Stokes v. Murray , 99 S.C. 221 ( 1914 )

October 10, 1914. The opinion of the Court was delivered by This is an action to recover real estate and has been before this Court before, but the questions involved in this appeal were not passed upon. It is reported in 95 S.C. 120,78 S.E. 741. It was tried before Judge Sease and a jury at the Spring term of the Court for Lee county, 1914. The defendant was allowed to amend his answer some months prior to the trial, so as to plead the statute of limitations under the act of 1712. Terms were, however, imposed upon the defendant in allowing this amendment to answer, and defendant appealed from so much of his Honor's order as imposed terms, and a motion was made in this Court to dismiss this appeal by the plaintiffs. When the case was tried on the merits before Judge Sease and a jury the defendants relied as a defense on the statute of limitations for ten, twenty and forty years, and sets up as a bar the act of 1712 and amendment to that act by act of 1824. The plaintiffs at the trial took the position that their ancestor, under whom they claimed and who owned the land in fee, being a married woman was not barred by the statute of limitations, set up as a defense by the defendant; that she married her husband prior to the adoption of the constitution of 1868, and she died before her husband, and she did not die until four years before the commencement of this action. The trial before Judge Sease resulted in favor of defendant, and, after entry of judgment, plaintiffs appeal, and ask reversal as to the motion to dismiss the appeal from so much of the order of Judge Sease allowing the amendment of answer but imposing terms upon the defendant, which defendant alleges was an abuse of discretion on the part of his Honor. This was clearly within the discretion of his Honor, and we see no erroneous exercise of this discretion. Chief Justice Gary, in A. Wichman and Son v. Fox, 96 S.C. 470, 81 S.E. 180, states the rule. The appeal of the defendant-appellant is dismissed.

The plaintiffs, by four exceptions, impute error on the part of his Honor, and these exceptions practically raise two questions, the remarks of his Honor before the jury on the motion to direct a verdict for the plaintiffs, wherein he used language which appellants allege was virtually prohibited by the Constitution, and a charge on the facts, and his Honor's construction of the act of 1712. We think the language used by his Honor was calculated to impress the jury as to his opinion as to what the facts of the case were, and he strongly conveyed to them that, in his opinion, the claim of plaintiffs was without merit or justice to sustain their recovery, and his language was certainly as strong as that used by the Circuit Judge, who was the writer of this opinion in Latimer v. ElectricCo., 81 S.C. 379, 62 S.E. 438, and the State v. Arnold,80 S.C. 383, 61 S.E. 891. In both cases the duty of Circuit Judge is clearly set out, and the words used by Judge Sease came clearly within the rules laid down by this Court in those cases, and this case went to the jury charged with an opinion of the trial Judge prejudicial to the rights of the plaintiffs that justice and equity ought to prevent a recovery by them.

The other exceptions raise the question: Was his Honor in error in construing the act of 1712 and amendment there by act of 1724 as a bar to the plaintiff's recovery, he having held as a question of law that the act of 1712 as amended by act of 1824 was a law of the State until it was repealed by the act of 1870; and a failure on the part of Frances L. Stokes, the plaintiffs' ancestor, to bring her action to recover the land in question at a period of ten years prior to the repeal of the act of 1712, and that if she did not prosecute her right or acquire possession within that period, then she and her heirs at law and all others claiming under her would be forever barred from recovering the same? In other words, his Honor held that the act of 1712 was in force until 1870, and that would prevent a recovery if facts warranted it. There was an abundance of evidence that Frances L. Stokes, who before her marriage was Frances L. Corbett, inherited from her father an interest in the land he owned, and the land in dispute was set off to her in a partition suit between the heirs of her father. This partition suit was ended in 1858. Frances L. Corbett married Stokes sometime in the fifties, as a son was born to them in 1859. She predeceased her husband several years. We think his Honor was in error in construing and charging the act of 1712 and amendments, as he did. There was some evidence that Frances L. Stokes and her husband were in possession of the land in dispute after 1870. The marital rights of Stokes attached to the real estate of his wife after marriage, whether she was in possession or not, and he was entitled to the usufruct rents and profits, etc., of the same during his life. Possession was not necessary as to real estate. It was different as to personal property, it had to be reduced to possession for marital rights of husband to attach. Frances L. Stokes having married prior to the adoption of the Constitution of 1868 her husband acquired a vested interest in the real estate of his wife and was entitled to the right of possession of such real estate and the rents, issues and profits therefrom during coverture. Frances L. Stokes did not have the right of possession of her real estate nor the rents and profits therefrom until the death of her husband, and she predeceased him, and the cause of action. and the right to bring suit to recover the land and for rents and profits did not accrue until the death of her husband. There could be no adverse holding against Frances L. Stokes, a married woman, married prior to the adoption of the Constitution, with her husband having a vested interest in her real estate during coverture whether she was in possession of real estate that she owned or not. Frances L. Stokes was never relieved of the disability of coverture, as she died before her husband, and at no time could she have maintained this action, but it descended to her heirs at law and they brought their action within ten years after disability of coverture was removed.

Judgment reversed and new trial granted.