Bethea v. Allen

July 16, 1915. The opinion of the Court was delivered by On the first trial of this case on Circuit and on the first appeal to this Court (95 S.C. 479, 79 S.E. 639) the instruments executed by Elizabeth Henderson, dated January 6, 1871, and April 10, 1872, both of which will be reported, were assumed to be and treated as a deed and mortgage, respectively, by all parties, by the Circuit Court and by this Court. There was no allegation or suggestion that either should have any other construction.

But, when a new trial was ordered by this Court, defendant obtained leave on Circuit to amend his answer, and alleges that the instrument of January, 1871, was a will, and void for the want of proper attestation, and that the instrument of April, 1872, which he had, in his first answer, set up as a mortgage, and sought foreclosure of it, was a deed of trust, under which his grantors, Laura Jane and Maria L. Bethea, were vested with the equitable title in fee to the land therein described, after payment by them of the debt which it was given to secure, and that he was entitled to be subrogated to their rights.

The Circuit Court overruled both contentions, and held the instruments to be a deed and mortgage, and directed a verdict for the plaintiff on the issue of title, but submitted to the jury the issues of rents and improvements.

As respondent consented to the order allowing defendant to amend his answer, he waived his right to insist that the previous construction of the instruments of January, 1871, and April, 1872, as a deed and mortgage, is res judicata. We are, nevertheless, of the opinion that they were rightly so construed.

While the instrument of January, 1871, has some features of a will, the more controlling features show that it was intended to operate as a deed. Watson v. Watson,24 S.C. 228, and authorities cited. The facts and circumstances were sufficient to show, prima facie, that this deed was delivered, and there was nothing to rebut this showing.

There is no doubt that the paper of April, 1872, was intended as a mortgage. The provision therein that, in case of failure to pay the debt during the life of the mortgagor, the overplus of the value of the land was to be divided between her sisters, in case of foreclosure, was intended out of abundance of caution, to secure to them their rights under the deed of January, 1871, in the event of the foreclosure of the mortgage. This provision was not intended to convey to the sisters any interest in the land, after payment of the mortgage debt, but only in "the overplus of the value of the said land;" and, by its terms, the instrument was "to be void and of no effect" upon payment of the debt; and the debt was paid.

Defendant set up in his answer a claim for betterments, alleging that he believed, when he bought the land, and when he made the improvements, that his title was good in fee.

The Court instructed the jury that he was entitled to recover for only such improvements as were made by him, in good faith, believing, at the time he made them, that he had a good title in fee. In this, there was no error. The right to recover for betterments is statutory, and the procedure prescribed by the statute must be followed.

Our betterment acts were passed at different times, and they provide for the recovery of betterments under different circumstances, and each prescribes the manner in which the right therein given shall be enforced.

The act of 1870 (sec. 3526, Civ. Code 1912) entitles the purchaser of lands and tenements, which have been recovered from him, to recover the value of all improvements made by him, or those under whom he claims, if he or they supposed, at the time of the purchase, the title to be good in fee. Under the terms of this statute, one from whom lands and tenements have been recovered can recover not only for all improvements made by himself, but also for such as were made by those under whom he claims, and even for such as were made after knowledge of title in another, provided he or his grantors supposed, at the time of the purchase, that the title was good in fee. Templeton v.Lowry, 22 S.C. 389. But that statute expressly prescribes that such recovery shall be had "in the manner hereinafter provided," and then it provides in detail the manner of recovery, to wit: By separate action, which must be commenced within forty-eight hours after final judgment recovering the lands and tenements, or during the term of Court in which the same shall be rendered. It has been held, therefore, that a defendant could not set up in his answer, in an action to recover lands and tenements from him, his claim for betterments, made by those under whom he claimed. Aultman v. Utsey, 41 S.C. 304, 19 S.E. 617. But the same claim, prosecuted by separate action, according to the provisions of the act of 1870, was sustained.Salinas v. Aultman, 45 S.C. 283, 22 S.E. 889.

The statute of 1885 (sec. 3531, Civ. Code 1912) provides that the defendant in an action for the recovery of land who may have made improvements thereon, believing at the time he made them that his title was good in fee, shall be allowed to set up in his answer his claim for betterments. This statute did not supersede that of 1870, but supplemented it (Tumbleston v. Rumph, 43 S.C. 275,21 S.E. 84), and, therefore, under it, a defendant, in an action to recover land, cannot set up in his answer a claim for improvements made by those under whom he claims (Aultman v. Utsey, supra), but, by the terms of the statute, he is allowed to set up in his answer his claim only for such improvements as he himself made, believing at the time he made them that his title was good in fee. (McKnight v.Cooper, 27 S.C. 94, 2 S.E. 842; Gadsden v. DesPortes,39 S.C. 131, 17 S.E. 706.) If a defendant would set up a claim for improvements made by those under whom he claims, or by himself, under the supposition, at the time of the purchase, that the title was good in fee, he must do so by separate action, under the provisions of the act of 1870. (Section 3526, et seq., Civ. Code 1912.)

There may be no sound reason for this apparently technical distinction between the different claims and the methods of enforcing them, and it may be conceded that it is difficult to see why a defendant should not be allowed to set up in his answer all the claims to betterments to which he may be entitled under either statute, but the law was so written by the lawmakers, and it has been so construed by this Court in the decisions above cited. The power to amend or extend a statute rests solely with the legislature. The general rule is that where a new right is created by a statute, which also prescribes the remedy, or method of enforcing the right, the method prescribed by the statute is exclusive. Kennedy v.Reames, 15 S.C. 548.

Judgment affirmed.