January 3, 1927. The opinion of the Court was delivered by An action for the cancellation of a deed executed by one L.L. Hendrix in favor of the defendants, and for judgment *Page 180 against the defendants in the sum of $500 for rents and profits, and for the sum of $1,000 for trespass. The decree of Judge Johnson, which will be reported, states fully the facts, history and nature of the controversy.
When the case was called for trial counsel for the plaintiffs moved for an order of reference, on the grounds that the case was one of purely equitable cognizance, in that it was alleged that the deed in question was a fraudulent one and had been procured by the defendants through fraud, deceit, and undue influence, the grantor, Hendrix, being mentally incapacitated at the time. The Court overruled the motion, giving the following reasons:
"It appears that the case was originally docketed on calendar 2 of this Court in September, 1923, and that it remained on such calendar until the fall, 1924, term of Court, when it was ordered transferred to calendar 1 by his honor, H.F. Rice, presiding Judge.
"It does not appear that any formal order to transfer the case to calendar 1 was ever signed by Judge Rice, but the minute entry upon calendar 2 directing the clerk to transfer it to calendar 1 is the handwriting of Judge Rice.
"It appears further from the complaint that several or at least two causes of action are united therein, though not separately stated, and the prayer for relief set out: (1) Plaintiffs pray that they may be adjudged the owners of the lands and premises described in the complaint and entitled to the immediate possession of the same; (2) that the alleged and purported deed named therein be ordered delivered up and canceled of record and destroyed; (3) that these plaintiffs have judgment against the defendants for the full and just sum of $500, rents and profits for said land, and further for the sum of $1,000 for the illegal holding and trespassing on said lands.
"In the answer the defense pleads: (1) A general denial; and (2) title in themselves, the second defense being in the following language: `For a further defense and further *Page 181 answering said complaint these defendants say that they are the owners in fee simple of the premises described in said complaint and are in the lawful and rightful possession thereof.'
"It will be observed that the answer of the defendants admits none of the allegations of the complaint, and the defense of title does not admit or show that the defendants are claiming the title under the deed alleged in the complaint to have been made to them by Mr. L.L. Hendrix, for the alleged fraud in the procurement of which the plaintiffs ask that the same be set aside. In other words so far as the Court is able to determine from the pleadings, the defense in the second defense may be relying upon paramount title, and not merely or in any event upon the deed mentioned and referred to in the complaint.
"It seems to the Court that the complaint contains both legal and equitable causes of action, and that the answer sets up purely legal defenses, namely, a general denial and paramount title. The Court is aware of the fact that in the case of Du Bose v. Kell, reported in 76 S.C. 313;56 S.E., 968, which was an action to cancel a deed and the action of the Circuit Judge in requiring that the equitable issues of fraud be first disposed of was sustained by the Supreme Court, but the decision in that case seems to rest upon the principle that a decision upon the equitable questions of fraud would have determined the real issues in the case, and by its language the Court intimates, if it does not actually decide, that if the defense in that case had been paramount title it would have been proper to dispose of the legal issues first.
"In the Kell Case while the defense pleaded title in themselves, such title was based upon and founded upon the very instrument which the plaintiff sought to have canceled for fraud, and this Court in the instant case, would, if the plea of title set up by the defense in their second defense was by the pleadings shown to have been based or founded *Page 182 upon the deed mentioned in the complaint, order the equitable issues of fraud first to be disposed of.
"The Court is of the opinion, however, that under the state of pleadings, the defense would be entitled to show, if they can, paramount title in themselves, which if done, would dispose of the equitable issues of fraud in the procurement of the particular deed mentioned in the complaint."
The appellants by their first exception impute error to the trial Judge in refusing to refer the case, and in holding that there were legal issues to be submitted to a jury, contending that the case involved only equitable issues and that "the case was so jumbled and mixed in the trial that the rights of the appellants were jeopardized and prejudiced thereby."
