The opinion of the court was delivered by
SimpsoN, C. J.
The plaintiff, James M. Eason, brought this action (claim and delivery of personal property), and alleged—
1. That he was “ owner of-patterns, of the value of $5000, which goods were, on May 11th, 1879, stored on the premises known as Eason’s foundry, Columbus street, Charleston, S. C.”
2. That on April 24th, 1879, the defendants, Miller & Kelly, purchased the premises, and on May 11th, 1879, entered into possession of the same, and took possession of said patterns.
3. He alleges unlawful detention, &c.
And prays judgment for recovery of the said patterns, or $5000, their value, in case a delivery cannot be had.
The defendants, Miller & Kelly, answering—
1. Deny ownership of plaintiff.
2. Admit, as alleged, that they purchased premises, and took possession of the patterns mentioned in complaint, and have refused to deliver them.
3. They deny unlawful detention.
They further allege, as new matter, the source of their title : that the patterns mentionéd in complaint are their property, through purchase at foreclosure sale, on April 24th, 1879, of Eason’s foundry, together “ with all the working implements, machinery and tools connected therewith .now thereon,” the mortgage bearing date April 2d, 1866. And they allege that the patterns mentioned in complaint were a part of the tools and working implements on the premises on the day of sale, April 24th, 1879, and they hold the same through such sale by virtue of the deed of the master.
The case was tried February Term, 1880, Judge Pressley presiding. After evidence was heard and argument, the judge charged the jury in brief, that it was his duty to construe the mortgage. That in law, he held, a pattern was a “ tool or work[199]*199ing instrumentand that the mortgage did cover the patterns used in the foundry when the mortgage was given. And the defendants, Miller & Kelly, bought under the foreclosure sale ■all the patterns under the mortgage, and those patterns are their property. Further, the court held, as matter of law, that the patterns put on premises after date of mortgage are Mr. Eason’s (plaintiff) property.
After deciding these issues of law raised in the pleadings, the judge submitted to the jury the issue for them, as follows:
“ The question, therefore, is, how mueh of the property of this plaintiff, which was not mortgaged, is now in possession of Miller & Kelly. Mr. Kelly says that he values those patterns at $5000. Mr. Lambley (plaintiff’s witness) says he values them at $5000. What portion of that $5000 applies to the patterns which Mr. Eason has a right to claim f He has no right to claim any which were there prior to the making of the mortgage. What portion of that $5000 belongs to Mr. Eason ? The testimony is conflicting. Mr. Lambley (plaintiff’s witness) says the greater proportion of the patterns and the greater proportion in value were there at the time of the execution of the mortgage. Mr. Eason (plaintiff) differs from him and says that the greater portion were put there afterwards. You must decide for yourselves which of these witnesses you will follow. Your verdict must be a special one, as follows: If you find for the plaintiff you will say: ‘ We find that the plaintiff is entitled to the return of such of the patterns claimed as were not ■on the premises at the date of the mortgage, and we assess the value thereof at so much money.’ That gives the defendants the right to return those patterns and pay nothing but the costs or, if they think it will be best to keep them, they will do so, and pay for them at your assessment. In making your assessment you will settle the matter according to the testimony. You will have to reconcile the testimony of Mr. Eason and Mr. Lambley.”
The jury rendered the following verdict:
“We find for plaintiff patterns the value of one hundred dollars.
“ W. Preston Dowling, Foreman.”
[200]*200There was no objection to verdict by court or counsel. No action waá taken by either party until the court adjourned, when the plaintiff entered up judgment for “ the possession of the personal property described in the complaint, to wit, the patterns which were on the premises on the north side of Columbus street in the city of Charleston, and known as Eason’s foundry, on the 11 th day of May, 1879, or one hundred dollars in case a delivery cannot be had.” An execution was issued for the delivery of possession to James M. Eason of “ the patterns which were on the premises,, &c., on the 11th day of May, 1879, or one hundred dollars in case a delivery cannot be had.”
