Griggs v. McGregor

113 S.E. 78, 120 S.C. 232, 1922 S.C. LEXIS 122

• Court: Supreme Court of South Carolina
• Decided: July 5, 1922
• Docket: 10905
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Cothran.

Action for damages for trespass and for injunction. The uncontested facts, if the testimony sustaining them be admissible, appear to have been as follows:

The land in question at one time belonged to one P. A. Sellers, not a party to this action. He of course owned the land and the timber thereon. He made a verbal agreement with the defendant, McGregor, for the sale of both land and timber at $1,800.00. Before the trade was closed by deed, McGregor made a verbal agreement with the plaintiff, Griggs, for the sale of the land, reserving the timber, at $1,600.00. Rather than have two deeds executed, one from Sellers to McGregor for the land and timber and another from McGregor to Griggs for’ the land, reserving the timber, the parties interested agreed that one deed, from Sellers to Griggs, should be executed, and employed a young man at the bank to draw the deed. He drew the deed conveying the land, making no mention of the timber reserva tion, from Sellers to Griggs. The latter went into possession, and while he was in possession and with his knowledge McGregor, at least two years before the present action was brought, without objection from Griggs, cut a considerable portion of the timber. Afterwards Griggs gave him notice to cut no more, and instituted this action for damages and injunction.

The defendants answered, denying the plaintiff’s right to damages or injunction by reason of the foregoing facts, and prayed that the deed from Sellers to Griggs'be reformed to express the real intention of the parties, the same having conveyed to Griggs both the land and the timber contrary to the understanding and agreement of the parties, due to a mistake in the scrivener. The case was referred to the master, who reported the facts as the defendants contended for and recommended a reformation of the deed. The Circuit Judge confirmed his report in all particulars and ordered a reformation. The plaintiff has appealed.

If Sellers had been made a party defendant, upon the facts stated, McGregor would unquestionably have been entitled to a reformation as against both. Griggs and Sellers. See the recent case of Jumper v. Lumber Co., 115 S. C., 452; 106 S. E., 473, where the question of reformation is discussed and the principles announced.

The embarrassment arises in decreeing a reformation of the deed executed by Sellers when he is not a party to this action. At any rate, even in his absence, the Court may conclude that, so far as Griggs, who-is a party, is concerned, the defendants are entitled to a. reformation of the deed, and that Griggs holds the legal title as trustee for McGregor, which is sufficient to defeat his right to damages or injunction. But, as the stipulation of the parties is that “all parties are properly in Court,” and no question is raised as to the absence of Sellers, and for the further reason that Sellers has conveyed his entire- interest and most probably would make no defense if he were made a party, we will affirm the decree, withoüt prejudice to the rights of Sellers.

Affirmed.