December 31, 1924. The opinion of the Court was delivered by This action was commenced on the 15th day of April, 1922. It was an action to recover a house and lot in the City of Columbia, S.C. and demanded recovery of the lot of land, together with $500.00 for the withholding thereof by the defendant.
The case was brought on for trial before Judge Shipp and a jury, at the February term, 1923, of the Court of Common Pleas for Richland County. At the conclusion of the charge of the judge, the jury rendered a verdict for the plaintiff for the possession of the land in dispute, and rendered a verdict that the defendant was not in the unlawful possession of said land, upon certain issues submitted to them by the judge upon his own motion.
The complaint alleges: (1) The seizin of the land, describing it. (2) That the defendant is in possession thereof, and withholds the same from the plaintiff to his damage $500.
The answer of the defendant was a general denial.
During the pendency of the action, the plaintiff was committed to the state hospital for the insane, and was there at *Page 334 the time of trial. His brother, J.N. Jordan, was appointed his guardian ad litem by Judge Shipp, and he represented the plaintiff.
The plaintiff offered in evidence his deed to the land, dated December 5, 1905, and offered evidence that the defendant refused to surrender possession to him. He also offered testimony tending to establish his title back to 20 years. He also offered testimony tending to show the rental value of the land to be over $500 for the time that the defendant had been in possession of it. The plaintiff's title to the land was a deed December 5, 1905, signed by J.E. Young to W.D. Jordan, in the regular form of a fee-simple conveyance, recorded December 19, 1905, in the Clerk's office for Richland County.
The defendant was then put on the stand, and admitted that she was in possession of the land, and claimed that she was the wife of W.D. Jordan, and claimed to have the right to hold possession of it, claiming that the criminal Court had ordered W.D. Jordan to furnish her a place on which to live.
After this testimony was given, the presiding judge, without any motion to that effect, told the attorneys for the defendant that he would allow them to amend their answer to the effect that she had paid a part of the consideration for the land. The plaintiff's attorney then asked the judge if he meant to withdraw the case from the jury; that the amendment had taken the plaintiff's attorneys by surprise. The judge stated that he would go ahead and determine the legal issue, and allow the defendant to amend afterwards. The case then proceeded, and the defendant admitted that plaintiff had demanded possession of the land from her, and that she had refused to give it up. She admitted that she claimed title from the same source as the plaintiff did. After the charge of the Court he submitted the following issues to the jury: *Page 335
(1) Has the plaintiff established legal title to the premises?
(2) Is the defendant in the unlawful possession of the property?
(3) Is the defendant liable for rent on the place?
The jury answered the first question: "Yes."
The second question: "No."
The third question: "No".
Subsequently during the same term of the Court, the judge signed the following order:
"Whereas, during the progress of the above case before the Court on certain issues which were submitted to a jury, the defendant was permitted to amend her answer that the land described in the complaint was purchased with the defendant's money, and that defendant is therefore entitled to the use and possession of said land: Now, therefore, on motion of D.W. Galloway and Alfred Wallace, Jr., for defendant, it is ordered that the order passed during the progress of the case be, and is hereby, confirmed and that this order stands as such amendment without the necessity of serving an amended answer upon the plaintiff, and that said cause be transferred to Calendar No. 2, and it is further ordered that the issues raised by said amendment be, and are hereby, referred to Hon. J.C. Townsend, Master for Richland County, to take the testimony and decide all issues of law and fact arising thereunder and report the same to this Court with all convenient speed.
"S.W.G. SHIPP, Presiding Judge."
The appellant by nine exceptions complains of error on the part of his Honor. The exceptions must be sustained and judgment reversed.
The title is in appellant, and he is entitled to possession even though the respondent is his wife; he has a right to put her out of his house, and her remedy is by a suit for alimony or a criminal indictment. *Page 336
It is a suit at law, and his Honor was in error in referring it to the Master. While an amendment can be allowed by the Court during the trial, yet, if it takes the other side by surprise, the case should be continued.
The order appealed from is reversed.
MESSRS. JUSTICES FRASER, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.