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December 17, 1957


Per curiam.

   The opinion of Judge Baker follows:
The background and origin of the present issues are to be found in the appellate decision of the parent case, Dunham v. Davis, 229 S.C. 29, 91 S.E.2d 716, 720. The decision was adverse to defendant's claim of title and the case remanded "for trial of the issues under the pleadings relating to the note and mortgage hereinbefore mentioned, including the accounting involved, as directed in the order of the circuit court." That which is directed by the Circuit Court order is the foreclosure of defendant's mortgage and the credit "for all improvements that he made on the place and any increased value resulting from his enlarging and improving the cultivatable lands."

Several references were held followed by the filing of the report of the Judge of Probate, acting as Master or Referee, on December 20, 1956. Judge McIntyre, from the testimony and exhibits, calculated the mortgage debt, added the taxes and insurance as paid by defendant, and credited the plaintiffs on the debt the amount due by defendant for rent, old lumber, timber and trees cut and sold. The debt, represented by the note and mortgage, was computed including deduction for credits to December 31, 1956, and there is due and owing thereon $1,501.14, with 10 per cent added as attorney's fees, giving a total of $1,651.52. There is no exception to the result of the foreclosure. The master further recommended the payment to defendant of $8,021.25 for improvements, and payment to defendant in the amount of $10,000.00 "found to be sufficient to do equity between the parties."

The exceptions challenge the various items, and the amounts allowed for each item, in the compilation of the total of the improvements or betterments, and further attack the sum of $10,000.00 recommended upon the basis of equitable adjustment.

The improvements, for which defendant seeks compensation, consists of building a packhouse and shed, tearing down and moving an old house, clearing up approximately 60 acres of land for cultivation, a soil building program, and preparing the land for cultivation in January, 1954. The Master concluded that the defendant expended the following sums for improvements for which he should be reimbursed: $1,271.17 for the packhouse and shed, built in 1951; $234.00, tearing down and moving an old house; $5,476.35, clearing approximately 60 acres of land, 1951, 1952, 1953; $904.83, soil building program in 1952; $134.90, preparation of land for farming, January, 1954. These items total $8,021.25.

It will be observed the Master has accepted the defendant's cost of the improvements as the measure of the increase in value. There is no direct evidence to sustain this method other than the actual cost to the defendant, but it is implicit in the Master's conclusions that the increase in value is at least $8,021.25. The actual cost is taken to be the measure of the enhancement in value.

Plaintiff's first exception is confined solely to what it would cost to built the packhouse and shed. They contend the cost could not have exceeded $500.00, whereas the Master recommended recovery of $1,271.17. The packhouse was built and shed added thereafter. The defendant produced his records to substantiate the cost of the building. Against this positive evidence the plaintiffs offered the testimony of a contractor who stated the building could have been erected in 1951 for $500.00. There is substantial difference in the two amounts. The Master had to accept one of two definite figures since there is no area of reconciliation. While the defendant's cost may appear to be high, it may also be equally apparent that plaintiffs' cost is low. In this situation, the preponderance of the evidence favors the defendant, and the exception will have to be dismissed.

The second exception is also without merit. The cost of removal is not questioned, but it is contended the value of the tract of land was not enhanced thereby.

The transcript of record from the original trial was made a part of the evidence herein. From this transcript and the opinion of the Supreme Court it will be noted that one of the plaintiffs, in 1947, requested permission to tear the house down. The defendant removed it in 1948. The house, in its condition, was of no value to the farm but the area upon which it stood could be used for farming.

Exceptions three, four and five question the expenditure of $5,476.35 for clearing of land, and if spent for this purpose there has not been a corresponding increase in value. The defendant testified, upon cross examination, that in 1954 the cleared land was worth "$100.00 to $125.00 per acre since I have improved it." If you take the cost basis of clearing the land, as accepted by the Master, there is an average of $90.00 per acre for 60 acres. In addition thereto the defendant also claims improvements to the cleared land in the amount of $234.00 for moving the house, and $904.83 for a soil building program. The total expenditure for clearing the land, removal of the house and soil building program is $6,615.18, which according to Master's Report represents the increased value. This gives an average increase in value from 1948 through 1954 of $112.25 per acre which figure, however, does not include the rise in costs of farm lands from 1948 through 1954.

The plaintiffs' evidence is the acreage could have been cleared for approximately $1,200.00 and this would represent the added value, also upon a cost basis.

An interesting annotation is contained in 24 A.L.R.2d at pages 37-49 on the question of accepting the cost of improvements rather than the enhanced value. Without comment upon the various cases cited and quoted in the annotation it appears from the evidence in this case, on this point, that rule formulated by our statutes should be followed to reach a just result, that being enhancement in value.

Exceptions nine and ten are dismissed. Plaintiffs have not been prejudiced by any defect in service of the notice and the copies of the instruments are acceptable in lieu of the originals.

The error alleged in exceptions six and seven relate to defendant's soil building program, the cost of which is allowed by the Master. The defendant expanded $904.83 on 35 to 40 acres to improve the fertility of the soil. For this purpose he used velvet beans, crotelaria, lespedeza, and fertilizer. Soil building is recognized as an improvement. In 42 C.J.S., Improvements, ยง 1, page 423, it is stated: "While fertilization of the land for the purpose of raising crops in the ordinary course of tillage is not a betterment or improvement, it may be otherwise as to high ...

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