Opinion
6602
July 23, 1907.
Before DANTZLER, J., Cherokee, November Term, 1906. Affirmed.
Action by C.D. Rippy et al. against A.J. Smith. From judgment for plaintiffs, defendant appeals.
Mr. N.W. Hardin, for appellant, cites: Consideration of new contract is extinguishment of old: 16 Ency., 865, 871; 11 Rich., 137; 61 S.C. 448; 2 Camp., 124, 383; 2 Stork, 417; 3 Camp., 175; 15 M. W., 23; 1 Smith Lead Ca., 639, 668; 25 Ency., 900; 10 So. R., 293; 101 Mo., 534; 48 S.C. 458; 61 S.C. 448; 21 S.C. 239.
Messrs. Butler Osborne, contra, cite: Findings by Circuit Court are final: 63 S.C. 45; 58 S.C. 1; 51 S.C. 560. There must be a new and independent consideration to support the new contract here set up: 35 S.C. 180; 61 S.C. 456; 1 Cyc. 319, 320.
July 23, 1907. The opinion of the Court was delivered by
On February the 14th, 1904, James Rippy, of Cleveland County, N.C., died possessed of certain real estate in Cherokee County, of this State. His will being attested by only two witnesses was not recognized as valid here, hence his heirs brought an action for partition of the said property. The appellant herein, J.A. Smith, under a fee simple deed to the premises made by James Rippy, deceased, dated August 27th, 1901, claimed a certain mineral interest in the lands described in the complaint. He was, therefore, made a party defendant. According to the original agreement appellant was to pay four hundred dollars for the property, the first hundred to be paid eighteen months after date and the balance in three yearly installments of one hundred dollars each. The deed provided that upon failure to make any payment when due the land should revert to the original owner. Appellant proved the first two payments and then sought to prove a subsequent agreement between himself and Rippy, by which Rippy agreed to accept one hundred dollars as payment in full for the remaining debt. The respondents denied such agreement and alleged by failure of payments of the last two installments appellant had forfeited his title to the land. The issues of law and fact were referred to a special referee, who after hearing the testimony overruled the contentions of the appellant. The matter came up before the Hon. Chas. G. Dantzler, on exceptions to the referee's report, at the November, 1906, term of Court for Cherokee County, who passed a decree sustaining the findings made. The defendant, J.A. Smith, now appeals to this Court.
The issue necessarily raised by the pleadings is that of title to the land in dispute. This question might properly have been submitted to a jury, but the parties chose to waive their right to such trial and submitted all questions to a referee. He made his report which on appeal was affirmed by the Circuit Court, a Court having power to review the findings of fact made by the referee. When an appellant comes to this Court, however, he should bear in mind that its power of review in law cases extends only to errors of law, that as to questions of fact it has absolutely no jurisdiction. Therefore, when a referee, or the Circuit Court, passes on questions of fact in law cases the conclusion reached is final. Lipscomb v. Littlejohn, 63 S.C. 45; 40 S.E., 1023; Ross v. Jones, 58 S.C. 1, 35 S.E., 462. An examination of the exceptions relied on by the appellant in this case will show that they raise only questions of fact. These having been passed upon by the Court below, its decision is final.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.