Central National Bank v. Duncan ( 1907 )

I concur in the conclusion stated by Mr. Justice Gary. The plaintiff seeks first, the recovery of the possession of the lot described in the lease, under the allegations that after the lease was executed, the changes made by the plaintiff, giving it the right to remove the bank fixtures at the termination of the lease, were acquiesced in and ratified by those defendants who were parties thereto. This, if true, would make the lease, as corrected by the plaintiff, binding on all parties. Therefore, if the plaintiff proves this allegation it will be entitled to recover the land and hold it under the terms of the lease as corrected until the end of the term. This gives character to the suit as an action for the recovery of real estate on the law side of the Court, which the defendants have a right to have tried by a jury on calendar No. 1.

It is true, the plaintiff asks that if it should fail to recover possession under the lease, as changed by it, then that the Court, in the exercise of its equity powers, will reform the lease so as to correspond with the understanding of the parties, and decree specific performance of it by requiring delivery of the property under the lease so reformed. The consideration of this relief or reformation, which only the Court of equity can give, must, however, under the terms of the complaint itself, remain in abeyance until the right of the plaintiff to possession, without the necessity of reformation, is tried. Should the plaintiff succeed in recovering possession on the lease as it stands after the alleged correction, there would be no need for the equitable relief of reformation in the terms contended for by the plaintiff, or for the specific performance of the contract so reformed by the delivery of possession thereunder. If, however, the plaintiff shall fail to make good its allegations as to the acquiescence in, or the ratification of the changed or corrected lease by the defendants, the owners of the property, in that event, it would still be entitled to try the equitable issues, and if successful obtain a decree of reformation and specific performance. In short, since by the complaint itself, it clearly appears that under its allegations the plaintiff may recover a judgment for the possession of the lot, and that this would be full and adequate relief, and that the equitable relief is only sought as an alternative in case the action for possession fails, it seems to follow inevitably, that the legal issue of the right of possession under the lease as it stands, after the changes made by the plaintiff, should be first tried, and that the equitable issues of reformation and specific performance should be postponed: for if the plaintiff is successful on the legal issue, the equitable issues will entirely disappear.

This conclusion is in accord with the views expressed inAlston v. Limehouse, 61 S.C. 1, 30 S.E., 192; and Lipscomb v. Littlejohn, 63 S.C. 44, 40 S.E., 1023. The case of Fire Co. v. Richland Lodge, 73 S.C. 572, 53 S.E., 993, relied on by the respondents was quite different. That was not an action for the recovery of real estate but to declare a written contract of occupancy forfeited as a cloud on the title of the plaintiff.

MR. JUSTICE JONES concurs in this opinion.