Jones v. McCrady ( 1897 )

The opinion of the Court was delivered by

Mr. Justice Pope.

On the 3d day of January an action was instituted in the Court of Common Pleas for Chester County, in this State, by the plaintiffs above named against the defendants above named. When it came on for trial, before Judge Watts, on the 21st day of November, 1896, an oral demurrer was interposed by the defendants, which demurrer was overruled by his Honor, Judge Watts. The defendants thereupon appealed to this Court. In order that this appeal may be apprehended, it will be necessary in the report of the case to set out the complaint with the exhibits “A,” “B,”'“C,” the petition of John R. Rondon, the grounds of demurrer, on pages 21 and 22 of the “Case,” and the exceptions.

The complaint and petition are absolutely silent as to the date of the judgment of McCrady against Jones and Robertson, so that it does not appear whether the lien thereof attached to the lands in controversy before the sale thereof by McFadden, as clerk, to William A. Courtenay, or at what time afterwards. Indeed, the only reference to this judgment of McCrady against Jones and Robertson in the complaint and petition is in the fourth paragraph of each. In the fourth paragraph of the complaint it is merely stated that William H. Hood, as sheriff of Chester Count)', has levied upon the interest of Allen Jones and Thomas C. Robertson on all the property conveyed by McFadden, clerk, to William A. Courtenay, xmder a judgment obtained by Edward McCrady against the firm of Jones & Robertson, composed of Allen Jones and Thomas C. Robertson. That neither Allen Jones nor Thomas C. Robertson have legal title to said lands or other interest therein, except as stated in the first three paragraphs of the complaint, and that the plaintiffs are advised that no part of said premises is subject to levy and sale under said execution. While in the fourth paragraph of the petition of John R. Rondon, it is alleged that the petitioner is advised that Allen Jones and Thomas C. Robertson have no interest in said lands that is subject to levy and sale under said execution. The complaint and petition are equally silent as to any invalidity in the judgment of McCrady against Jones and Robertson. Under this condition of the pleadings, is not the rule which was laid down in Latimer v. Ballew, 41 S. C., 519, applicable? It is true, that this Court in that case did proceed to dispose of the alleged equities in the plaintiffs there. I am unwilling to attempt to dispose of the very interesting questions which have been so ably presented in the arguments at bar, without these allegations, if they can be made. I think, therefore, that the Circuit Judge was in error in his refusal to sustain the oral demurrer as to so much of the complaint and petition as I have pointed out. The Circuit Judge ought to have sustained the demurrer on these points, and left the balance of the questions to await the correction of the pleadings as herein indicated.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the action be remitted to the Circuit Court, with leave to the plaintiffs to amend their pleadings within thirty days after the remittitur from this Court shall reach the Circuit Court, but in the event the plaintiffs within that period of time neglect or refuse to amend their pleadings as hereinbefore indicated, that then the complaint and petition be dismissed.