The opinion of the court was delivered by: T.B. Greneker, Acting Associate Justice.
There is one appeal on behalf of Lila Watson Little, defendant below, who is designated in the transcript as appellant-respondent, as well as an appeal by certain of the parties who were plaintiffs below and designated in the transcript as respondents-appellants. With a view to clarity, the appellant Lila Watson Little is hereinafter referred to as the defendant, and the other appellants are referred to as plaintiffs.
All questions as to title have heretofore been determined by a decision of this Court in the case of Watson v. Little, 224 S.C. 359, 79 S.E.2d 384; and reference to that decision will be of great assistance for a clear understanding of the questions for determination in the present case.
Following that decision, all the equitable issues were referred to the Master for Chesterfield County to take the testimony and report his conclusions. He filed his report, and exceptions thereto were taken by certain of the plaintiffs and by the defendant. Judge Lewis on January 27, 1955, affirmed the report and recommendations of the Master except as to any error in the calculation of the account therein and ordered the account brought up to date. The defendant moved for a modification of this Order of January 27, 1955, and the same was modified by Judge Lewis in his Order dated March 19, 1955. The cause was returned to the Master, who filed his second report on June 21, 1955, and exceptions were taken by the defendant. On August 12, 1955, Judge Lewis sustained the exceptions of the defendant which challenged the failure of the Master to allow the offset to defendant with respect to the mortgage indebtedness as reduced by the rents and profits received by the defendant. The actual amount of the offset was calculated and fixed by the Order of Judge Lewis dated September 24, 1955.
In due time defendant gave notice of appeal from the Order of Judge Lewis of January 27, 1955. This constitutes the first appeal and two questions are presented:
Was the evidence admissible that formed the basis for the holding that the defendant is entitled to only the sum of $1,525.23 as credit for repairs and improvements to the property involved?
Does not the preponderance of the competent evidence establish that the credit allowed defendant for the repairs and improvements is grossly inadequate and does not the preponderance of the evidence establish the value of the said repairs to have been at least in the sum of $7,350.50?
On September 27, 1955, certain of the plaintiffs served notice of intention to appeal from the Orders of Judge Lewis dated January 27, 1955, March 19, 1955, August 12, 1955 and September 24, 1955. This constitutes the second appeal and three questions are presented:
Do the Orders of Judge Lewis dated March 19, 1955 and August 12, 1955 constitute the law of the case?
Was the defendant, Lila W. Little, entitled to interest on the debt claimed against the heirs at law of T.B. Watson commencing in 1923, while the plaintiffs, who are the heirs at law of T.B. Watson, are not allowed interest on rents and profits with which the defendant was charged on the warehouse property commencing in the year 1938?
Are the attorneys for the plaintiff entitled to an attorney's fee out of the common fund?
In defendant's printed brief it was contended that the question raised by Ground One of plaintiff's appeal came too late. However, in oral argument this position was abandoned, and all grounds of both appeals have been considered.
The defendant went into possession of the premises, paid past due taxes and began improvements to the buildings with the view of renting same. The value of these improvements is now the issue made by defendant's appeal.
However, it now has been determined that the plaintiffs in this action own three-fifths of the fee and the defendant owns only two-fifths thereof. Upon the testimony offered on the accounting between the parties, the Master found that the defendant should be required to account to the plaintiffs for three-fifths of the sum of $10,248.92, which amount represented the net rents and profits held by the defendant after making deductions for repairs and improvements. Exceptions were filed by the defendant charging error in the findings of the Master with respect to the foregoing amount, but the report was affirmed by the trial judge. The appeal on behalf of the defendant charges error in the amount of the credit that has been allowed to the defendant for the repairs and improvements, she contending that the amount allowed should have been calculated on the basis of the estimate of her witness, J.F. McBride, who testified that the work done on the buildings was worth $7,350.50. The plaintiffs contended that the value of the improvements and repairs on the buildings was not more than $1,525.23.
The amount found by the Master was concurred in by the trial judge, and it is well established that in an equity case findings of fact by a Master and concurred in by a circuit judge will not be disturbed by the Supreme Court unless it appears that such findings are without evidentiary support or are against the clear preponderance of the evidence. Peoples National Bank of Greenville v. Manos Brothers, 226 S.C. 257, 84 S.E.2d 857, 45 A.L.R.2d 1070, and Archambault v. Sprouse, 218 S.C. 500, 63 S.E.2d 459, Newton v. Batson, 223 S.C. 545, 77 S.E.2d 212 and Dean v. Dean, S.C. 93 S.E.2d 206.
In arriving at the amount to be accounted for by the defendant, there was admitted in evidence a ledger sheet from the business records of Little Brothers. Little Brothers was a partnership composed of J.W. Little and George Little, who were brothers and sons of the defendant Lila W. Little. It appears that they for many years conducted their business on a part of the property involved in this action and rented by them from their mother. During their occupancy, they collected the rents from the tenants of the other parts of the property; they made many repairs on the property for their mother; they charged their own rent collected by them against the repairs which they made. The defendant also, during this time, seems to have traded with her sons and, among other things sold them timber. Little Brothers finally became involved in litigation between themselves, and it appears that in some way Lila W. Little, though not a party to the litigation between the Little Brothers, had in her possession $18,793.39 admittedly belonging to Little Brothers. At some point during the litigation, upon motion before Judge Lewis, this money, with the exception of $1,939.88 was ordered to be deposited by Lila W. Little to the credit of Little Brothers.
In Paragraph 15 of the complaint, in the case of J.W. Little v. George T. Little, it was alleged that "Little Brothers are indebted unto the said Mrs. L.W. Little in the amount of $1,939.88, as disclosed in the annexed statement marked Exhibit A and the said Mrs. L.W. Little is entitled to and should be permitted to withhold said amount of $1,939.88 from the funds so held by her and in settlement of such indebtedness to her." All of these records were in the possession of the court when Judge Lewis passed his Order of March 25, 1950, directing that Mrs. Little turn over to Little Brothers this sum of money less $1,939.88 representing "an uncontested claim of Mrs. Little." And Judge Lewis' Order was made pursuant to Paragraph 15 of the complaint, above set out, in the Little Brothers litigation. Mrs. Little accepted the money pursuant to this order. She now contends that she has never had an accounting with Little Brothers ...