Copeland v. Copeland , 60 S.C. 135 ( 1901 )

April 1, 1901. The opinion of the Court was delivered by This is an appeal from an order refusing defendant's motion for leave to file a supplemental answer. The action was for partition of land. The defendant resisted, setting up, among other matters, title in himself, exclusively, by adverse possession for the statutory period. The issues had been referred to the master, and the master had reported adversely to the defendant, filing his report in July, 1899. For two terms of the Court thereafter the cause was continued, because the defendant's attorney, G.W.M. Williams, Esq., had been disbarred for misconduct and defendant had not secured other counsel. The defendant, represented by Messrs. Inglis Miley, at the April term, 1900, on due notice, moved "to set aside the report of the master herein, filed July 19, 1899, to recommit the issues herein to the master, and for leave to the defendant to make and file the proposed supplemental answer," which alleged (1) that on the 10th day of March, 1900, after the filing of the original answer and the report of the master, the defendant received from the clerk of the court of Bamberg County a deed purporting to have been made and executed by Eva F. Copeland, his mother, to the defendant, and dated June 19, 1873, conveying the land in question, recorded March 7, 1900; (2) that he was ignorant of the existence of said deed until the receipt by him of same from the clerk of the court on March 10, 1900, although aware that his mother had in her lifetime expressed her purpose of securing said land to him in some way; (3) that under said deed he was sole and exclusive owner of said land. The defendant's affidavit was to the effect of the foregoing answer. In addition, he submitted the affidavit of Mary A. Copeland, her husband's father, out of a chest in which they March, 1900, she was taking some old clothing of J.G. Copeland, her husband's father, out of a chest in which they had lain since the death of said J.G. Copeland, to whom in his lifetime said chest belonged, and which had not been removed since his death, when she found under the clothing in said chest, some papers, one of which attracted her attention as looking like a land paper; that thinking it might be of some value to her husband, J.F. Copeland, she called him into the house and showing him said paper, which upon examination turned out to be a deed from Mrs. Eva F. Copeland to Jacob C. Copeland, having folded up in it two dollars in money and a slip of paper, c." The slip of paper was as follows: "State of south carolina, Barnwell District, June 19th, 1873. Inclose Two Dollars After my death have recorded and returned to my son J.C. Copeland or his Ears." Both appellant's and respondent's counsel in their argument state that this slip was not signed by any one, and was not in the handwriting of the said grantor. The affiant, Mrs. Mary A. Copeland, further stated that she gave said papers to her husband, J.F. Copeland. J.F. Copeland made affidavit to the effect that on or about the 5th March, 1900, his wife showed the papers to him, and that he, in pursuance of the instructions on said slip, which he supposed was intended for his father, J.G. Copeland, mailed the deed and money to the clerk of the court for Bamberg County, with instructions to record the same and return to J.C. Copeland. This affiant further stated that the old chest wherein the papers were said to have been found, "belonged to his father, J.G. Copeland, then deceased, who had lived the latter part of his life and died in the same house with deponent and his family." The relation between the alleged grantor, Eva F. Copeland, and the owner of the chest, J.G. Copeland, does not appear in the Brief, although it may have appeared in the report of the master and the evidence before him, all of which were before the Circuit Judge on the motion; nor does it appear when the grantor died or how long the alleged depository of the deed survived her, nor whether the alleged grantor lived in the house where the old chest was kept, nor whether she had any control or access to said chest. It appeared, however, that Mrs. Eva Copeland died before the said J.G. Copeland; but there was nothing to explain why J.G. Copeland did not have the deed recorded and delivered to defendant, if he was its custodian, under the instructions contained on said slip. No evidence was offered to show the signing of the deed by the alleged grantor, nor by the witnesses, both of whom were dead. There was submitted an affidavit by a brother of the notary public, whose name appears on the deed in connection with the affidavit of one of the witnesses as to the execution of the deed, that the notary's signature is genuine. The alleged deed was also produced before the Circuit Judge. In refusing the motion, the following reasons were assigned, and were taken down by the stenographer:

"A deed must be executed in due form and delivered in due form, to pass title. If the delivery is postponed until after death, there is no delivery to the person and no title passes. I am of the opinion that the intention of the maker was to postpone the delivery till after her death therefore, there was no delivery.

