
    CASE No. 964.
    MOON v. JOHNSON.
    1. In an action to recover the possession of real estate, an order refusing plaintiff leave to file a supplemental complaint, setting up a title deed to the land in question, is appealable.
    2. Plaintiff can recover only upon the cause of action existing when suit was commenced; and therefore in an actipn for the recovery of reahproperty, he cannot, by supplemental complaint, set up a legal title acquired after suit brought. Bank v. Manufacturing Company, 3 Slrob. 190, recognized and followed.
    Before Thomson, J., Greenville,
    April, 1880.
    The case is sufficiently stated in the opinion.
    
      Messrs. Qarlington & Moore, for appellant.
    
      Messrs. Earle, Wells & Westmoreland, contra.
    January 10th, 1881.
   The opinion of the court was delivered by

Simpson, C. J.

This was an action by appellant to recover possession of real estate. The title deed set up by the appellant was a deed from the Probate judge in partition. After the cause was on the calendar the decision in Davenport's. Caldwell, 10 8. C. 317, was announced. The appellant then commenced proceedings in the-Court of Common Pleas to confirm the partition of the Probate Court. Under these proceedings this partition was confirmed, and by order of the court, the master executed titles to the appellant of the land in question. The respondent was not a party to the confirmation proceedings.

The appellant then made a motion to the Circuit Court for leave to file a supplemental complaint so as to set up the deed of the master.

This motion was refused by. the Circuit judge “on the ground that a cause of action, under a different deed, is set out in the alleged complaint, and the same relief sought as in the first complaint.”

The appellant appealed on the grounds:

1. Because the plaintiff was entitled to a supplemental complaint as a matter of course.

2. Because the code allows the plaintiff to file a supplemental complaint, alleging facts material to his case occurring after the former complaint, and of which he was ignorant at the time.

3. Because, under the code, the plaintiff is entitled to file a supplemental complaint to set up a judgment or decree of a court of competent jurisdiction rendered since the commencement of the action.

The leave of the court is necessary, in all cases, to file a supplemental complaint, and although this leave will be generally granted, yet it is by no mean§ a matter of course order to which a party is entitled whenever he may choose to apply for it. On the contrary, the motion must be made in due time, in good faith, and upon facts warranting the favorable action of the court, and, when thus made, it rests in the discretion of the court whether it shall be refused or granted, and even after granted it may be withdrawn when proper. Whitaker’s Pr. 213.

In this case the motion was refused. The respondent makes the point that an order granting or denying a supplemental complaint is within the discretion of the court, and therefore not appealable.

This is the first question involved, and we find it at the thresh-hold of the case. Under the code, Section 11, any intermediate judgment, order or decree, involving the merits of the action, is the subject of appeal. Does this order involve the merits of th.e action? The action is one to recover the possession of real estate. In the judgment of the appellant his recovery depends upon setting up the deed which he desires to bring before the court by means of the supplemental complaint. The order of the judge has denied him this privilege. This order, then, strikes at the very foundation of the appellant’s action, and clearly in-, volves its merits. Whitaker’s Pr., vol. II., p. 216, § 193.

Mr. Whitaker says, “An order granting or refusing leave to plead supplementarily, involves the merits and is appealable.” Harrington v. Slade, 22 Barb. 161; St. John et al. v. Croel, 10 How. Pr. 253; Brown et al. v. Irish Presbyterian Congregation, 6 Bosw. 259.

In the case of Edwards v. Edwards, ante p. 11, in this state, though the question was not directly involved, yet this court reviewed the order of the court below, allowing a supplemental complaint.

In our judgment the order in this case is appealable.

In the second and third grounds of appeal the appellant states correctly the facts and circumstances under which a party is generally entitled to a supplemental complaint; but we do not see that the Circuit judge, in refusing the appellant’s motion, has violated any legal right of the appellant as claimed in these grounds. ^Yhile in a supplemental complaint a party may allege facts material to his case, and of which he was ignorant at the commencement of his action, as stated in the second ground of appeal, and while, under certain circumstances, he may set up a judgment or decree of a competent jurisdiction, rendered since, as stated in the third ground, yet it is a well-settled rule of ¡heading that the matter of a supplemental complaint must be consistent with and in aid of the case made by the original pleadings, and that it cannot make a new and different case. Wait’s Pr. 476. Nor can a suit, orginally defective, be sustained or cured by means of a supplemental pleading. Whitaker, vol. II, p. 214; McCullough v. Colby, 4 Bosw. 603. In the case of McCullough v. Colby, the very point arose, and the court said “that facts accruing after suit brought cannot be inserted under any circumstances in the original complaint by way of amendment, nor by supplemental complaint when the original complaint failed to state a cause of action.”

“No party,” says the court, “can recover in an action which was commenced when the cause of action had not accrued.” So, too, in the case of Bank of State of South Carolina v. S. C. Manufacturing Co., 3 Strob. 190, which was an action, like this, to .try titles, the court held that in an action to try titles, as well as in all other actions, the question always is, did the plaintiff have a cause of action when the suit was commenced ? In this ease the plaintiff had purchased land at sheriff’s sale, and commenced his action before he obtained the deed of the sheriff, but he received the deed after the commencement of the action. Upon these facts being developed, he was non-suited, and the non-suit was sustained in the Appeal Court, that court deciding that whatever may have been the equity of the plaintiff, the title to the land was inchoate — it was executory — and that the legal estate could nevebpass until the deed was executed and delivered. Such a defect, it is well settled, cannot be cured by supplemental complaint. The case before the court is very similar to the one of Bank v. Manufacturing Company.

At the commencement of the action it .is admitted that the appellant had no legal title to the land. Ho claims to have obtained title since, and while his original action was still pending; and he seeks, by supplemental complaint, to set up this title in his original suit, and to recover upon that. According to the above authorities, this is a fruitless effort. Tie must stand or fall on the cause of action as it existed when he began his suit. His difficulty, therefore, is beyond the reach of a supplemental complaint.

The order of the court below is affirmed.

Mol ver and McGrow an, A. J.’s, concurred.  