January 30, 1923. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
This case was commenced before a Magistrate, who rendered judgment in favor of the plaintiff, and the defendant appealed to the Circuit Court.
Section 407 of the Code of Civil Procedure of 1912, provides:
"Upon hearing the appeal the Appellate Court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits."
In dismissing the appeal, the Circuit Court gave judgment according to the justice of the case; and, for the reasons assigned, the judgment of the Circuit Court is affirmed.
MR. JUSTICES WATTS, FRASER, COTHRAN (in separate opinion) and MARION concur.
MR. JUSTICE COTHRAN (concurring):
Action to recover the price which the defendant agreed to pay the plaintiff for a right of way over certain land, in which it developed afterwards that she had only a life estate, which right of way was required by the County for highway purposes, and in the development of which the defendant was interested. The action was brought in a Magistrate's Court, and judgment was entered for the plaintiff in the sum agreed upon between Mrs. Jones, the plaintiff, and Rosaman, the defendant, $84.00. Upon appeal to the Circuit Court the judgment was affirmed. The defendant now appeals to this Court.
The only point discussed by the counsel for the appellant is that a life tenant cannot recover the price of the fee; that, the interests of the remaindermen not being affected by any contract that she may make, the defendant would acquire only the interest of the life tenant, for the value of which alone he should be required to pay. The cases cited ( Cureton v. Railroad Company, 59 S.C. 371; 37 S.E., 914; Railway Company v. Garrett, 85 S.C. 543; 67 S.E., 903; Trimmier v. Darden, 61 S.C. 236; 39 S.E., 373; Railway Company v. Reynolds, 69 S.C. 481; 48 S.E., 476; Railroad Company v. Colclough, 89 S.C. 555; 72 S.E., 494), sustain the appellant's contention. The difficulty, however, is in applying this principle to a case where the evidence is silent as to the interest which the defendant intended to buy. There is no contract in writing, no deed or even parol evidence, to indicate that the defendant proposed to buy and the plaintiff to sell a right of way of greater extent than the plaintiff was able to sell. For all that appears to the contrary, the defendant intended to buy the interest, which the plaintiff was authorized to convey.