 the General Assembly took cognizance of the passage of the constitutional provision, and enacted the statutory provision which is now Section 7374 of the Code. The language of this statute adds nothing to the constitutional provision, as far as the present controversy is concerned, but for convenience is here quoted in full: "Any or all incorporated cities and towns of this State are hereby authorized and empowered to provide by ordinance for the payment of the cost of the permanent improvements of their streets and sidewalks by levying upon the owners of property immediately abutting on the streets and sidewalks, or parts of either, so improved an assessment in proportion to the frontage only of such property on such streets or sidewalks, or parts of either, so improved of not exceeding in the aggregate one-half of the cost of such improvements: Provided, That no assessment shall be so laid upon the abutting property owners until such improvements have been ordered pursuant to such ordinance upon the written consent, signed and filed with the city or town clerk, of not less than two-thirds in number of the owners of the property abutting upon street, sidewalk, or part of either, proposed to be improved, and provision made for the payment by the corporate authorities of said city or town of not less than one-half of the costs of such improvement; times and terms of payment and rates of interest on deferred payments of assessments by such property owner shall be such as may be prescribed by ordinance."
No remedy for the enforcement of the lien having been provided by this Act, the municipality would have had the right, as above indicated, to proceed under it in equity, just as would have been the case had no statute on the subject been enacted.
The situation remained unchanged, in respect to the absence of any provision in the statutes prescribing any method of enforcing the lien, until 1919, when the General Assembly enacted the provision which is now incorporated in the Code as Section 7376. This statute provides that "the assessments so laid shall constitute and be a lien upon the property so assessed, and payment thereof may be enforced as the payment of city or town taxes is enforced." Under this provision, it is of course apparent that a paving assessment lien may be enforced by the levy of an execution and a sale in accordance with the procedure relating to taxes. But the language of the statute is permissive, not mandatory. With full knowledge on the part of the lawmaking body that under the Constitution and the 1915 statute passed in pursuance thereof the remedy for the enforcement of the lien was in equity, the Legislature provided the additional remedy of an execution sale. The statutory remedy is thus properly described as additional or cumulative, or alternative, within the language of the authorities on this subject.
"The general rule applies whether the pre-existing right or liability is one previously enforcible at Common Law, or by virtue of some other statute or constitutional provision: and whether it was previously enforcible at law or in equity; and notwithstanding the new remedy may be preferable or more efficient than the old one. The general rule also applies to remedies of the maritime law." (Italics added.) 1 C.J. S., Actions, § 6, p. 976; 1 Am. Jur., Actions, § 12.
In the case of Petition of State ex rel. Hutchinson (Carroll v. Pacific Mutual Life Insurance Company), 182 S.C. 369, 189 S.E., 475, 477, the Supreme Court disposes of this question in language that admits of no doubt as to the governing rule in South Carolina respecting the cumulative or alternative nature of the remedy provided by statute, where before the passage of the particular Act a different remedy or procedure was provided. There, the question was whether Section 7991 of the Code, which provides for impounding the securities of a foreign insurance company, is exclusive, or whether a litigant is entitled to proceed under the general law governing the jurisdiction of receiverships. On this point the language of the Court is peculiarly pertinent here: "It provides that certain persons 'may, at any time, bring, in the Circuit Court for the county of Richland, an action * * * to enforce, administer or terminate the trust created by such deposit.' It is to be noted that there is no language in this section of the Code suggesting or declaring that the method of procedure therein outlined shall be mandatory or exclusive; there are no words of negation or prohibition which prohibit the other circuit courts of the state from entertaining jurisdiction. It would seem reasonable to conclude that, if the Legislature had intended to give the circuit court of Richland county exclusive jurisdiction in actions of this kind, it would have used apt words, clearly indicating such intention."
Under these authorities, the fact that the Act of 1919 creates a new remedy for the enforcement of a lien that had been previously created by both the Constitution and the statute above referred to clearly renders the statutory proceedings cumulative or alternative, and not exclusive. The absence of words of negation or prohibition, and the presence of language which is essentially permissive as distinguished from mandatory, renders this interpretation of the authorities inescapable.
In 1923 the Legislature passed an Act specifically providing for the levy and collection of paving assessments in the Town of Cheraw (Act No. 301, p. 577). This Act is for all practical purposes a mere re-enactment of the general statute for local purposes.
Being thus possessed of the right to invoke these alternative remedies, i. e., a suit in equity or an execution, the municipality is free in every case to adopt the procedure which best fits the facts with which it must deal. In instances where the amount of the paving assessment is small, and the margin of value in the property is great, the procedure by execution will frequently be resorted to as the most economical, and as likely to produce the desired results at a sale. Where the assessment is large in proportion to the value of the property, or where the facts of the particular case render it necessary to use the judicial process to protect the interests of the municipality and of those who may claim ownership in the property, the equitable remedy will be resorted to.
