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DENT et al. v. BOLAR
Summary of Opinion: Dent et al. v. Bolar, Supreme Court of South Carolina (June 12, 1923)
Factual and Procedural Background
The petitioners are the heirs at law and distributees of John B. Dent, who acquired a 90-acre tract known as the "Adams tract" in December 1890 and died in 1899. In March 1919 Rose Whittaker (mother of the defendant Rebecca Bolar) brought an action in the County Court seeking, among other things, a decree requiring the petitioners to convey the land and a cancellation/marking paid of a note and mortgage alleged to have been given to John B. Dent. The petitioners (defendants in that action) asserted title, and a jury returned a verdict awarding possession and title to them; Judge Whaley granted a new trial. Upon a later call of that county-court case, evidence showed the land's value exceeded $3,000, and Judge Whaley dismissed the case for want of jurisdiction.
In October 1919 an action between the same parties was begun in the Court of Common Pleas for Richland County concerning the same tract. Rose Whittaker died in 1920; her daughter remained on the land until December 1920, after which Rebecca Bolar moved onto the land. Petitioners gave Bolar notice to quit in January 1921; she refused, and a magistrate ordered ejectment, but on appeal Judge Townsend of the Circuit Court reversed the magistrate's judgment because an action was then pending in the Court of Common Pleas and the question of title had been raised. It was represented at that hearing that the defendant's heirs had not taken steps to have an administrator appointed and to substitute the administrator in the pending action.
Petitioners alleged they took repeated steps to bring the common-pleas case to trial, ultimately obtaining an order dismissing that case for want of prosecution (an order signed by Judge Bowman "bearing the consent of counsel for the defendants herein"). Petitioners then filed the present petition asking that Rebecca Bolar be ejected from the Adams tract, that she and other persons claiming under Rose Whittaker be enjoined from reentering, and that petitioners be put into possession. The trial court (the judge whose judgment is appealed) granted that relief, relying in part on a prior case (Mitchum v. Shaw) as authority that two discontinued actions bar further action.
The defendant appealed, taking two exceptions: (I) that the court erred in finding two actions for recovery had been brought by the defendant (arguing there is no record of even one such action by defendant and asserting continuous possession since 1892 and that no such issue was raised by the pleadings); and (II) that the court erred in decreeing ejectment and issuing a perpetual injunction because defendant had set up title and adverse possession and thus was entitled to a jury trial of the legal issues.
Legal Issues Presented
- Whether Section 123 of the Code of Civil Procedure (limiting the bringing of multiple actions) barred the defendant from asserting title or otherwise justified the ejectment and injunction because two prior actions involving the same tract had been brought and discontinued.
- Whether, because title to real estate was raised in the defendant's return and answer (including a claim of title and adverse possession), the defendant was entitled to a jury trial and therefore could not be ejected by summary process or by the decree entered without such trial.
Arguments of the Parties
Appellant's (Defendant Rebecca Bolar) Arguments
- There is no record that the defendant (or her ancestor) brought any action for recovery of the land; rather, they have had continuous possession since the land was purchased in 1892.
- No issue concerning prior actions and the bar under Section 123 was presented by the pleadings in the case below.
- The defendant asserted title in herself and adverse possession in her return and answer, which entitled her to a trial by jury on the legal issues.
- Counsel for appellant cited authorities including (inter alia) 29 Cyc. 1036 (noting that an action to quiet title is not for recovery of real property), 10 S.C. 317 and 1 Strob., 1 (on the effect of suits dismissed for want of jurisdiction), and Code Proc. 1912, Sec. 312 and 60 S.C. 599 (regarding jury trial rights).
Respondent's (Petitioners') Arguments
- Petitioners contended the defendant and other heirs of Rose Whittaker had brought two prior actions involving the same tract and that both had been discontinued by formal order; under Section 123 the defendant could not again attempt to litigate the title.
- They argued the defendant had failed to provoke adjudication by neglecting to secure appointment/substitution of an administrator and had even consented to dismissal for want of prosecution, yet remained in possession and refused to remove.