As stated by the trial Judge, the answer of the defendants did not admit any of the allegations of the complaint, nor did it allege that the defendants were claiming title under the deed which the plaintiffs were seeking to set aside; and as it appeared that the defense set up was that of paramount title, it was proper that such issue of title should be first submitted to the jury in order that this issue might be settled, for if settled in favor of the defendants, the trial of equitable issues would become unnecessary. We see no error on the part of the Circuit Judge in impaneling a jury for the purpose of first trying any legal issue raised by the pleadings.
In Windham v. Howell, 78 S.C. 187; 59 S.E., 852, the Court said:
"When defendant's answer raises an issue of paramount title to land, such as would, if established, defeat plaintiff's action, it is the duty of the Court to submit to a jury the issue of title as raised by the pleadings. McGee v.Hall, 23 S.C. 392. Sale v. Meggett, 25 S.C. 72. Reamsv. Spann, 28 S.C. 533; 6 S.E., 325. Carrigan v. Evans, 31 S.C. 265;9 S.E., 852. Capell v. Moses, 36 S.C. 561; *Page 183 15 S.E., 711. Bank v. Peterkin, 52 S.C. 236;29 S.E., 546; 68 Am. St. Rep., 900. Tyler v. Williams, 53 S.C. 375;31 S.E., 298. Barnes v. Rodgers, 54 S.C. 123;31 S.E., 885."
In Land Co. v. Myers, 70 S.C. 282; 49 S.E., 848, we find (quoting syllabus): "Whether legal or equitable issues shall be first tried is in the discretion of the trial Judge." See, also, Bratton v. Power Company,80 S.C. 260; 60 S.E., 673. Du Bose v. Kell, 76 S.C. 313;56 S.E., 968. Alston v. Limehouse, 61 S.C. 1;39 S.E., 192. Knox v. Campbell, 52 S.C. 461; 30 S.E., 485.Greenville v. Ormand, 44 S.C. 119; 21 S.E., 642.
And even though, as it turned out from the testimony, there was no legal issue to be passed upon by the jury, we cannot see in what way the appellants' right were prejudiced or jeopardized by the procedure followed. This exception is overruled.
When all the testimony was in, the trial Judge reached the conclusion that the testimony made no legal issues for the jury but that the matter was one entirely in equity and for determination by the Court itself. However, upon his own motion and for the aid and enlightment of the Court, he framed issues and submitted them to the jury. By their second exception the appellants complain of error on the part of the trial Judge in so doing, contending that they "were entitled to have the equitable issues in this case tried unmixed with legal issues."
The procedure followed by the trial Judge in impaneling a jury to try what then appeared to be a legal issue, reserving the equitable issues for trial by the Court, was in accordance with the contention of the appellants to have the equitable issues tried unmixed with legal issues. That the Court had the authority, without the consent of the parties and on his own motion, to frame issues is a well-established principle of law. Mitchell v. Hamilton, *Page 184 98 S.C. 289; 82 S.E., 425. Brownlee v. Martin, 21 S.C. 392.Flinn Hart v. Brown, 6 S.C. 209.
And further, it does not appear that the appellants should be heard to complain as the case was finally disposed of as one of purely equitable cognizance, as was contended for by them in the first instance. There was no error on the part of the circuit judge.
Appellants contend by their third and twenty-seventh exceptions that when the jury failed to agree the Trial Judge erred in not ordering a mistrial or deferring the case to some future term of the Court, and that when issues in such a case are once submitted to the jury, the weight of a jury's verdict should be had before a decision is reached by the Court itself. We do not agree with this contention. In the first place, the Court need not have submitted issues to the jury, and neither party could demand the submission of issues as a matter of right. In the second place, the Court was not bound to accept the verdict of the jury in making up his decision as to the judgment to be rendered in the case. Newbold v. McCrory, 103 S.C. 299;87 S.E., 542, 1103. The verdict of the jury in such a case, as we have stated, is only for the aid and enlightenment of the Court. For the Court to accept the verdict of the jury and to base judgment upon that solely and alone, would even be reversible error. "The judgment in such a case must be the result of the conclusions of the Judge, both on the law and the facts." Gadsden v. Whaley, 9 S.C. 147;Sloan v. Westfield, 11 S.C. 445.
