Mole v. Folk , 45 S.C. 265 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Pope,

This action was commenced on the 12th day of September, 1893. Its.purpose was to secure a partition between the plaintiff and defendants of a tract of land, situate in Barnwell County, in this State, so that the plaintiff might have allotted to him one-fifth part of said land, conceding that the other four-fifths thereof belonged to the defendant, Susan P. Folk. The defendants denied that the plaintiff'was entitled to any share in said lands; on the contrary, they asserted that Susan P. Folk held the same in fee simple.

Judge Izlar heard the case on an agreed statement of facts, about as follows: The lands in controversy were owned in fee simple by Hannah R. Varn, who by her last will and testament devised the same to her son, John A. Varn, for life, and at his death to such child or children as the said John A. Varn might leave at his death. But in default of any such child or children living at the death of the said John A. Varn, then to Mary Ann Breland, who should have the same for life, and at her death, in simple to her children living at her death. John A. Varn sold and conveyed by deed the said lands to one James Wiggins. Thereafter, to wit: in August, 1870, the said James Wiggins conveyed the lands to one Hansford Rizer for full value, in fee simple, with full warranty, deed duly probated, wife’s dower renounced, and all duly recorded in the office of the register of mesne conveyance foir Barnwell County; and the said Hansford Rizer at once occupied and possessed said lands. Hansford Rizer died intestate on 10th April, 1893, -when his daughter, Susan P. Folk, by partition duly made, was allotted said lands as heir at law of said Hansford Rizer. Mrs. Folk has held said lands continuously until now. John A. Varn died in 1869, leaving no child or children; Mary Ann Breland died during the year 1877, leaving five children then living, of whom the plaintiff is one.

Upon the pleadings and this agreed statement of facts, Judge Izlar, a jury trial having been waived, decided' and adjudged that Susan P. Folk “does not hold the said lands as tenant in common with the plaintiff, but as owner under an independent title,” and he, therefore, dismissed plaintiff’s complaint. From this judgment the plaintiff now appeals. 1. Because it was error to hold that the defendant held the lands in question by an “independent title,” as the agreed statement of facts showed a tenancy in common from the year 1877, and the question was as to the effect of the statute of limitations upon the right and title of the plaintiff. 2. Because it was error to hold that the defendant, who is a tenant in common with the plaintiff, could hold adversely to her, and thus acquire a title to her interest in said premises. 3. Because there was no proof of ouster for the defendant by the plaintiff, neither could there be a presumption of ouster, as twenty years had not expired since the death of the life tenant, Mary Ann Breland, which occurred during the year A. D. 1877, at which time the plaintiff’s right of action accrued. 4. Because the judgment is entirely contrary to the facts and the law.

1 . So far as the fourth ground of appeal is concerned, it is too general to require any notice. It is overruled.

2 The first three grounds of appeal may be considered together. It is always well to remember, when we come to consider the effect of the statute of limitations upon title to lánds, .that there is a recognized difference in these cases when urged.by.the plaintiff as. a sword by which his title will be won, and when urged as a shield behind which a defendant whose title is assailed screens himself. The plaintiff seeks to obtain possession of land in the possession of another; the defendant seeks to hold that of which he has been in uninterrupted possession for ten years. If a defendant’s paper title was complete, he would not need any statute of limitations; if a plaintiff’s paper title was not complete, he could not hope to take possession of the lands of another. In the case at bar, it will be seen that the plaintiff, appellant, seeks to convert the possession of the land by the defendant, respondent, as a tenant in common with herself. On the contra^, the defendant, respondent, says: My ancestor and myself have held this land adversely to the world for sixteen years before suit brought, as I have held myself for more than ten years adversely to the world. I do not admit now, nor have I ever admitted, that I hold this land as a child, or the successor of a child, of Mary Ann Breland; I use my deed' — -that is, the deed of my ancestor, Hansford Rizer — to show the extent of my possession and its character, namely, that I hold it in fee simple with ample warranties. Appellant admits that if the possession of said lands by the respondents was an ouster of plaintiff, that the statute would apply, but she relies upon the recent case of Storm v. Pitts, 38 S. C., 393, to uphold her position that the defendant’s possession of that land was in subordination to her right as a tenant in common therein. It needs no extended remark on our part to show that when a life estate precedes the falling in of a contingent remainder, that no act of such life tenant can divest the estate of the contingent remaindermen. The latter are not obliged to act until the life estate determines. Mosley v. Hawkinson, 22 S. C., 323. But the life estate determines at that moment there is an owner to land who had the right to sue touching the same. Granted, that if one of a set of contingent remaindermen is in possession of said land, such possession of one is the posséssion of all. However, if there should be an ouster by that one in possession, who should hold the land ten years after such ouster, the statute is a bar. All that Storm v. Fitts, supra, decided was that in that case the possession was by one of the tenants in common, with no ouster of the other tenant in possession. The case at bar is widely different from Storm v. Fitts, for here Hansford Rizer entered into possession long before the death of Mary Ann Breland, which occurred in April, 1877, and the holding of Hansford Rizer was devolved upon the defendant, respondent, as his heir at law. Such being the case, the citation of the authority of the appellant fails.

3 The case at bar was heard by the Circuit Judge by consent, without the aid of a jury. His judgment must be treated as the verdict of a jury, which presupposes the finding of every fact necessary to give it effect. Hence, when the Circuit Judge found that the title in defendant, respondent, was independent of that of plaintiff, appellant, it necessarily negatived the existence of any facts in plaintiff, appellant’s, favor. This being so, in our consideration of this appeal we are obliged to confine ourselves to error of law in the judgment appealed from.

We fail to find any such errors of law; therefore, it is the judgment of this Court, that the judgment of the Circuit Court be affirmed. 1