Georgia-Carolina Gravel Co. v. Blassingame , 129 S.C. 18 ( 1924 )

June 9, 1924. The opinion of the Court was delivered by The plaintiff brought action in Beaufort County against the defendant Blassingame and certain other defendants, described as the "Directors of Beaufort County" and the members of the "Highway Commission of Beaufort County." From an order of Hon. J. Henry Johnson, (1) sustaining a demurrer to the complaint interposed by the directors of Beaufort County and the members of the Highway Commission, (2) refusing to strike out answer of the defendant Blassingame, and (3) allowing Blassingame to answer over, the plaintiff appeals.

The appeal questions the correctness of the Circuit Judge's conclusions upon each of the three foregoing points. The case made and the contentions of the parties are sufficiently set forth in the order of the Circuit Court. Let the order, together with Section 11 of the complaint, be set out in the report of the case.

If the demurrer was properly sustained, it is apparent that no sound basis exists for impeaching the action of the Circuit Judge which was clearly within the bounds of the Court's discretionary power, in refusing to strike out the answer of the defendant Blassingame, and in allowing said defendant to answer over. See Sections 401, 404, 406 and 437 of Code Civ. Proc., 1922. Appellant concedes that unless it appears upon the face of the complaint that the plaintiff has "the right in equity to enforce its claim against the funds which are in the hands of the Highway Commission, as alleged," then the demurrer was properly sustained. For the reason that the facts alleged were insufficient to warrant the Court in holding and declaring that the plaintiff had an equitable lien upon the funds in the hands of the Beaufort County officials, joined as parties defendant, the Circuit Judge sustained the demurrer. After careful consideration, we are not satisfied that the conclusion of the Circuit Court was erroneous.

Appellant suggests that the conclusion of the Circuit Judge was erroneous, in that it was predicated on "the doctrine of equitable assignments — where the rights of innocent third parties were involved," etc. Appellant has argued with great force that all the facts necessary to establish an equitable assignment are not essential to the creation of an equitable lien. Even if the validity of that contention be conceded, it is to be borne in mind that the jurisdiction of a Court of equity to declare, establish, and enforce an equitable lien is referable to general considerations of right and justice, based upon those maxims which lie at the foundations of equitable jurisprudence. See 25 Cyc., 665, 667. If there was not an express contract on the part of Blassingame, clearly indicating an intention to make or appropriate as security for his obligation to the plaintiff the particular fund due or to become due him by the County of Beaufort, or whereby he promised to assign or transfer that fund as security, then in order that such lien may be claimed it should appear that the aid of the Court of equity is requisite to compel the owner of the fund to do equity, or there must be some element of fraud in the matter as a ground of equitable relief. 25 Cyc., 667. We think the Circuit Judge correctly held that the facts alleged did not establish such an express agreement as evinced a clear intention to set apart or appropriate the Beaufort County fund as security to the payment of plaintiff's claim, or to assign or transfer any part of that fund. In that situation, the additional facts appearing should be of such nature as to warrant the Court in declaring and enforcing an equitable lien.

We do not think the complaint sufficiently alleges such facts. The cause of action stated against the defendant Blassingame, on a disputed money demand, triable by jury on the law side of the Court. Section 533, Code Civ. Proc., 1922. If Blassingame was not a resident of Beaufort County, as alleged in his special answer, and if the Beaufort County officials were not necessary or proper parties defendant to the action, it is clear that the real question at issue was the venue of the action, involving the substantial right of Blassingame to have the case tried in the county of his residence. Section 378, Code Civ. Proc., 1922. It is not alleged that Blassingame is insolvent, or that other facts exist which would render the plaintiff's remedy at law inadequate. In the state of facts disclosed by the complaint, we perceive no sufficient ground for the Court of equity assuming jurisdiction in Beaufort County upon the theory that an equitable lien, enforceable in a county other than that in which the legal rights of the parties would be adjudicated if the alleged equitable remedy were not invoked, should be held to exist. See 21 C.J., 40, § 14; Goldschmidt Thermit Co. v. Primos Chemical Co. (D. C.), 216 Fed., 382. Marthinson v. King, 150 Fed., 48; 82 C.C.A., 360. Dennin v. Woodbury, 96 Misc. Rep., 247;160 N.Y. Supp., 647.

The order of the Circuit Court is affirmed.

MESSRS. JUSTICES WATTS and COTHRAN concur.

MR. JUSTICE FRASER: I dissent. I think the complaint states a cause of action, and that Creech v. Long, 72 S.C. 25;51 S.E., 614, is full authority for it.

MR. CHIEF JUSTICE GARY did not participate.