The defendants thereupon moved, before Judge Thomson, to-set aside judgment and quash execution on the grounds—
1. That the judgment was not entered in conformity with the verdict.
2. That the judgment was entered up and execution issued by the clerk without authority of law.
Judge Thomson dismissed the motion, on the grounds stated in his decision.
The defendants appeal to this court on the grounds that his Honor, the Circuit judge, erred—
1. In deciding that the judgment herein was entered in conformity with the verdict.
2. In deciding that the clerk had authority of law to enter up the said judgment on said verdict.
3. In dismissing the motion to set aside judgment and quash execution.
The appeal of the defendants raises, substantially, but one question, and that is: Was the judgment entered by the clerk in conformity with the verdict? If so, then the clerk had authority of law to enter it, (Lyneh’s Code, § 288,) and the judge would have erred had he set it aside and quashed the execution. If not, then the judge was in error in refusing appellant’s motion.
The word “ conformity ” means agreement — congruity with something else — and, as applied to cases of this kind, its use was intended to convey the idea that the judgment should carry out the intent of the verdict. In fact, no other judgment but one [201]*201in conformity with the true intent of the verdict would be legal.
The conclusion to be reached, then, in this case, involves the examination of three questions :
First. "What does the judgment mean ? Second. What does the verdict mean? and, Third. Is there conformity between the two? If so, then this appeal must be dismissed, otherwise the order of the judge must be reversed.
The meaning and intent of the judgment seems to be very clear. Its language is plain and unambiguous. It declares that the plaintiff shall recover the possession of the personal property described in the complaint, to wit, the patterns which were on the premises on the north side of Columbus street, in the city of Charleston, known as Eason’s foundry, on May 11th, 1879.
There is no division of the patterns into classes, or numbers, or portions, or as to the different times when these patterns reached the premises, but the whole is embraced — the patterns, which were on the premises on May 11th, 1879.
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The opinion of the court was delivered by
SimpsoN, C. J.
The plaintiff, James M. Eason, brought this action (claim and delivery of personal property), and alleged—
1. That he was “ owner of-patterns, of the value of $5000, which goods were, on May 11th, 1879, stored on the premises known as Eason’s foundry, Columbus street, Charleston, S. C.”
2. That on April 24th, 1879, the defendants, Miller & Kelly, purchased the premises, and on May 11th, 1879, entered into possession of the same, and took possession of said patterns.
3. He alleges unlawful detention, &c.
And prays judgment for recovery of the said patterns, or $5000, their value, in case a delivery cannot be had.
The defendants, Miller & Kelly, answering—
1. Deny ownership of plaintiff.
2. Admit, as alleged, that they purchased premises, and took possession of the patterns mentioned in complaint, and have refused to deliver them.
3. They deny unlawful detention.
They further allege, as new matter, the source of their title : that the patterns mentionéd in complaint are their property, through purchase at foreclosure sale, on April 24th, 1879, of Eason’s foundry, together “ with all the working implements, machinery and tools connected therewith .now thereon,” the mortgage bearing date April 2d, 1866. And they allege that the patterns mentioned in complaint were a part of the tools and working implements on the premises on the day of sale, April 24th, 1879, and they hold the same through such sale by virtue of the deed of the master.
The case was tried February Term, 1880, Judge Pressley presiding. After evidence was heard and argument, the judge charged the jury in brief, that it was his duty to construe the mortgage. That in law, he held, a pattern was a “ tool or work[199]*199ing instrumentand that the mortgage did cover the patterns used in the foundry when the mortgage was given. And the defendants, Miller & Kelly, bought under the foreclosure sale ■all the patterns under the mortgage, and those patterns are their property. Further, the court held, as matter of law, that the patterns put on premises after date of mortgage are Mr. Eason’s (plaintiff) property.
