Gist v. Cattell , 8 S.C. Eq. 343 ( 1831 )

Harper, J.,

delivered the opinion of the Court.

This Court concurs in the opinion delivered by the Chancellor; and his decree is affirmed, so far as respects the several matters settled by it. It is now, however, suggested, that of the several tracts of land conveyed, or released, by Independent Gist, to States Gist, and his mother, some of them, and particularly a tract of seven hundred acres, said to be situated in York district, but which could never be located, were never obtained, or enjoyed by States Gist. This, as was urged in the argument, could not be a ground for dismissing the claim of Independent Gist; although it might have been matter for a counter demand, or abatement. In strictness, this claim comes too late. It ought to have been made before the master, on the reference. This was not done; and there was neither any exception to his report on that ground, nor was the point made at the heaiang *n ^ie Court below. Still, however, I suppose it to be within the competency of this Court, if any claim, or ground of defence, has been casually omitted to be made, to afford the parties an opportunity, of trying its merits ; and the Court is always reluctant, whilst the case is in its power, to exclude any apparently just claim, or defence.

The release, or conveyance, from Independent Gist to Mrs. Gist, and States Gist, is not before the Court, but has been mislaid since the hearing; and it may be, that if it were before us, it would ap. pear, that there was no ground for opening the cause; It may be, that no value was set upon the land thus released. The Court perceives several other objections to the establishment of the claim. These, however, ought to be properly investigated before they are decided on ; and as little prejudice can be occasioned to any party, by the short delay necessary for the purpose, the Court is disposed to grant an opportunity for such an investigation. Perhaps it may still be in the power of the parties to produce the release on a reference.

It is, therefore, ordered, and decreed, that the master’s report be so far opened, as to allow the complainants to prove, and establish, any claim, or demand, which the estates of States Gist, and Mrs. Mary Gist, may have against the estate of Independent Gist, by the failure of the land, or other property, released, or conveyed, by Independent Gist, to the said States Gist, and Mary Gist, according to the views herein expressed : the decree being in other respects affirmed;

Johnson, J., and O’Neall, J., concurred.

Decree modified.