- Respondent's counsel cited cases they regarded as controlling, including Mitchum v. Shaw (98 S.C. 177), 112 S.C. 10, and 77 S.C. 138.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 29 Cyc. 1036 | Cited by appellant's counsel for the proposition that an action to quiet title is not an action for recovery of real property. | Listed among citations by appellant's counsel; the Court did not expressly rely on this authority in its reasoning as stated in the opinion. |
| 10 S.C. 317 | Cited by appellant's counsel for the proposition that a suit dismissed for want of jurisdiction would not count as one action. | Listed among citations by appellant's counsel; the Court did not adopt this as its controlling rationale in the published opinion. |
| 1 Strob., 1 | Cited alongside 10 S.C. 317 concerning the effect of suits dismissed for want of jurisdiction. | Cited by appellant's counsel; the Court's opinion does not expressly apply this authority. |
| Code of Civil Procedure 1912, Sec. 312 | Cited by appellant's counsel regarding the right to a jury trial. | Cited by counsel; the Court's analysis upheld the necessity of jury determination when title to real estate is in issue, consistent with the principle asserted. |
| 60 S.C. 599 | Cited by appellant's counsel in connection with the entitlement to jury trial. | Cited by counsel; the Court sustained the exception that a party asserting title/adverse possession is entitled to a jury trial and reversed the summary ejectment. |
| Mitchum v. Shaw, 98 S.C. 177; 82 S.E. 401 | Held that where two actions involving the title to the identical tract have been brought and both discontinued, no further action may be brought (as referenced in the trial court's opinion). | The trial judge below invoked this case to support ejectment; the opinion notes the trial court's reliance on Mitchum, but the Supreme Court held Section 123 did not apply to the present defense and reversed the ejectment order. |
| 112 S.C. 10 | Cited by respondents' counsel as among authorities controlling the case (specific principle not stated in the opinion). | Cited by respondent's counsel; the Court's opinion does not specifically discuss or apply the substance of this citation. |
| 77 S.C. 138 | Cited by respondents' counsel as among authorities controlling the case (specific principle not stated in the opinion). | Cited by respondent's counsel; the Court's opinion does not specifically discuss or apply the substance of this citation. |
Court's Reasoning and Analysis
The Supreme Court considered the exceptions taken by defendant and reviewed the legal effect of the prior proceedings and the nature of the present petition.
First (Exception I), the Court concluded that Section 123 of the Code of Civil Procedure — which forbids bringing more than two actions — does not aid the petitioners because the provision governs the bringing of actions, not defenses. The Court emphasized that Rebecca Bolar had not "brought this action"; her raising of title in her return/answer is a defensive position. Because the statutory bar on successive actions applies to parties who bring suits (plaintiffs), and not to defenses interposed by a party in response to an action, Section 123 was inapplicable. The Court therefore sustained the first exception.
Second (Exception II), the Court relied on the prior holding of Judge Townsend (the Circuit Court judge) that, since title to real estate was involved, the issue presented an issue for a jury. The Supreme Court stated that until Judge Townsend's ruling is reversed by competent authority, it is the law between the parties. The Court characterized that holding as good law and concluded that the appellant could not be ejected by summary process where she had asserted title and adverse possession entitling her to trial by jury. On this basis the Court sustained the second exception as well.
The Court therefore reversed the order of the trial court which had directed ejectment and a perpetual injunction. Although the trial court had relied on Mitchum v. Shaw (98 S.C. 177) to justify barring further action and ordering ejectment, the Supreme Court held that the statutory bar cited did not apply to the defendant's defensive position and that summary dispossession without jury trial was improper where title was in issue.
Holding and Implications
REVERSED.
Holding: The Supreme Court reversed the judgment ordering ejectment and a perpetual injunction against the defendant, Rebecca Bolar.
Implications:
- Direct effect: The trial court's decree ejecting the defendant and enjoining re-entry was reversed; the defendant may not be summarily ejected where she has asserted title and adverse possession and thus is entitled to a jury trial on those legal issues.
- Statutory scope clarified in this opinion: Section 123's limitation on bringing successive actions was held not to apply to a party's defensive pleadings in an action brought by another — the statute governs actions brought, not defenses asserted in an existing action.
- No broader precedential ruling beyond these holdings is articulated in the opinion; the Court reversed the specific ejectment and injunction entered below and directed that the defendant's entitlement to jury determination of title be respected. The opinion does not purport to establish a new general rule beyond the application to the parties and circumstances presented.
This summary is based exclusively on the information contained in the provided opinion and does not add facts or legal conclusions beyond those set out in the opinion text.
June 12, 1923. The opinion of the Court was delivered by
MR. JUSTICE FRASER.
The judgment appealed from sets out the facts and reads:
"This cause comes before me in the form of a petition, which prays that the defendant above named be ejected from a certain tract of land in this county, and that she and others claiming title to the said tract be forever enjoined from re-entering upon the same. The tract of land in question comprises some 90 acres, known as the `Adams tract,' situated about 7 miles northeast of the City of Columbia. It appears that in December, 1890, John B. Dent acquired the tract of land in question; that he died in the year 1899, and that the petitioners are the sole heirs at law and distributees of the said John B. Dent, and tenants in common of the aforesaid tract.
"During the month of March, 1919, one Rose Whittaker, mother of the defendant herein, brought an action in the County Court, in which, among other things, she prayed that the Court decree and order the petitioners herein, defendants in that action, to make a conveyance of the premises in question, and that a certain note and mortgage alleged to have been given by Rose Whittaker to John B. Dent, deceased, be marked paid, canceled, and delivered up. The defendants, petitioners here, set up their title to the said premises, and upon trial of the cause a verdict was rendered by the jury awarding the possession and title in the premises to the defendants, who are the petitioners herein. Thereupon Judge Whaley, of the County Court, granted a motion for a new trial. Upon the call of the case in the County Court evidence was introduced to show that the value of the land in question was in excess of $3,000.00, and Judge Whaley by formal order dismissed the case for want of jurisdiction.
