The opinion of the court was delivered by
Mr. Justice Pope.
The defendant, under her hand and seal, on the 25th day of June, 1886, executed a lease of “one Packard organ, style 18, No. 2507,” for the term of twenty-two months, at a rental of $5, to be paid on the 25th of each of the twenty-two months, with a proviso in said lease that the said defendant “may at any time within said term of rental, purchase the said instrument by paying the above valuation ($115) therefor; and then, and in that case only, all amounts theretofore paid as rental or advance deposit shall be deducted from the price of the instrument.” Thereafter from month to month the defendant paid to said plaintiff the sum of $5, until her payments aggregated $65; she then refused to pay anything more to plaintiff, and refused to turn over such Packard organ to plaintiff. Thereupon the plaintiff, on the 2d of March, 1893, commenced this action for claim and delivery. In the complaint the fore: going facts are set forth. By the answer of defendant she admits the execution of the paper writing under her hand and seal, as alleged by the plaintiff, but as an affirmative defense, she alleges, that immediately after she made her ‘last payment of $5 (which occurred on the 30th November, 1887), she learned that the assurance made to the defendant on the day she executed the agreement, to wit: 25th day of June, 1886, by the plaintiff, its agent and servants, that thé organ in question was new and had never been in use, and that it was in first class condition, was fraudulently made to her; whereas, the truth was, that such instrument, instead of being new and never haying been in use, and in first class condition, was an old one, which had been out of plaintiff’s possession under a similar agreement made to the plaintiff [119] by this defendant, and after months use had been returned to the plaintiff; that the plaintiff thus deliberately disposed of the organ to this defendant at a price charged for a new instrument and in good order, when the plaintiff knew it was selling to the defendant a worn and second hand instrument, worth only what such an instrument would sell for. That she realized that in paying to the plaintiff $65, she had paid more than such an instrument, being worn and second hand, was worth; and that owing to these facts she paid nothing more to the plaintiff, and has refused to turn over the instrument to it. That realizing that she had paid the full value of the second hand organ in question, she has elected to become its purchaser at the price she has already paid. She demands: that her contract should be surrendered and cancelled under the judgment of the Court; that she be adjudged the owner of said organ, or that she be permitted to hold the same until the $65 she has paid be refunded to her. Under the order of Judge Hudson, passed on the 25th October, 1893, all issues of law and fact were referred to the master, John T. Seibels, Bsq.
When the cause came on to be heard before said master, the plaintiff demurred to the answer, because it failed to set forth facts sufficient to constitute a defense. This demurrer was eventually sustained by the master, and he recommended, amongst other things, that plaintiff have all the relief demanded in its complaint. To this report the defendant excepted, and when the same was brought on for trial before his Honor, Judge Benet, he reversed the master’s report, and ordered the case back to the master for a trial.
From Judge Beliefs order the plaintiff now appeals to this Court. Bet the order and the exceptions be set out in the report of the case.
1. We may as well remark at the outset, that the decision of this Court in the case of Ludden & Bates Southern Music House v. Dusenberry, 27 S. C., 464, fixes the character of a lease, the paper sued on in this action. It is true, the case of Singer Man. Co. v. Smith, 40 S. [120] C., 529, did hold that the paper writing- then in question was not a lease but a mortgage; but it is well to remember that the terms of the latter instrument were different from that in Ludden & Bates &c. v. Dusenberry, supra, and also that this Court did not undertake to overrule the case just cited. This being so, we must recognize its authority as controlling here, certainly as fixing the character of the paper sued on.
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The opinion of the court was delivered by
Mr. Justice Pope.
The defendant, under her hand and seal, on the 25th day of June, 1886, executed a lease of “one Packard organ, style 18, No. 2507,” for the term of twenty-two months, at a rental of $5, to be paid on the 25th of each of the twenty-two months, with a proviso in said lease that the said defendant “may at any time within said term of rental, purchase the said instrument by paying the above valuation ($115) therefor; and then, and in that case only, all amounts theretofore paid as rental or advance deposit shall be deducted from the price of the instrument.” Thereafter from month to month the defendant paid to said plaintiff the sum of $5, until her payments aggregated $65; she then refused to pay anything more to plaintiff, and refused to turn over such Packard organ to plaintiff. Thereupon the plaintiff, on the 2d of March, 1893, commenced this action for claim and delivery. In the complaint the fore: going facts are set forth. By the answer of defendant she admits the execution of the paper writing under her hand and seal, as alleged by the plaintiff, but as an affirmative defense, she alleges, that immediately after she made her ‘last payment of $5 (which occurred on the 30th November, 1887), she learned that the assurance made to the defendant on the day she executed the agreement, to wit: 25th day of June, 1886, by the plaintiff, its agent and servants, that thé organ in question was new and had never been in use, and that it was in first class condition, was fraudulently made to her; whereas, the truth was, that such instrument, instead of being new and never haying been in use, and in first class condition, was an old one, which had been out of plaintiff’s possession under a similar agreement made to the plaintiff [119] by this defendant, and after months use had been returned to the plaintiff; that the plaintiff thus deliberately disposed of the organ to this defendant at a price charged for a new instrument and in good order, when the plaintiff knew it was selling to the defendant a worn and second hand instrument, worth only what such an instrument would sell for. That she realized that in paying to the plaintiff $65, she had paid more than such an instrument, being worn and second hand, was worth; and that owing to these facts she paid nothing more to the plaintiff, and has refused to turn over the instrument to it. That realizing that she had paid the full value of the second hand organ in question, she has elected to become its purchaser at the price she has already paid. She demands: that her contract should be surrendered and cancelled under the judgment of the Court; that she be adjudged the owner of said organ, or that she be permitted to hold the same until the $65 she has paid be refunded to her. Under the order of Judge Hudson, passed on the 25th October, 1893, all issues of law and fact were referred to the master, John T. Seibels, Bsq.