"Now, the second question, as to whether this paper is abona fide paper. If I thought there was a reasonable doubt about the matter, I shouldn't hesitate to refer it to a jury; but upon inspection of the paper, and from the argument of counsel, I am satisfied, after two whole days consideration, I am satisfied, from a bare inspection, that this paper is a manufactured paper from the beginning. For the reason that the maker is dead, both witnesses are dead, and there is no testimony offered to prove that the names of the witnesses purporting to be here, are their genuine signatures, and the fact that the paper, and especially the ink, shows this thing was done within twelve months. If I didn't have a settled conviction that to allow a party to set up such relief would be to practice fraud — I have such a high regard for counsel, and for what they say, that I accept what they say in Court as true, that they would not set up a paper in defense without believing it was a bona fide paper — I accept it; still I must have my own belief and my belief is, that if I grant the motion, to file the supplemental answer and refer it to a jury, would be doing what, in my heart of hearts I know, would be lending a helping hand of the Court to carry out what would be a fraud upon the law. And for that reason I must decline the motion to file a supplemental answer."

The six exceptions taken to the order of the Court are reduced by the appellant's counsel to two propositions, as follows: "First, That the Circuit Judge has exceeded the limits intended and allowed by law, upon the hearing of a motion of this kind; in the extent of his examination into and decision upon the facts and merits of the defense set up in the proposed supplemental answer; and, second, that, even if the question of delivery was such as could be properly decided by the Judge on the hearing of this motion, his Honor erred, as matter of law, in deciding that, under the facts presented before him in this matter, there was not, and could not, have been any legal delivery of this deed to the appellant, Jacob C. Copeland." The matter of supplemental pleading is regulated by sec. 198 of the Code, which provides: "The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, of which the party was ignorant when his former pleading was made,c." In the case of Moon v. Johnson, 14 S.C. 435, this Court, in reference to this section, said: "The leave of Court is necessary in all cases to file a supplemental complaint, and although this leave will be generally granted, yet it is by no means a matter of course order, to which a party is entitled whenever he may choose to apply for it. On the contrary, the motion must be made in due time, in good faith, and upon facts warranting the favorable action of the Court, and when thus made, it rests in the discretion of the Court whether it shall be refused or granted * * *" This quotation is not a mere obiter dictum, for it was in direct response to the first exception, which raised the question whether the plaintiff was entitled to a supplemental complaint, as matter of course. Thus we see that the refusal of a motion to file a supplemental answer, like the matter of refusing amendments under Code, 194, rests in the discretion of the Circuit Court. It is well settled in reference to the matter of amendments, under sec. 194, that this Court will not set aside an order granting or refusing an amendment, except for abuse of discretion, or when the exercise of the discretion was controlled by error of law. Since a supplemental pleading is in the nature of an amendment to the pleading sought to be supplemented, the same rule should in reason apply, and must apply, if, as stated in Moon v. Johnson,supra, the matter rests in the discretion of the Court. As stated by acting Associate Justice Benet, in Norris v.Clinkscales, 47 S.C. 498, "The Courts and text writers all concur that by judicial discretion is meant sound discretion, guided by fixed legal principles. It must not be arbitrary nor capricious, but must be regulated upon legal grounds — ground that will make it judicial. It must be controlled by conscience and not by humor." In an appeal from the exercise of this discretion, this Court will not examine the evidence with a view to substitute its judgment as to its weight and sufficiency for that of the Judge to whose discretion the matter is submitted. We merely examine the evidence, with a view to ascertain whether there was abuse of discretion — that is, whether the Court's action was based upon his view of the evidence, or absence of evidence, or was but an arbitrary or capricious exercise of will, and without regard to the evidence. We see nothing in the case which in the slightest degree tends to show an abuse