Rabb v. Patterson

The opinion of the court was delivered by Mr. Justice Pope.

This appeal presents some additional phases in a controversy that has been conducted in our courts since the year 1884. Its history may be traced in 29 S. C., 278, 32 Id., 194, and 38 Id., 138, and having been so fully ventilated already, will require but little further statement. Some reference to the facts ought, however, to be made, to make the present issue intelligible.

A tract of land lying in Fairfield County, in this State, was conveyed to a trustee in'1867. In 1877, that trustee, in flagrant violation of his trust, conveyed the land to one Flenniken, who was fully cognizant of that. fact. Flenniken sold the land to an unlettered colored man, taking his bond and mortgage to secure the purchase money. This bond and mortgage were assigned to Giles J. Patterson for value. After the assignment thereof to said Patterson, the colored man reconveyed the land to Flenniken. Action was brought by the cestui que trust named in the trust deed against Flenniken to uproot the conveyance to him of the trust lands in 1884, and a notice of Us pendens was then filed. In 1885, said Flenniken conveyed his entire estate to James A. Brice, as assignee, for the benefit of his creditors. Giles J. Patterson brought an action against James A. Brice, as assignee, and to foreclose his mortgage, and refused to make Cassandra H. Rabb a party to his suit; and this action of Patterson ripened into a judgment in June, 1887, including therein a requirement that James A. Brice, as assignee, pay to said Patterson $201, which Brice, as assignee, had realized from rents of the trust lands. Patterson purchased the lands under his judgment, and went into possession thereof in 1888. The Supreme Court filed its judgment in favor of Rabb and against Flenniken in 1890. In order to retain his possession of the land as the owner thereof, Patterson began his action in 1890, which terminated adversely to all his claims in 1893.

However, in 1891, Mrs. Rabb and her new trustee began her action against Patterson to collect the $201, which had been collected by him from Brice for the rents in 1886 and 1887, and also to have him pay the five years’ rent which had accrued while he was in possession, and this is the action we are now *535 called upon to consider. It should be stated that Patterson having died in December, 1891, the action was continued against his personal representative, Mrs. Patterson, as his executrix. She vigorously denied any responsibility therefor on several grounds. All the issues came on to be tried before his honor, Judge Ernest Gary, who, after all the evidence, oral and documentary, had been considered by him, filed his decree in January, 1894, wherein he adjudged that the plaintiffs recover of the defendant, Mrs. Patterson, as executrix, $800 for rents and profits during the five years the land was in Giles J. Patterson’s control, and an additional sum of $201, received by him of Brice, as assignee, for rent, but the complaint was dismissed as to Brice, as assignee. From this decree Mrs. Patterson has appealed upon ten grounds, which we will consider in their order.

1 “1st. Because his honor erred in holding that on the 26th day of July, 1893, Judge Witherspoon passed an order continuing said cause in the name of the executrix, the said M. Virginia Patterson.” Strict accuracy in stating the result of the order of Judge Witherspoon was not observed by Judge Gary in his decree, for really Judge Witherspoon declined to pass the order referred to, on the ground that, under a decision of court (Parnell v. Maner, 16 S. C., 348), the plaintiffs had the right to continue the cause against the executrix without any order therefor from the Circuit Court. However, this inadvertency on the part of Judge Gary is immaterial, and needs no further attention.

2 As we will discuss the principles of the law governing the 2d, 3d, and 4th exceptions, we will consider them in a group. They are as follows: “2d. Because his honor erred in finding and holding that Giles J. Patterson entered into and was in possession of the premises described in the complaint in this action simply as a trespasser. 3d. Because his honor erred in his conclusion of law that the defendant, M. Virginia Patterson, as the executrix of the will of said Giles J. Patterson, deceased, is chargeable with the rental value of the said premises for the years covering the period the said Giles-J. Patterson was in possession of the same, and in directing judgment to be entered against said defendant, as executrix as *536 aforesaid, for the sum of $800, after deducting therefrom $64.17, the amount of taxes paid by Giles J. Patterson on said premises. 4th. Because his honor erred in not holding that the said defendant, as executrix as aforesaid, if liable at all in this action, can only be held liable for the rents and profits actually received, which were shown by the testimony to amount to $502.18, out of which taxes assessed on said premises were paid amounting to $64.17.”