"In the month of October, 1919, an action was begun in the Court of Common Pleas for Richland County between the same parties for the same purposes and involving the same tract of land. Some time during the year 1920 Rose Whittaker died, and one of her children remained on the land until December of that year, when she removed, and another daughter, Rebecca Bolar, the defendant herein, moved upon the said land. In the month of January, 1921, the petitioners herein gave Bolar notice to quit. This she refused to do, and thereupon the matter was turned over to Magistrate Wilson, of Richland County, who, after proper notice and hearing of the cause, issued his order ejecting Rebecca Bolar from the said land. Bolar then filed bond and appealed the case to the Circuit Court, where Judge Townsend, after hearing, issued his order reversing the judgment of the Magistrate, for the reason that an action was then pending in the Court of Common Pleas, and because the question of title had been raised. At this hearing it was represented to the presiding Judge that no effort was being made by the defendant and other heirs of Rose Whittaker to have an administrator appointed and proper substitution made. In his order Judge Townsend mentions the fact that counsel for Rebecca Bolar represents that such action will be taken at once, in order to expedite the trial of the cause.
"Counsel for the petitioners herein now represent to me that repeated efforts were made by them to bring the case to trial, and finally they served upon the defendant's counsel a notice of a motion to dismiss the case for want of prosecution. In the record there appears an order, signed by Judge Bowman, bearing the consent of counsel for the defendants herein, dismissing the case for want of prosecution. The petitioners now bring this petition, praying for an order ejecting the defendant, Rebecca Bolar, and for an injunction against her re-entry, and further pray that they be forthwith put into possession. The defendant, by counsel, answers the petition, setting up title in herself and other heirs of Rose Whittaker. At the time the petition was served there was also served an order of Judge Peurifoy requiring the defendant to show cause why she should not quit, vacate, and remove from the tract of land above mentioned. This order was returnable at the last term of the Court of Common Pleas, but was not heard; it appearing that no suitable opportunity presented itself for such hearing.
"At the hearing of the matter today, counsel for the defendant files his return, praying that his answer heretofore filed be so considered. The petitioners now traverse this return, and represent to me that their prayer should be granted, because the defendant herein has already brought two actions for the recovery of the tract of land in question; that both actions have been discontinued by formal order, and that under the provisions of Section 123 of the Code of Civil Procedure the effect of the return to the rule is to attempt to adjudicate for the third time the question of the title to the tract of land aforesaid.
"I am constrained to so hold. The defendant and the other heirs of Rose Whittaker have had ample opportunity to have the question of this title adjudicated. They have failed so to do. They have in effect refused to allow the case to be tried, by failing to have proper substitution made, as has been pointed out above. Further, they have even consented to an order dismissing the case for want of prosecution. But they have not removed from the land. In other words, they are endeavoring to put the petitioners herein upon proof of their title, and proposing to require such petitioners to become plaintiffs in an action, where every particle of record evidence shows title in them. In the meantime, the defendant remains upon the premises, refusing to remove and also refusing to bring the cause to trial. The need for the relief prayed for is apparent, and should be speedily granted. I am strengthened in this opinion by reference to the case of Mitchum v. Shaw, 98 S.C. 177; 82 S.E., 401, where the Supreme Court held that, where two actions involving the title to real estate — the identical tract, as in this case — had been brought, and both had been discontinued, no further action might be brought. As in that case, we have here two actions which were confessedly to recover possession of the same land; they were against the same defendants, and they set up the same offensive title.
"It is, therefore, ordered, adjudged, and decreed that the defendant, Rebecca Bolar, do forthwith quit, vacate, and remove from the premises above mentioned, to wit, the tract of land known as the `Adams tract,' comprising 90 acres, more or less, situated about 7 miles northeast of the City of Columbia, in the County and State aforesaid. It is further ordered that the Sheriff of Richland County do forthwith put the petitioners herein in possession of the said tract. It is further ordered that the defendant, Rebecca Bolar, and all other persons claiming or to claim as heirs at law of Rose Whittaker, deceased, be, and they are hereby, restrained and forever enjoined from entering upon the above-mentioned premises.
The exceptions are:
I. "His Honor erred in finding and concluding that two actions for the recovery of the tract of land in question had been brought by the defendant, in that (a) there is no record of even one such action by defendant, who, with her ancestor, has had continuous possession since the purchase of said land in 1892. (b) No such issue was raised by the pleadings in the case.
II. "His Honor erred in decreeing ejectment and issuing a perpetual injunction, in that the defendant set up by her return and answer title in herself, as well as adverse possession, which plea entitled her of right to a trial by jury of the legal issues raised."
I. Section 123 of the Code of Civil Procedure does not help the petitioners. Rebecca Bolar has not brought this action. That section forbids the bringing of more than two actions, and does not apply to a defense. The exception that raises this question is sustained.
II. Judge Townsend has already held that, inasmuch as the title to real estate is involved, the issue is one for a jury, and the appellant (in this Court) cannot be ejected by summary process. Until his holding is reversed by competent authority, it is the law between the parties. It is good law, anyway, and the order appealed from is reversed.
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