It is recognized even in tax cases (where the holding generally has been that the statutory method of enforcement is exclusive, because the tax is created and the enforcement remedy is provided by the same general Act), that the public authorities may resort to a suit in equity where the nature of the particular case renders this necessary. 61 C.J., 1053, 1054.
The present is a particularly apt case for the application of that doctrine. It is apparent from the complaint and the will exhibited at the hearing, and from the statements of counsel, that important questions of law are presented as to the true status of the title to the property, and of the claims of the various people who assert or may assert interest therein. Certainly it would be a most inefficient thing to undertake to sell a piece of property under such circumstances by a summary method. The rights of the municipality, and those of the claimants to the property, and also those of the purchaser at the execution sale, would be clouded in such doubt as to make the whole proceeding largely farcical as a means of producing a purchase price proportionate to the true value of the property. Through the present equitable procedure, the property and lien rights of all of the claimants are adjudicated and protected, and at the same time proper provision is made for the payment of State, county and municipal taxes, as well as of the assessment, according to their respective priorities, and, if it should appear in the trial of the cause that there are outstanding dower rights that need to be protected, by what means could they be so well protected as through the interposition of a Court of equity?
A further ground for sustaining the jurisdiction of the Court may be found in the uncertainty surrounding the statutory remedy. If paving assessment liens must (although the statute says may) be collected "in the same manner as the collection of taxes is now enforced," just what is meant?
It is to be borne in mind that a paving assessment lien is in no real sense a tax. Weatherly v. Medlin, 141 S.C. 290, 139 S.E., 633; Beatty v. Wittekamp, 171 S.C. 326, 172 S.E., 122; Sutton v. Town of Fort Mill, 171 S.C. 291, 172 S.E., 119.
Unlike a tax, the assessment creates a paramount lien which is superior to every private interest in the property. Beatty v. Wittekamp, supra.
Taxes on real estate are primarily enforceable against the personalty of the taxpayer, and in fact the exhaustion of the personalty appears to be a prerequisite to collection out of the real estate. Code, § 2853 et seq., and annotations. And both by statute and judicial decision taxes are declared to be a debt of the taxpayer, enforceable as such. Code, § 2569; Fuller v. Payne, 96 S.C. 471, 81 S.E., 176. Too, real estate taxes are not enforceable against the fee, where there is an outstanding life estate. Taylor v. Strauss, 95 S.C. 295, 78 S.E., 883. These are among the attributes of the tax enforcement statutes that can hardly be said to apply to the enforcement of a paving assessment lien. To what further extent the tax enforcement procedure may be found inapplicable, we need not inquire here. Certainly there is doubt as to the applicability of such procedure on many points, and its efficacy in many cases. All of which in itself furnishes a sound basis for the interposition of a Court of equity to enforce the lien.
Nor is equitable jurisdiction rendered inapplicable, as contended by some of the demurrants, on the theory that the proceedings are in personam and that the Court lacks jurisdiction over a number of the parties in the present cause, they being nonresidents. In the first place, no attempt is made by the plaintiff to obtain jurisdiction in personam. The prayer for relief relates exclusively to the enforcement of the lien of the paving assessment against the property alone. And as in cases of nonresident attachment, foreclosures against nonresidents, and the like, the Court of course is not without power to bar the interests of nonresidents and residents alike, where jurisdiction of the interests of the nonresidents is obtained in the manner provided by the statutes relating to publication of the summons ( e. g., see Code, § 436).
Independently of these considerations, however, it has been uniformly held that the proceeding to enforce an assessment is in rem, and not in personam Weatherly v. Medlin, supra; Beatty v. Wittekamp, supra.
Our Supreme Court has held that a Court of equity can adjudicate the validity of a paving assessment lien in a suit brought for that purpose. Sutton v. Town of Fort Mill, supra. That is not true of a tax, where the statutory requirement is that a tax which is alleged to be illegal must be paid under protest, and recovered by suit, no injunctive remedy being available (Code, § 2548). Thus we have a definite adjudication of another phase of tax enforcement procedure which has been held to be inapplicable to paving assessment liens. And, if a Court of equity can entertain jurisdiction of a suit to test the validity of such a lien, why may it not also entertain a suit to enforce collection of the lien?
In a very broad sense, too, the present case clearly involves the validity of a paving assessment lien. The demurrers make this apparent. And in that light equity jurisdiction is specifically sustained by the Sutton case, supra.
In the light of the above considerations and authorities it appears to me that this Court should take jurisdiction of the case.
