McAbee v. Harrison

27 S.E. 539, 50 S.C. 39, 1897 S.C. LEXIS 6

• Court: Supreme Court of South Carolina
• Decided: July 13, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

In 1884, N. P. McAbee, the plaintiff, borrowed from the Spartanburg National Bank $302.40 on his note, with James F. Harrison and S. T. McCravy as indorsers, for the purpose of paying his indebtedness to the said McCravy. In order to indemnify them, he executed to them, jointly, a mortgage of his plantation, containing eighty-six acres of land. When the note matured, the bank notified S. T. McCravy and he notified the plaintiff. The plaintiff and James F. Harrison entered into an agreement, under which the plaintiff delivered possession of thirty acres of said land to James F. Harrison, and Harrison delivered to McCravy the money to pay the said note, which he did, and after scratching his name off the note, delivered it to Harrison. The said agreement was to be reduced to writing, but this was not done. After the death' of Harrison, the note and mortgage were found in a closet at his home. James F. Harrison made certain improvements upon the said thirty acres of land. James F. Harrison died in 1891, and thereafter the plaintiff tendered to the administrator of said Harrison $310, claiming that under the terms of the agreement aforesaid, he had the right to repurchase the said land upon the payment of that sum. The administrator refused to accept the money unless the plaintiff would pay interest on it. The plaintiff was, however, unwilling to pay interest unless the administrator would account for the rents and profits of the land. This action was commenced in consequence, of the failure of the parties to agree upon a settlement. In order to understand -clearly the issues presented by the pleadings, it will be necessary to set out in the report of the case the complaint and the answer. It was referred to the master to take the testimony and report the same to the Court. The case was heard by his Honor, Judge Townsend, who rendered a decree on the 19th of February, 1896, from which the defendants have appealed upon the exceptions which, together with the said decree, will also be set out in the report of the case.

The seventh exception was abandoned. The remaining exceptions raise the following questions: 1st. Was there error on the part of the Circuit Judge in his finding of fact as to the agreement between N. P. McAbee and James F. Harrison? 2d. Was there error on the part of the Circuit Judge in adjudging that the defendants were not entitled to compensation for the improvements erected by James F. Harrison? 3d. Was there error on the part of the presiding Judge in not holding that the plaintiff, by his conduct and laches, waived his right to redeem said land? 4th. Was there error on the part of the Circuit Judge in not allowing the defendants the amounts expended for taxes?

1 After a careful consideration of all the testimony, the Court is satisfied that the agreement between N. P. McAbee and James F. Harrison is correctly set forth in paragraph 2 of the complaint, except wherein it is alleged that the said Harrison contracted and agreed to hold the land as the property of the plaintiff. He held the property as his own, and the title was to have been made to him, conveying the fee, but upon the conditions set out in the said paragraph. There is direct and positive testimony to the effect that Harrison was informed that Mc-Abee’s understanding of the agreement was that no interest was to be charged against him in case he was able to repurchase, as the rents and profits were to be in lieu thereof. When informed that McAbee understood the agreement as just stated, he said he would be glad if McAbee could redeem his land. There is also testimony that Harrison said he would work the land and try to make it pay all expenses. Our construction of the agreement is somewhat different from that placed upon it by the Circuit Judge. We agree with him that McAbee was not to pay interest on his indebtedness to Harrison, but we are of the opinion that Harrison was not to account for the rents and profits in case McAbee repurchased the land. This conclusion is strengthened by the fact that no account was kept of the rents and profits showing the amounts actually received from the land.

2 We will next consider the question as to the improvements. The improvements were made with the full knowledge on the part of Harrison of' the terms upon which he went into possession of the land. He was induced to make the improvements because he believed McAbee would not be able to repurchase the property and took his chances of losing the benefit of them. The erection of the buildings by Harrison, with full knowledge of the agreement between himself and McAbee, was at his own risk, and his estate cannot claim compensation for them.

3 The third question is that of estoppel by conduct and laches, which we will now consider. McAbee had the legal title to the land; Harrison had the right to a title conveying the fee thereof, upon the terms hereinbefore stated, yet he took no steps to divest McAbee of the legal title, and there is no testimony that he at aity time demanded of McAbee compliance with the terms of the agreement; on the contrary, he, time and again, acknowledged the right of McAbee to repurchase the land. Furthermore, when McAbee tendered the money to the administrator of Harrison, the parties in interest were willing to allow him to repurchase, if he had been willing to pay interest, and no objection was made that he was estopped by conduct and laches.

4 The last question is in regard to taxes. No such claim is made in the answer; but waiving such objection, under the construction which this Court has placed upon the contract, such claim cannot be allowed. Harrison was, under the terms of the agreement, the owner of the property, subject to the conditions therein mentioned, and it was his duty to pay the taxes.

It is the judgment of this Court, that the judgment of the Circuit Court be modified in accordance with the views herein expressed.