After deciding these issues of law raised in the pleadings, the judge submitted to the jury the issue for them, as follows:
“ The question, therefore, is, how mueh of the property of this plaintiff, which was not mortgaged, is now in possession of Miller & Kelly. Mr. Kelly says that he values those patterns at $5000. Mr. Lambley (plaintiff’s witness) says he values them at $5000. What portion of that $5000 applies to the patterns which Mr. Eason has a right to claim f He has no right to claim any which were there prior to the making of the mortgage. What portion of that $5000 belongs to Mr. Eason ? The testimony is conflicting. Mr. Lambley (plaintiff’s witness) says the greater proportion of the patterns and the greater proportion in value were there at the time of the execution of the mortgage. Mr. Eason (plaintiff) differs from him and says that the greater portion were put there afterwards. You must decide for yourselves which of these witnesses you will follow. Your verdict must be a special one, as follows: If you find for the plaintiff you will say: ‘ We find that the plaintiff is entitled to the return of such of the patterns claimed as were not ■on the premises at the date of the mortgage, and we assess the value thereof at so much money.’ That gives the defendants the right to return those patterns and pay nothing but the costs or, if they think it will be best to keep them, they will do so, and pay for them at your assessment. In making your assessment you will settle the matter according to the testimony. You will have to reconcile the testimony of Mr. Eason and Mr. Lambley.”
The jury rendered the following verdict:
“We find for plaintiff patterns the value of one hundred dollars.
“ W. Preston Dowling, Foreman.”
[200]*200There was no objection to verdict by court or counsel. No action waá taken by either party until the court adjourned, when the plaintiff entered up judgment for “ the possession of the personal property described in the complaint, to wit, the patterns which were on the premises on the north side of Columbus street in the city of Charleston, and known as Eason’s foundry, on the 11 th day of May, 1879, or one hundred dollars in case a delivery cannot be had.” An execution was issued for the delivery of possession to James M. Eason of “ the patterns which were on the premises,, &c., on the 11th day of May, 1879, or one hundred dollars in case a delivery cannot be had.”
The defendants thereupon moved, before Judge Thomson, to-set aside judgment and quash execution on the grounds—
1. That the judgment was not entered in conformity with the verdict.
2. That the judgment was entered up and execution issued by the clerk without authority of law.
Judge Thomson dismissed the motion, on the grounds stated in his decision.
The defendants appeal to this court on the grounds that his Honor, the Circuit judge, erred—
1. In deciding that the judgment herein was entered in conformity with the verdict.
2. In deciding that the clerk had authority of law to enter up the said judgment on said verdict.
3. In dismissing the motion to set aside judgment and quash execution.
The appeal of the defendants raises, substantially, but one question, and that is: Was the judgment entered by the clerk in conformity with the verdict? If so, then the clerk had authority of law to enter it, (Lyneh’s Code, § 288,) and the judge would have erred had he set it aside and quashed the execution. If not, then the judge was in error in refusing appellant’s motion.
The word “ conformity ” means agreement — congruity with something else — and, as applied to cases of this kind, its use was intended to convey the idea that the judgment should carry out the intent of the verdict. In fact, no other judgment but one [201]*201in conformity with the true intent of the verdict would be legal.
The conclusion to be reached, then, in this case, involves the examination of three questions :
First. "What does the judgment mean ? Second. What does the verdict mean? and, Third. Is there conformity between the two? If so, then this appeal must be dismissed, otherwise the order of the judge must be reversed.
The meaning and intent of the judgment seems to be very clear. Its language is plain and unambiguous. It declares that the plaintiff shall recover the possession of the personal property described in the complaint, to wit, the patterns which were on the premises on the north side of Columbus street, in the city of Charleston, known as Eason’s foundry, on May 11th, 1879.
There is no division of the patterns into classes, or numbers, or portions, or as to the different times when these patterns reached the premises, but the whole is embraced — the patterns, which were on the premises on May 11th, 1879. This covers all that were there. There can be no doubt about this; and if the verdict was as unambiguous as the judgment, the case would be free from difficulty.