The next important contention of the demurrant is that collection of the assessments which form the basis of the present action is barred by limitations. In the enabling provision of the Constitution above quoted, nothing appears on the question when the assessments shall be payable, or how long they shall continue in effect. In the Act of 1915 enacted pursuant to the constitutional provision, it is provided that "times and terms of payment and rates of interest on deferred payments of assessments by such property owners shall be such as may be prescribed by ordinance." Code, § 7374. In the Act of 1919 there first appears a definite statutory provision on the subject, to wit: "That such lien shall continue from the date of entry on such book until the expiration of five years from the date when final payment is due and payable, unless sooner paid. Upon default in the payment of any installment or deferred portion of any assessments, at the time and in accordance with the terms and conditions fixed by ordinance, the total amount of any such assessment then unpaid (including deferred installments or payments and interest) shall immediately become due and collectible." Code, § 7376. The complaint shows that under the terms of an ordinance passed by the municipality, the assessment in question was payable in ten annual installments, beginning with the year 1924, and that none of these installments have been paid. Accordingly, in the absence of the acceleration clause contained in the Act of 1919 above quoted, it could not be debatable that the limitation would be five years from the due date of the 1933 installment. But it is contended that under the acceleration provision of the statute nonpayment of the 1924 installment automatically rendered the whole amount of the assessment immediately due, and that therefore the collection of the assessment is barred both under the statute above quoted and also under the general statutes of the State.
It is not clear that the defense of limitations can be availed of by way of dumurrer (Code, § 356, and annotations thereto). Certainly that is true as to the general limitation statutes which are invoked by the demurrants.
Passing this, however, I do not regard the acceleration provision of the statute as automatic. I think that the sounder view is the one taken by the plaintiff, that the acceleration is optional with the municipality, and that, unless and until the municipality exercises its right to declare the whole balance of the assessment to be due and payable because of default in the payment of an installment, the installment arrangement continues in effect, and that the five-year limitation period does not then begin to run until the last installment matures. The purpose of the acceleration provision is clearly to give the creditor a "sword of Damocles" with which to impress upon the property owner the importance of making payments as stipulated. It is in the nature of a penalty. It is an additional remedy, and usually an oppressive action, the threat of which is well calculated to insure payment of the assessments. Every reason entering into this provision bespeaks its optional character with the creditor, and the moral obligation of the creditor to use it only as a last resort. The authorities on the question are not entirely harmonious, but the overwhelming weight of authority supports the view taken by the plaintiff. There is no decision on the point in South Carolina, but it would be grossly oppressive and out of key with current judicial and economic thought to make the acceleration provision mandatory and self-executing. The cases on this subject will be found collated in 34 A.L.R., 903 and 37 C.J., 850.
The language of the 1919 statute itself negatives the idea of an automatic acceleration. Under the language of the statute, an installment is in default only "at the time and in accordance with the terms and conditions fixed by ordinance." Reading this language with the balance of the Act indicates that it was the intention of the Legislature to confer upon the municipality the power to declare the whole balance of the assessment due and payable, rather than to make any statutory rule. Accelerating the payment of the balance is one of the "terms and conditions" for the payment of the assessment, and this is a matter expressly committed to the municipality.
There is nothing in the pleadings to indicate that any acceleration clause appears in the ordinance involved herein.
The Act of 1923 (No. 301, p. 577), Section 6, under which the present assessment was levied, contains the provision that "the sale of any property to satisfy any such assessment or installment of assessment shall not operate as a release of the lien on said property for the remaining unpaid installments." This language clearly negatives the idea of accelerating the payment of the balance of the installments in case of a default, and, since this Act provides (Section 7) that the powers granted thereby are not to be taken as limiting or restraining the powers of the municipality as contained in any general law, it appears to me that the five-year limitation statute, which begins to run from the due date of the last installment, is clearly applicable.
For the foregoing reasons I hold that the enforcement of the assessment in this case is not barred by limitations.
With reference to the power of the Court in this proceeding to bar the right of dower, it might suffice to say that it does not appear at this stage of the case that any of the defendants, and especially any of the demurrants, have or assert any dower interest in the property in question, though, of course such claims might develop at the hearing of the cause. However, I do not concur in the contention that the sale to enforce a paving assessment is to be assimilated to a tax sale, under the rule that a tax sale does not bar dower. Even if the enforcement of an assessment should be undertaken in the manner provided for the enforcement of taxes, it would not follow that the attributes of a tax sale are also the attributes of a sale to impose an assessment. There is a vital difference between the incidents of an assessment and of a tax, as hereinbefore pointed out, and it is one thing to assimilate the procedure for the enforcement of assessments to that for the enforcement of taxes, and an entirely different thing to declare that the two liens have the same attributes. On the contrary, the Beatty case above referred to clearly shows that the lien of a paving assessment is paramount to all private interests. 25 R.C.L., 175, 183.