It seems to us that the Circuit Judge erred in holding that the appellant’s testator went into possession of the land in question as a bald trespasser; on the contrary, we think he took possession under a bona fide claim of right as authorized by a judgment of the court. The fact that the court has eventually held that the claim of the testator was unfounded, cannot affect the character of his possession. There is no doubt of the fact that Mr. Patterson went into possession as the purchaser at a sale made under a judgment of foreclosure obtained in an action for the foreclosure of a mortgage brought against a person who then held the legal title to the mortgaged premises; and there is little doubt that he then supposed, and had reason to suppose, that he had acquired a good title to the premises, for the proceedings show that two of the Circuit Judges and one of the Justices of this court were manifestly of that opinion. We think, therefore, that even if Mr. Patterson were now living, he could only be required to account for the rents and profits actually received by him, and not for the “rental value” of the premises. As was said by Johnson, Ch., in his Circuit decree in Johnson v. Lewis, 2 Strob. Eq., on page 160, approved afterwards by the Court of Appeals: “The rule is that if one comes tortiously into possession of an estate, he ought not to be spared, and ought to be charged to the extent of what it was capable of producing; but if he enter rightfully, and can show what the actual income was, that will determine his liability * * * The same principle ought, I think, to apply when the party in possession believes that the right of property was in himself, and has been thrown off his guard by the belief that he was not liable to account.” This view was fully sustained *537 by the cases of Jones v. Massey, 14 S. C., 292; Thomson v. Peake, 38 Id., 440, and Bradford v. Buchanan, 39 Id., 239.

It seems to us that the point of distinction lies in the fact that one who goes into possession of the land of another as a bald trespasser, or, as some of the cases express it, acquires the possession by force or fraud, he is entitled to no consideration at the hands of the court, and the strictest rule of accountability is, therefore, applied to him; but when one goes into possession under bona fide claim of right, though it may eventually prove to be unfounded, he is not to be punished for his honest mistake, but is only required to account for such rents and profits as he has actually received, and not for the “rental value” of the premises. To show that one who goes into possession under an honest, though mistaken, belief of right, is not to be treated as a trespasser when called upon to account for rents and profits, see what is said by Johnson, Ch., in his Circuit decree in Rainsford v. Rainsford, McMull. Eq., at page 336, and by Harper, Ch., in delivering the opinion of the Court of Appeals in Ridelhoover v. Kinard, 1 Hill Ch., at page 381. The cases cited by counsel for respondent are not in conflict with this view; for in Boyce v. Boyce, 6 Rich. Eq., 302 , the defendant, Starr, not only went into possession as a bald trespasser, but he also acquired possession by an open defiance of an order of injunction made in a case to which he had made himself a party by proving his claim. In Kirkpatrick v. Atkinson, 4 S. C., 126, the defendant, Atkinson, acquired possession by fraud, and in Maner v. Wilson, 16 S. C., 469, the defendants went into possession under a paper which, though in the form of an absolute deed, they knew was intended as a mortgage.

But even if Giles J. Patterson could be regarded as a trespasser in taking possession of this land (and we have just held that such was not the case), it is very clear that his executrix cannot be charged with anything more than the amount actually received, the amount that actually enured to the benefit of her testator’s estate. The foundation of plaintiffs’ claim, their cause of action, so to speak, was the alleged trespass of the testator, and under the maxim, actio personalis moritur cum persona, the plaintiffs’ cause of action against the testator would not *538 survive agaiust his executrix except to the extent of enabling plaintiffs to recover against appellant whatever amount may have enured to the benefit of her testator’s estate from his alleged tort. See Chalk v. McAlily, 10 Rich., 92 ; Chaplin v. Barrett, 12 Id., 284; Huff v. Watkins, 20 S. C., 477. The act of 1892 (21 Stat., 18, approved 20th December, 1892,) cannot apply to this case, and has not, therefore, been considered. The principles here announced dispose of the second, third, and fourth exceptions.