of discretion; on the contrary, there is much to show that the Court's action was the result of its view of the evidence, and a conscientious effort to act so as to further justice. When a Judge is called upon to exercise his discretion, under sec. 198, supra, it is the duty of the moving party to present such evidence as will satisfy the Judge (1) of the existence of facts material to the case occurring after the former pleading, or (2) of the existence of facts material to the case, of which the party was ignorant when the former pleading was made. This application being under the second branch, it was incumbent on the moving party to at least show prima facie that the deed which he sought to set up had been duly executed and delivered in the lifetime of the grantor, and that the moving grantee was ignorant of it at the time of the former pleading. The very nature of the motion shows that there was no actual delivery to the grantee, or to any one for him with his knowledge, in the lifetime of the grantor. It was, then, incumbent on the appellant to show that, without his knowledge, the grantor executed the deed and delivered it to a third party for him, in such manner as to show that the grantor parted with the control of the deed in her lifetime. In the case of Gilmore v. Whitesides, Dudley's Eq., 14, the Court held, as stated in the syllabus: "To constitute a delivery, the owner must part not only with the possession, but with the dominion of the thing. A man cannot grant any authority to be executed after his death. The delivery of an instrument to the agent of the donor, with instructions to keep it until after the donor's death, and then deliver it to a third person for the donee, the donor retaining the dominion over it during his life, is not such a delivery as will make the instrument valid as a deed, and a delivery by the agent after the death of the donor would be void." If, therefore, J.G. Copeland was merely the agent of the grantor, Eva F. Copeland, to deliver to the grantee after her death, he could not execute the power after her death, much less some other person after his death. But where is the evidence that the grantor delivered the deed to J.G. Copeland for delivery to the grantee after her death, whether as her agent, or as a trustee for the grantee. There is much authority for the view that "a grantor may deliver a deed to a third person to hold until the grantor's death and then to deliver to the grantee," and that such a delivery would be valid, provided the grantor had no power to recall or control the deed. 9 Ency. Law, 2 ed., 156, 157 — citing many cases, of which we have examined a few, as Porter v. Woodhouse,59 Conn., 568; 21 Am. St. Rep., 131; Sneathern v. Sneathern,104 Mo., 201, 24 Am. St. Rep., 326; Bury v. Young, 98 Cal., 446, 35 Am. St. Rep., 186; Trask v. Trask, 90 Iowa, 318, 48 Am. St. Rep., 446. But there was no evidence of such a delivery to any one for the grantee in the lifetime of the grantor. The Circuit Judge in this matter concluded that there was no delivery, as the intention of the maker (assuming the making of the deed) was to postpone the delivery until after her death, evidently basing his view of the law upon his view of the evidence that there was no delivery in the life time of the grantor, either to the grantee, or to a third person for him, beyond the control of the grantor. It is argued that the possession of the deed by the grantee and its record affords a presumption of due execution. This is true, when the record and possession is not explained otherwise. But in this case, appellant's own showing explained how the deed was recorded and came into his possession, he having only received it from the recording officer, who had received from another, in no wise connected with the deed or its proper custody, long after the death of the grantor. In view of the foregoing, we see no error of law which has controlled the exercise of the Court's discretion.

We do not deem it necessary to consider, except very briefly, whether "there was abuse of discretion in the Court's conclusion that the deed was not bona fide, but a forgery." The Court very properly exonerated the counsel conducting the motion from any conscious attempt to make use of a manufactured paper — indeed, the lofty character of the learned counsel would forbid any such thought. But if that was the Court's view of the evidence and the absence of evidence, we do not see how in furtherance of justice he could have acted otherwise. At any rate, we cannot say he abused his discretion in so viewing the evidence. It was incumbent on the moving party to satisfy the conscience of the Court that it would further justice to grant the motion.

The Judgment of the Circuit Court is affirmed.