I concur in the answers given by MR. JUSTICE FRASER to the second and third questions made by the appeal, but dissent from that given to the first question, because it is a departure from the practice of long standing in this State, and one which is founded upon good reason, and has received the sanction of this Court in numerous decisions. A practice so convenient and well settled ought not to be disturbed without cogent reason; and, when it is done, the bar ought to be distinctly informed that the previous decisions of the Court, approving that practice, are no longer of force.
Fraud is not a matter of exclusive equitable cognizance. Courts of law have jurisdiction to try issues of fraud, and have exercised it for a long time. Where it arises in legal actions, such as actions for the recovery of money only or specific real or personal property, and the remedy is also legal and adequate, the recovery of money or property, the jurisdiction is concurrent; and, in such cases, it has been the uniform practice in this State to submit the issue of fraud to the jury. In fact, it has been frequently held, in such cases, that the parties have the right to that mode of trial. Where conduct and motives are questioned, a jury is most apt to correctly interpret them.
In Price v. Railroad Co., 38 S.C. 199, 17 S.E. 732, defendant set up a release which plaintiff was allowed to *Page 372 attack on the ground that it was obtained from her intestate by fraud and undue influence, and the issue was tried by the jury, and that mode of trial was approved by this Court, which, in disposing of the same contention that is made in this case, said:
"There certainly are certain issues which may be tried on either side of the Court, and among them is fraud in all its forms, and, as I suppose, also, want of mental capacity, duress, undue influence, etc., to such extent as to make an instrument absolutely void. In the case from 4 Hun. (N. Y.) 50 (Dambman v. Schulting), after full consideration, it was held `that fraud invalidates all instruments, however solemn; and the effect of a release pleaded in an answer to an action prosecuted for the debt (damages) may be avoided by proof that it was fraudulently procured.' See McCord v. McCord, 3 S.C. 577, where, in a law case, a deed set up by defendant was shown to be fraudulent and void."
It has been the common practice with us, where a debtor disposes of property in fraud of his creditor, for the creditor to obtain judgment against him, and have the property so conveyed levied upon and sold under execution, as the property of the debtor. The purchaser at sheriff's sale then brings his action at law against the fraudulent grantee to recover possession of the property upon the allegation that he (the purchaser) is the owner of the legal title, making no reference in his pleading to the fraudulent deed; and, when the grantee proves his deed in defense of his title, the purchaser attacks it on the ground of fraud, and the issue is tried by the jury. Smith v. Henry, 18 S.C.L. (2 Bailey) 118; McCord v. McCord, 3 S.C. 577; Archer v. Long,32 S.C. 171, 11 S.E. 86. Numerous other cases might be cited.
In McCreery Co. v. Myers, 70 S.C. 282, 49 S.E. 848, the Court said: *Page 373
"In an action to recover land, the deed under which plaintiff claims may be assailed for fraud by way of defense before the jury. De Walt v. Kinard, 19 S.C. 292; Archer v. Long, 38 S.C. 272, 16 S.E. 998. Questions of fraud or mistake may sometimes be adjudicated in actions at law, as in these matters the jurisdiction of equity is not exclusive, but concurrent. Griffin v. Railway Co., 66 S.C. 77,44 S.E. 562."
In Griffin v. Ry., supra, the principle decided in Price v.Railroad Co. was reaffirmed. As to the pleadings, the Griffin case is on all fours with this case. Defendant set up in its answer, in bar of plaintiff's action for damages for person injury, a release that plaintiff had executed and delivered to it. Plaintiff replied, alleging that the release was obtained by fraud. Defendant demanded trial of the issue of fraud on the equity side of the Court, which was refused, and it was submitted to the jury. In response to defendant's first exception, which raised its right to the mode of trial demanded, this Court said:
"We think that the reply to that part of the answer setting up the release, admitting that it was signed, but denying any consideration therefor, and alleging that it was procured by fraud and that notice had been served by the plaintiff before suit was brought, did not warrant the Court to grant defendant's motion. The reply raised an issue, or issues, which would have been much more satisfactorily passed upon by a jury."
Mr. Justice Gary concurred in a separate opinion, giving more elaborate reasons why the ruling of the Court below should be sustained. The same principle was applied inBurnett v. Tel. Co., 71 S.C. 146, 50 S.E. 780; Mason v.Tel. Co., 71 S.C. 150, 50 S.E. 781, and Treadway v. MillsCo., 84 S.C. 41, 65 S.E. 934. *Page 374
Nor do I concur in the attempt to distinguish between fraud and partiality in arbitrators, because partiality is a fraud upon the rights of the injured party. Each party to an arbitration contracts for and is entitled to a fair and impartial decision — one that is not influenced by any improper motive or consideration. Hence, though severally mentioned as good grounds for setting aside an award, fraud and partiality differ more in degree than in nature. If partiality be corrupt, who will say that it is not fraudulent? If the arbitrator be conscious of it, and consciously allows it to sway his judgment, it is corrupt. The kind of partiality that is not corrupt fades imperceptibly into that which is. There is often no sharp line of demarcation. The distinction is in name and degree. The effect upon the rights of the party injured by it is the same.
In this connection, it may not be out of place to say that arbitrators often regard themselves as agents, representatives, or advocates of the party by whom they are selected — a notion that is radically wrong. An arbitrator who has a correct conception of the solemnity and dignity of the office and of his duties therein will exercise judicial impartiality, and will not be influenced in the slightest degree in favor of the side appointing him by reason of the fact that he was appointed by that side, or, indeed, by any other improper motive or consideration; but, realizing that, for the time being he is a judge between the parties, he will act as becomes a just and righteous judge.
Plaintiff's cause of action is one at law for the recovery of money only. By the form of her complaint, she evidently intended to follow the settled practice, ignoring the award as a nullity. When defendant set it up in bar of her action, she need not have replied to the answer, since a reply is unnecessary, except when a counterclaim is set up in the answer, or when it is required by special order of Court under the last paragraph of section *Page 375 203 of the Code of Civil Procedure. Lancaster v. Lee,71 S.C. 280, 51 S.E. 139. In the case last cited, the Court said:
"The plaintiffs, in reply to defendants' answer, did stoutly allege that the deed was never duly executed and delivered, such reply was wholly unnecessary, as the Code does not and was fraudulent, null, and void. As matter of pleading, such reply was wholly unnecessary, as the Code does not require any reply to (an) answer not setting up a counterclaim, and it is always permissible to plaintiff to show in evidence without pleading that a deed relied on by defendant is void for fraud. Amaker v. New, 33 S.C. 28,11 S.E. 386 (8 L.R.A. 687)."
For the reasons stated, I think the ruling of the Court below should be affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and GAGE, concur in the opinion announced by Mr. JUSTICE HYDRICK.