I am satisfied that this Court has power to decree a sale in the present cause free of all dower or other interests on the part of all of the defendants who are before the Court, though of course the holder of any dower or other interest in the land will be entitled to assert his or her claim to a proper share of the proceeds of sale of the property, in the event that any surplus should remain after the payment of accumulated taxes and the assessment, and any other paramount liens that may be established herein.
The same comments apply to the contention that the Court may not in this case bar the equity of redemption, because of the right of redemption inherent in tax sales. In the tax field the right of redemption is expressly preserved by statute, and rests entirely upon the statute. No similar statutory provision is found with respect to paving assessment liens. There is no doubt in my mind about the fact that the purchaser at a sale made in this cause will be entitled to the property free of any right of redemption on the part of any owner of the property or of any interest therein.
The contention of the demurrants that the town is seeking to collect penalties in violation of the Constitution, etc., is inconsistent with the contention of demurrants that paving assessments should be enforced in the manner provided for the enforcement of taxes. Here the only penalty involved is the imposition of interest at the rate of 6 per cent. This is expressly permitted by the terms of Section 7374 of the Code, and does not appear to be prohibited by any provision of the Constitution. On the other hand, the very power to impose the assessment may well be held to carry with it the power to impose reasonable penalties for nonpayment as an essential characteristic of the right itself.
Under the decision of our Supreme Court in the case of Farrow v. City Council, 169 S.C. 373, 168 S.E., 852, 87 A.L.R., 981, it is palpable that it is wholly immaterial in the present case whether the present defendants or any of them were the owners of the property at the time the assessment was imposed, or whether they acquired their titles thereafter. The assessment is against the property and not against the person, and follows the property at all times and under all conditions until it is paid. See 25 R.C.L., 175, 183.
Nor do I adopt the contention of the demurrants that any of the defendants are improper parties. The complaint alleges that all of the defendants have or claim some interest in the property. That is sufficient to make them proper parties to give the Court jurisdiction.
The contention that the imposition of the assessment violates any provision of the South Carolina Constitution is of course fully answered by the fact that the lien is created by the Constitution itself.
With reference to the due process clause of the United States Constitution, the demurrants doubtless intended to refer to this clause as it appears in the Fourteenth Amendment, rather than to the cited provision of Article 5 of the Amendments, for of course Article 5 applies only to the enactments of Congress (see annotations to Article 5 in Code).
But the principle involved in the imposition of assessments for public improvements according to the procedure provided in the present legislation has been too long recognized in the jurisprudence of America to be now questioned on constitutional grounds. See, for example, Kansas City R. Co. v. Road Imp. District, 266 U.S. 379, 45 S.Ct., 136, 69 L.Ed., 335; Beatty v. Wittekamp, supra.
I have given careful consideration to the forceful presentation of the case for the demurrants, but, in view of the considerations and authorities above set forth, I am satisfied that a Court of equity has jurisdiction to entertain a suit of this character; that the enforcement of the assessment herein involved is not barred by limitations; that the interests of all persons who have any interest in or claim upon the property can be barred in this proceeding, proper provision being made for the protection of their rights in the proceeds of sale; and that the purchaser at a sale that may be ordered in the cause will obtain a good title to the property, free and clear of any right, title, interest, or estate, or any right to redemption, on the part of any of the defendants who are properly before the Court. Having reached these conclusions, and the additional conclusions hereinbefore expressed, it is ordered, adjudged, and decreed that the demurrers to the complaint be and they hereby are overruled, and that the demurrants shall have twenty days after notice of the filing of this order within which to answer the complaint.
Mr. R.E. Hanna, for appellants, Sara Caulder Turnage and Eva Caulder Franklin, cites: Taxation: 166 S.C. 123.
Mr. John D. Nock, for appellants, Mamie D. Powe and Mamie D. Powe, as guardian ad litem of H.L. Powe, Jr., and Mary Elizabeth Powe, cites: As to levy of special assessments for local improvements: 171 S.C. 291; 44 C.J., 481; 44 C.J., 817; 138 S.C. 187; 37 C.J., 341; 105 A.L.R., 1018; 25 R.C.L., 172. Lien of special assessments: Sec. 7376, Code 1932: 44 C.J., 802, 818; Ann. Cas., 1917-A, 1070.
Messrs. Samuel Want and P.A. Murray, Jr., for respondent, cite: Lien: 34 A.L.R., 903; 37 C.J., 211; 171 S.C. 326; 172 S.E., 123; 141 S.C. 290; 139 S.E., 635; 169 S.C. 373; 168 S.E., 852; 25 R.C.L., 175.
May 27, 1937. The opinion of the Court was delivered by
The logical and well-considered decree of Judge Grimball correctly disposes of the questions involved in this case. We adopt it as the opinion of this Court. Let it be reported.
The appeal is dismissed.
MESSRS. JUSTICE CARTER, BAKER and FISHBURNE concur.
MR. CHIEF JUSTICE STABLER concurs in result.