Opinion
13143
May 15, 1931.
Before RICE, J., Aiken. August, 1930. affirmed.
Action by Anna J. Dickerson against A.T. Oliphant. From an order refusing to change the venue defendant appeals.
The order of the Circuit Judge directed to be reported is as follows:
This matter comes before me on the motion of the defendant's attorney to change the place of venue from Aiken County to Bamberg County on the ground that the defendant resides in Bamberg County, and for that reason the issues should be tried there.
This is an action by the plaintiff to set aside a deed to real property conveyed by the plaintiff to the defendant which it is alleged was executed through fraud.
Section 376 of the Code of Procedure for 1922 reads as follows: "Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial, in the cases as hereinafter provided: 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property."
While the action is based upon fraud, still it clearly involves real estate, and the issues joined unmistakably call for the determination of the right or interest of the plaintiff in and to said real estate as contemplated by the section of the Code of Procedure quoted above.
A parallel case was considered by the Supreme Court entitled Bacot v. Lowndes, 24 S.C. 392, in which Chief Justice Simpson rendered a lucid opinion declaring the rule to be that the place of trial must be had in the county where the land is situated.
After hearing E.H. Henderson, Esq., for the defendant, and L.E. Croft, Esq., for the plaintiff, it is ordered that the motion to change the venue be, and the same is hereby, overruled, and that the venue remain in Aiken County.
Messrs. R.C. Hardwick and E.H. Henderson, for appellant, cite: Change of venue: Code Proc. 1922, Sec. 382. Place of trial: Code Proc., 1922, Secs. 376, 378; 40 Cyc., 58; 88 N.W., 755; 9 C.J., 1231; 61 S.C. 520; 10 S.C. 434; 28 S.C. 520; 10 S.C. 285; 40 Cyc., 59, 60, 61; 110 U.S. 151; 113 S.C. 114.
Messrs. Williams, Crofe Busbee, for respondent, cite: Actions for recovery of real estate to be tried where subject matter situated: Code Proc. 1922, Sec. 376. Real estate is subject of action: 9 S.C. 453; 17 S.C. 410; 9 N.Y. Sup., 801; 7 Words Phrases, 6707. Other actions controlled by Section 376: 114 S.C. 122; 103 S.E., 477; 13 S.C. 441; 24 S.C. 392. Action properly brought where real estate situated: 24 S.C. 397; 112 N.W., 550; Ann Cas., 1913-D, 664; 27 R.C.L., 792, 99 N.E., 302.
May 15, 1931. The opinion of the Court was delivered by
The Court is satisfied with the conclusions of the Circuit Judge in this case and his order is therefore affirmed. A further consideration tending to sustain the order is this:
We apprehend that there could be no question of the duty of the plaintiff, in order to protect herself from the claim of a purchaser or incumbrancer of the property affected by the action, to file under Section 388, Code Civ. Proc., notice of lis pendens: the action clearly being one "affecting the title to real property." This may possibly be in order if the action could be held within the jurisdiction of Bamberg County; but the fact that it is an action "affecting the title to real property" strikes the Court as conclusive that it is an action for the determination of the plaintiff's right or interest in the property, and therefore within the provisions of Section 376 of Code Civ. Proc.
The judgment of this Court is that the order appealed from be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER, and MR. ACTING ASSOCIATE JUSTICE JOHN I. COSGROVE concur.