3 The fifth exception is in these words: “Because his honor erred in not holding and adjudging that, under the circumstances of this case, the liability of Giles J. Patterson or his executrix to account for the rents and profits of said premises should be restricted to the 1st of April, 1890, when the deed of conveyance by David B. Flenniken to the plaintiff, Edwin J. Babb, as trustee, was made under the decree in the case of Cassandra H. Babb v. D. B. Flenniken, or to the 12th July, 1890, when the plaintiffs were enjoined from taking possession of said premises under order in the case of Giles J. Patterson v. Cassandra H. Rabb et al." We are not impressed by this exception. Giles J. Patterson took possession of these lands early in 1888. He and his estate have had the rents and profits since that date. Under the decision of this court in Patterson v. Rabb, 38 S. C., it has been determined that this property was not his on 1st January, 1888, nor at any moment after that time; on the contrary, this court decided that this was the property of the plaintiffs all that time. Therefore, to excuse him or his estate from paying rent from 1st January, 1888, to 1st April, 1890, or 12th July, 1890, would be to take the property of Mrs. Babb and give it to the estate of Patterson. We have been pointed to no good reason for such course on our pai't. In our judgment, it would be against equity and good conscience. Let this exception be overruled.

4 “6th. Because his honor erred in not holding and adjudging that the plaintiffs by their neglect to demand and obtain judgment for rents and profits in the case of Giles J. Patterson (M. V. Patterson, as trustee for herself and children, subsequently substituted as plaintiffs,) v. Cassander H. *539 Rabb et al., and by their failure to avail themselves of the reference or remedy in that action provided by section 243 of the Code of Procedure, are precluded from obtaining a decree for rents and profits in this action.” It must be remembered that the action of Patterson v. Rabb was that brought by Patterson himself for his own purposes — namely, the upholding of his title to the trust lands — and this was the issue Mrs. Rabb was brought to take part in settling. When A sues B to recover a specific tract of land or a specific sum of money, B may content himself with defending himself against the claim of A ás setup in his complaint — he need go no further, although he may go further if he chooses. Not so, however, with A; he must exhaust himself in regard to the specific tract of land or specific sum of money sued for — afterwards, he cannot make as a cause of action against B any claim he had as to the land or to the money.

So far as section 243 is concerned, it may be remarked that it does provide for a bond to indemnify the opposite party from damages, and that this remedy may be had in the case to ascertain damages, “by a reference or otherwise;” but then this bond only operated from 12th July, 1890; and if it was permissible to announce that it covered rents and profits as well as other items of “damages,” what would become of the rents and profits for two and a half years before that date? and also what would become of the $201 received from James A. Brice as assignee in 1887? We think it better to say that the term damages may cover rents and profits in some cases, but it must be evident that to so hold in this action would be to require the plaintiffs to split up their claims for rent into several actions. Besides, it must be remembered that such “damages,” under the injunction bond, may not only be obtained under “reference” proceedings, but the same section of the Code provides that it may be done “otherwise” than under “reference.” To pursue the subject further is unnecessary— it is untenable.

*540

5

*539 The seventh exception is as follows: “Because his honor erred in holding that the said defendant, as executrix as aforesaid, is also chargeable with the sum of $201, which was *540 applied in part to pay costs and balance ($185.63) paid to Giles J. Patterson under order of the court in the ease of Giles J. Patterson v. James A. Brice, as assignee of the estate of David B. Flenniken, and in directing the entry of judgment therefor in favor of plaintiffs against this defendant, as executrix as aforesaid, when no appeal was taken from said order, and at the time of such payment there was no valid existing order impounding the rents in the hands of Brice as assignee.” The decree of the Circuit Judge, it seems to us, contains a slight error in the amount charged against the appellant, on account of the money received from Brice, as assignee, by Patterson, and which was realized from the rents of the premises in question. While there is no doubt that the money in the hands of Brice, as assignee, arising from that source, was realized from the lands adjudged to belong to the plaintiffs, yet neither Patterson nor his executrix can be charged with anything more than they actually received, and the undisputed testimony is that Patterson received only the sum of $185.63, and the balance of the $201 was applied to the costs incurred by Brice, as assignee, on the action for foreclosure. Brice was a party to this action, and the plaintiffs did not except to that part of the decree which dismissed the action as to him. All the plaintiffs can recover against Mrs. Patterson as executrix, on account of this $201, is the sum of $185.63.