It was in the discretion of the Court, when the jury failed to reach a verdict, to decide the case himself upon the testimony heard, without the aid of the jury or to defer the case to some future term of the Court.
There is an additional reason why appellants should not now be heard to complain. When the jury failed to agree upon a verdict, the Trial Judge asked the counsel for both parties what would be proper for the Court to do under the circumstances. In reply thereto, *Page 185 counsel for the appellants stated that in his opinion it was a matter for the Court's discretion, and that the Court might defer the case to some other term, or dispose of it as he saw fit. These exceptions are overruled.
By numerous exceptions the appellants, in varying form, impute error to the Trial Court in finding and holding that the execution of the deed in question by the grantor was a voluntary act, that the deed was a valid one, and that at the time of its execution the grantor was not so infirm or mentally incapacitated as to render him unable to understand the subject and contents of the deed, its nature and the consequences, and the subject of his bounty, in failing to hold and find that the grantor, at that time, was so mentally incapacitated as to render him easily deceived and defrauded, and in not holding that the said deed was procured by the fraudulent acts of the defendants, and that in obtaining same the defendants practiced fraud, deceit, and undue influence, and exercised false pretenses of affection and love and pretended kindness.
The decree of the Trial Judge shows that he gave careful consideration to the testimony taken in the case. The witnesses were all before him and he saw and heard them and was able thereby to draw a just and correct conclusion from the testimony adduced. We have carefully examined the voluminous record and have made a study of the testimony, and are led to conclude that the Circuit Judge was correct in his findings. If reversal is to be had on findings of fact in a case of this kind, the appellants must show upon appeal that the findings of the Court below are against the preponderance of the evidence. Taylorv. Jackson, 92 S.C. 113; 75 S.E., 275; They have failed to show this. All exceptions raising these questions are overruled.
By their twenty-third exception the appellants complain that the Circuit Judge, in his charge to the jury, erred in his definition of fraud. This exception cannot be sustained for two reasons: First, as no verdict was *Page 186 rendered by the jury on the issues submitted by the Court, the charge complained of, if erroneous, was harmless; and, second, the definition substantially included the law applicable to the evidentiary facts of this case.
Exception 25 imputes error to the Trial Judge in allowing Shull, a witness for the defendants, to give his opinion of the mental condition of the grantor, Hendrix, when he visited him on the first Sunday in June, 1922. It appears further from the testimony that the witness, in company with his pastor, visited the grantor at the time named, which was two days after the deed was executed, had a talk with him, and had opportunity to observe his actions and general condition, both physical and mental. The witness stated these facts in his testimony, and the Court then allowed him to say what he thought of the condition of the grantor at that time, and he stated that the grantor talked intelligently and seemed to be perfectly conscious of what was going on. We do not think the admission of this testimony was error. 22 C.J., 599; Jones on Evidence (2d Ed.), 456. Further, even if its admission was error, it was harmless, as, under all the other testimony adduced on this point, the Trial Judge could have reached no other conclusion than he did reach as to the grantor's mental condition. See Lowe v. Ottaray Mills, 93 S.C. 420;77 S.E., 135.
The appellants indicate in the record that their exceptions are 28 in number, but exception 18 is not incorporated therein. Exceptions not herein specifically considered by the Court were not argued by counsel for the appellants, and are to be considered as abandoned. However, an examination of these exceptions discloses that they are without merit.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICE WATTS, COTHRAN, and BLEASE and MR. ACTING ASSOCIATE JUSTICE RAMAGE, concur. *Page 187