Now, did the jury intend by their verdict to give to the plaintiff all of these patterns, which, according to the undisputed testimony, were worth, in the aggregate, $5000 ? The verdict is very concise and compact in its terms; it is very short, and is in these words: “We find for the plaintiff patterns the value of one hundred dollars.”
Now, when we find by the complaint that the plaintiff instituted his action to recover patterns of the value of $5000, and that the testimony offered on the trial proved that the patterns on the premises at the time mentioned, viz., May llt-h, 1879, were worth that sum, and yet the verdict limits the recovery of the plaintiff to patterns of the value of $100, it would be difficult to believe that the jury intended by their verdict that plaintiff should recover all of the patterns on the premises, as is expressed in the judgment. The very fact that the jury fixed the value of the portion which they intended the plaintiff to recover at $100> shows, conclusively, as an independent fact, that they did-not [202]*202intend that plaintiff was entitled to the whole, which, according to admitted proof, was worth $5000.
But can this intent of the jury be reached by a legal construction of the verdict, or will such a construction lead to a conclusion contrary to this manifest purpose of the jury, and give to the plaintiff the entire patterns,-in violation of the justice of the ■case, the evident intent of the jury and the charge of the judge?
A verdict is the finding of the facts of a case by the jury. It may be either general or special. In either case it is the response «of the jury to the issues of fact submitted to them by the court. To ascertain, then, the intent and meaning of a verdict, we must look back to the issues submitted.
Generally, the issues of fact involved in a case will be found ■contained in the allegations of the plaintiff in his complaint, and the denials or other statements of the defence as stated in the answer, and where there is nothing more in the complaint and answer but questions of fact, then an examination of these pleadings will present the true issues submitted to the jury, and to which their verdict will be understood to be responsive. But the pleadings, in addition to questions of fact, may also raise ■questions of law. In such case the questions of law do not go to the jury, but must be decided by the court before the case is submitted to the jury. In other words, in such case it would be the duty of the judge to eliminate from the pleadings the questions of law, and to submit to the jury only the questions of fact. And in such case the charge of the judge (subject, of course, to appeal,) and not the complaint and answer, would contain the real issues of fact, by which the verdict, should any doubt arise as to its true intent and meaning, ought to be construed.
Now, in this case, the plaintiff instituted suit for the recovery of patterns of the value of $5000, stored on the premises in ■question on May Ilth, 1879. The answer of defendants admitted that they took possession of the premises on the day mentioned, and, also, of the patterns then on the place; but they claimed that these patterns were embraced in a mortgage under which they had bought these premises, and that therefore the title was in them.
This answer raised two questions, one of fact and one of law. [203]*203The question of fact was that all of the patterns on the premises at the time mentioned were embraced in the mortgage, and the question of law was, that, being so embraced, they, as purchasers under said mortgage, were the legal owners.
The Circuit judge decided at once the legal question, and held, no doubt correctly, that such portion of the patterns as were on the premises at the date of the execution of the mortgage belonged to the defendants, and such portion as was placed there after the execution of the mortgage belonged to the plaintiff. And he submitted to the jury, as the true issue for them to pass upon, what portion of the patterns described in the complaint had been placed there after the execution of the mortgage.
The plaintiff, in his complaint, had claimed all of the patterns in the place at the time mentioned. The charge of the judge, however, as he had the right to do, in deciding the legal question raised, limited the claim to only a portion, and the amount of this portion was the real issue to the jury. How, then, can the verdict be construed to embrace all, when it was admitted that a portion had been withdrawn by the charge of the judge, and only the remainder was involved ; and when the jury was instructed by the judge in his charge that it was as to this remainder only, and its value, that they were to inquire ?
We do not think that the jury intended by their verdict to declare title in the plaintiff to all the patterns, and inasmuch as the judgment covers all, that the judgment is not in conformity with the verdict and should be vacated, and the execution issued thereunder quashed.
The order below is reversed and the appeal sustained.
McGowaN, A. J., concurred.