6 “8th. Because his honor erred in holding and concluding that the sum of money paid by James A. Brice to Giles J. Patterson under the order of court was a trust fund belonging to the plaintiffs; and that Giles J. Patterson received the fund with the knowledge of the trust attached to it, when Judge Wallace by his decree, which was then of force, had dismissed the complaint in the case of Cassandra H. Babb v. D. B. Flenniken.” We do not see how these funds were not trust funds. They came as rent from the trust lands, and Cassandra H. Babb, under the terms of the trust deed, was to receive such rents from her trustee. Certainly Mr. Patterson knew all about these matters. As to the decree of Judge Wallace, dismissing the complaint, operating to release the trust character from those funds, we cannot admit such a doctrine, *541 when it is recalled that an appeal was taken from such decree, and was sustained by this court. The exception is not tenable.

7 “9th. Because his honor erred in not holding that the plaintiff, Cassandra H. Babb, having elected to take a personal judgment for rents and profits, embracing the years 1886 and 1887, against David B. Flenniken in the case of Cassandra H. Babb v. David B. Flenniken, to which action neither James A. Brice, as assignee, nor Giles J. Patterson was made a party, the claim of rents and profits for said years was merged in said judgment against David B. Flenniken, and there is no privity between the plaintiffs and Giles J. Patterson, or his executrix, or equity, which would entitle the plaintiffs in this action to recover the said sum of $201 from the defendant, M. Virginia Patterson, as executrix as aforesaid.” We confess ourselves unable to see what connection Mrs. Patterson, as executrix of Giles J. Patterson, has with the proceeding of the plaintiffs against David B. Flenniken, and, therefore, we cannot perceive the pertinency of any inquiry by us into what entered into that judgment. If it is true that Giles J. Patterson received $201 of the trust estate belonging to the plaintiffs here, and that he had no legal right to any part of that fund, it makes no difference what, other people have been unsuccessfully sued to try and recover this fund. To enable the present plaintiffs to recover this fund from the estate of Giles J. Patterson, deceased, no privity need exist. It is the old case of a trust fund being taken possession of by one not entitled to hold it; when the trustee, or cestui que trust, who is entitled to hold it, comes and sues for it, he is entitled to a judgment for its recovery. Let the exception be overruled.

8 “10th. Because his honor erred in not adjudging that the plaintiffs, having commenced this action in violation of the order of an injunction made in case of Giles J. Patterson v. Cassandra H. Rabb et al., which restrained them, their attorneys, their agents, and servants, from collecting, receiving or intermeddling with the rents and profits of the premises described in the complaint, should not be allowed costs against the defendant.” We are inclined to think this point as now made comes too late. Certainly the Circuit Judge *542 made no express order on the subject of costs. We will not undertake to pass upon a question of this character raised for the first time in this court. At all events, costs follow the result except in equity cases, when the Circuit Judge may order differently if he sees proper. It seems to us that this question, at best, comes too late. If plaintiffs were enjoined from suing, that should have been so adjudged. Not having been so adjudged, this court will assume that all things were rightly done in the court below, no showing to the contrary having been made.

It follows from our preceding observations that the Circuit Court decree must be modified by having that decree fix the liability of Mrs. Patterson, as executrix, for the sum of $502.18, as the rents for which she, as said executrix, must pay, in lieu of $800, less the amount paid for taxes as ascertained by the decree; and that she, as said executrix, must pay the sum of $185.63 on account of the amount received by Giles J. Patterson from James A. Brice, as assiguee, instead of $201; but that in all other respects the said decree shall be affirmed.

It is the judgment of this court, that the judgment of the Circuit Court be modified as herein indicated, and that in all other respects such judgment be affirmed.