Opinion
April 2, 1906.
Before DANTZLER, J., Barnwell, October, 1904, reversed
Action by Lillian Williams against James M. Ulmer and Minnie L. Ulmer. From decree for plaintiff, defendants appeal.
Mr. Robert Aldrich, for appellants, cites: 9 S.C. 283; 21 S.C. 17; 30 S.C. 335; 30 S.C. 614; Rule 57, of Circuit Court, 7 S.C. 235; 1 S.C. 283.
Mr. B.F. Rice, contra, cites: 41 S.C. 346; 24 S.C. 468; 34 S.C. 154; Williams v. Moore, 29 S.C.; 21 S.C. 17; Bail. Eq., 350.
April 2, 1906. The opinion of the Court was delivered by
In order to understand the questions arising in this appeal it is necessary to make clear the scope of the action as it appears from the complaint and the evidence. James M. Ulmer conveyed to his wife, Minnie L. Ulmer, on June 23, 1888, a tract of land containing about 335 acres, the consideration expressed in the deed being $1,500. The plaintiff, Lillian Williams, recovered a judgment against James M. Ulmer in November, 1899; execution was issued, and the sheriff thereafter laid off to the judgment debtor 135 acres of the tract of 335 acres as a homestead, and, under the execution, sold the remaining 200 acres to the plaintiff. The plaintiff then filed this complaint, setting up two causes of action; in the first, alleging that the defendant was the owner of the 200 acres of land, and that he had conveyed it to his wife for the pretensive consideration of $1,500 in fraud of plaintiff and other creditors, and asking that the deed be set aside; and in the second, alleging that she was the owner of the 200 acres of land, and demanding judgment for recovery of possession. In the description of the land in both causes of action one of the boundaries referred to is "homestead lands of James M. Ulmer." The answer was a general denial.
Upon hearing the evidence taken by the master, the Circuit Judge, Hon. C.G. Dantzler, filed a decree in which he said: "But I have carefully read the testimony reported, and am satisfied that the deed in question was executed under `inequitable circumstances,' and my conclusion is that as a deed of conveyance, it should not and cannot stand. But I am not satisfied that the defendant, Minnie L. Ulmer, was a participant in, or partaker of, such inequitable transaction; and, therefore, the money paid by her should be refunded to her, the deed in question standing `as a security for the money paid.'" The amount paid by Mrs. Ulmer which she was entitled to have refunded was fixed by the Circuit Judge at $600. The decree provided that the master sell "the tract or parcel of land mentioned and described in the complaint" and from the proceeds pay to Minnie L. Ulmer the sum of $600 and the costs and expenses of the action, and turn over the surplus to the clerk to be held subject to the further order of the Court.
The record contains this account of the subsequent proceedings: "That plaintiff's attorney served notice of appeal from said judgment to the Supreme Court and thereafter plaintiff's attorney made an ex parte motion without notice to defendant's attorney, who appeared for them in the action, before Judge Dantzler upon the proceedings in the Court while he was holding Court in Sumter, S.C. in the 3d Circuit, to correct an alleged clerical error on the part of and by Judge Dantzler in his said decree, which motion was granted, as appears by the letters and orders of Judge Chas. G. Dantzler attached to and by him made a part of his said decree on the alleged ground of its being a clerical error, the homestead thus defeated not being the subject of the contention either in the pleadings or the argument." The following is the order made by the Circuit Judge to which reference is made in the foregoing statement: "It being made to appear that in the decree heretofore rendered in the above stated cause on October 1st, 1904, by a clerical error, the lands described in the complaint were ordered to be sold by the master of Barnwell County; whereas, it should have been ordered that so much of the lands described in the deed from J.M. Ulmer to Minnie L. Ulmer, dated the 23rd of June, 1888, containing two hundred (200) acres, more or less, be sold by the said master.
"It is, therefore, ordered, that the Clerk of Court for Barnwell County do forthwith add and annex the following order to the said decree rendered in this cause on October 1st, 1904. It is ordered, that all that tract of land now in the possession of Minnie L. Ulmer containing 200 acres, more or less, which lands were conveyed to said Minnie L. Ulmer by James M. Ulmer on the 23d day of June, 1888, and are therein described and known as the homestead of J.M. Ulmer, be sold by the master of Barnwell County on salesday in December next or at some subsequent salesday; and that the proceeds arising therefrom be applied in all respects as heretofore provided and ordered in the decree rendered herein on October 1st, 1904."
The defendant's appeal from this last order must be sustained. The Court might have adjudged that although Mrs. Ulmer was entitled to receive back the $600 advanced for the payment of Ulmer's debts, yet she must exhaust the other lands conveyed to her, namely, the homestead, before she could subject the surplus which the plaintiff claimed; and possibly it would have been within the scope of the action, though on that point we express no opinion, to order the homestead sold and the proceeds applied to the payment of the $600 due Mrs. Ulmer, in order to ascertain how much would have to fall as a prior claim on the land subject to the plaintiff's demands. But the first decree so far from doing this contains no intimation that the homestead is to be subjected, and expressly orders the lands described in the complaint which constituted the surplus over the homestead to be sold for the satisfaction of Mrs. Ulmer's claim. The second decree, on the contrary, ordered the homestead itself to be sold for that purpose, and was, therefore, entirely irreconcilable with the first. The change we must regard far more than the correction of a clerical error. It was not a matter of form, and was not clearly the result of the views expressed in the opinion. The first decree in no wise affected the homestead, while the second destroyed it completely.
Such a radical change cannot be made out of term time when the Circuit Judge is in another circuit, or on an ex parte application. "As is said in 2 Dan. Ch. Pr., 1233, in speaking of rectifying decrees: `In cases, however, in which a clerical error has crept into the decree, or in which some ordinary direction has been omitted, the Court will entertain applications to rectify it, even though it has been passed and entered. * * * It is, nevertheless, to be observed, that it is a principle of the Court, that no alteration can be made in a decree on motion without a rehearing, except in a matter of clerical error or of form, or where the matter to be inserted is clearly consequential on the directions already given.'" Chafee v. Rainey, 24 S.C. 17; Barrett v. James, 30 S.C. 329, 9 S.E., 263; Lorick Lowrance v. Motley, 69 S.C. 570.
The judgment of this Court is, that the decree of Judge Dantzler, dated November 7, 1904, be reversed, without prejudice to any right the plaintiff may have to move the Circuit Court for leave to amend his complaint or to file a supplemental complaint.