When the cause came on to be heard before said master, the plaintiff demurred to the answer, because it failed to set forth facts sufficient to constitute a defense. This demurrer was eventually sustained by the master, and he recommended, amongst other things, that plaintiff have all the relief demanded in its complaint. To this report the defendant excepted, and when the same was brought on for trial before his Honor, Judge Benet, he reversed the master’s report, and ordered the case back to the master for a trial.
From Judge Beliefs order the plaintiff now appeals to this Court. Bet the order and the exceptions be set out in the report of the case.
1. We may as well remark at the outset, that the decision of this Court in the case of Ludden & Bates Southern Music House v. Dusenberry, 27 S. C., 464, fixes the character of a lease, the paper sued on in this action. It is true, the case of Singer Man. Co. v. Smith, 40 S. [120] C., 529, did hold that the paper writing- then in question was not a lease but a mortgage; but it is well to remember that the terms of the latter instrument were different from that in Ludden & Bates &c. v. Dusenberry, supra, and also that this Court did not undertake to overrule the case just cited. This being so, we must recognize its authority as controlling here, certainly as fixing the character of the paper sued on.
2 The Circuit decretal order of Judge Benet, now under appeal, is bottomed upon the principle, that now, under the principles of our Civil Code of Procedure, there is no longer a separate tribunal for the trial of actions on the law side, nor is there a separate tribunal for the trial of equity actions. Both are to be heard in the Court of Common Pleas. A suitor may embody in his complaint a statement of facts entitling him to legal relief, and in the same complaint a statement of facts entitling him to equitable relief, grownng out of the same transaction. So, too, as to defendants; they may set up in their answers legal and equitable barriers to plaintiff’s recovery, provided they relate to the same transaction. Here the plaintiff brought its action for claim and delivery — a demand on the law side of the Court. The defendant, however, admitting the legal demand of plaintiff, endeavored to show why, in equity, the plaintiff was not entitled to the judgment prayed for, by alleging that plaintiff’s legal demand originated in fraud. The difficulty the plaintiff alleges to be in the way of the defense interposed by defendant is that arising under some of our decisions. Talbott & Sons v. Padgett, 30 S. C., 171; Singer Man. Co. v. Smith, supra. It occurs to us that the parties here overlooked the case of Irby v. Williams, 15 S. C., 458, where this Court held that a counter-claim could not be interposed in an action for claim and delivery, except where equitable relief may be demanded under exceptional circumstances, and quoted with approval section 767 of Mr. Pomeroy’s work on Remedies and Remedial Rights, which section reads thus: “It would seem that in an action to [121] recover possession of specific chattels, no counter-claim is possible, tmless, perhaps, eqiiitable relief may be demanded imder some exceptional circumstances'1'1 (italics ours). In the case last cited, this relief, upon the ground of equity, was denied the plaintiff, because the facts, wherein it was claimed in equity arose, were separate and distinct from1 the matter in contention between the parties to that action. Thus it will be seen that this Court has not denied that there may be an equitable demand in the defendant against, a plaintiff’s action for claim and delivery. With how much more force does the .propriety, nay, the right, in the defendant having her equitable defense considered, when in her answer she alleges that she was induced to sign this contract by a fraud being practiced upon her in regard thereto. It is not alleged as fraud practiced upon her in a collateral or distinct matter, but ^ fraud practiced upon her when she was induced to sign the lease. It makes no difference how perfectly instruments may be drawn, if fraud is practiced therein, the Court of Equity will lay bare the transaction. It must be remembered that no opinion was intended to be expressed by the Circuit Judge, nor does this Court express any opinion, as to the truth of the allegations set out in the answer. The demurrer admits all these allegations, for the time being, merely to contest their sufficiency in law as a defense. At the trial all these matters will be fully investigated, and the defendant will be put to the proof of what she charges in her answer to be true.
We do not feel that any further discussion by us is necessary. The Circuit Judge was correct in overruling the demurrer and ordering the cause back for trial.
It is the judgment of this Court, that the order appealed from be affirmed, and the case is remanded to the Circuit Court to carry out Judge Benet’s order.