Coward v. Boyd, 60 S.E. 311 (S.C. 1908). · Go Syfert
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Coward v. Boyd, 60 S.E. 311 (S.C. 1908). Cases Citing This Book View Copy Cite
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Coward
v.
Boyd.
Supreme Court of South Carolina.
Feb 19, 1908.
60 S.E. 311
Mr. J.B. Salley , for appellants, cites: Allegation that contract of reservation was oral not having been stricken out, evidence in support of it should have been admitted: Sec. 181 of Code; Pom. on Rem., Sec. 552; 60 S.C. 209 , 390 ; 61 S.C. 336 ; 72 S.C. 372 ; 63 S.C. 570 . Evidence to show parol reservation was to support an independent contract and not to vary the deed: 61 S.C. 168 ; 40 S.C. 145 ; 20 S.C. 578 ; 41 S.C. 163 ; 61 S.C. 168 ; 65 S.C. 139 ; 72 S.C. 37 . Statute of Frauds should not be used to defeat an equity: 48 S.C. 91 ; 29 Ency., 845; 63 S.C. 558 ; 57 S.C. 559 ; 77 S.C. 259 . Growing timber is realty: 12 Rich., 176, 316; 11 Rich., 623; 77 S.C. 259 . Under the circumstances here this timber should be regarded as personalty: 28 Ency., 541; 29 Ency., 894. Messrs. G.L. Toole and H.T. Rice , contra, cite: Parol evidence as to reservation of timber was objectionable as varying the deed: 69 S.C. 93 ; 27 S.C. 380 ; Starkie on Evidence, 648; 56 S.C. 558 .
Gary.

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts of this case are fully stated in the decree of his Honor, the Circuit Judge.

There are practically but two questions presented by the exceptions:

1 First. Was there error in the ruling, that it was necessary to plead the Statute of Frauds in order to object to testimony offered to- sustain the allegations set out in the complaint? The case, of Suber v. Richards, 61 S. C., 393, 39 S. E., 540, cited by the Circuit Judge, sustains his ruling.

[*139] 2' Second. Was there error in ruling that parol testimony was inadmissible to prove that the timber was reserved ? The ruling of the Circuit Judge is sustained by the case of Lumber Co. v. Evans, 69 S. C., 93, 48 S. E., 108.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.