Civil v. Toomey , 103 S.C. 460 ( 1916 )

March 7, 1916. After reciting the foregoing statement of facts, the opinion of the Court was delivered by The defendants demanded a jury trial as to the title on the law side of the Court, but issues were ordered instead. There is no appeal from this, and it cannot be considered. There are 13 exceptions, but appellants consolidate them.

1. Exceptions 1, 2, 4, 5, 7, 8 (requests to charge No. 9 and No. 15), 10:

"These exceptions allege error on the part of the Circuit Judge in charging the jury that they could take into consideration in addition to the continuous and exclusive possession of John Keough, the ancestor, who the plaintiffs alleged in the complaint had died ``seized and possessed' of the lot in question, also the possession of his heirs, who the plaintiffs alleged had inherited title from the said John Keough, their ancestor, in order to make out title in the ancestor, John Keough, and these exceptions allege error on the part of the Circuit Judge in repeatedly refusing to charge the jury that they could not consider the possession of the heirs under these pleadings in order to make out title in the ancestor."

The case of Epperson v. Stansill, 64 S.C. 488,42 S.E. 426, says:

"But when the heir is in of his ancestor's possession, and makes no new entry, the possession of ancestor and heir may be united in making out the statutory period (citing authorities); the distinction being that, when possession is cast by operation of law from ancestor to heir in possession, there is no break in the continuity of possession, whereas in the case of disseisor and grantee there is a new entry and a break in the continuity of possession."

This was under the bar of the statute that required one holding. See, also, Kilgore v. Kirkland, 69 S.C. 85,48 S.E. 44. Possession may be taken to make up the presumption of a grant, but not to satisfy the bar of the statute. The holding of the ancestor and heir is one holding. The appellants asked his Honor to charge the jury that in the presumption of a grant the presumption is that the grant was made at "the commencement of the 20 years." If that presumption applied to Elizabeth, it applied to John. The presumption, therefore, as far as this case is concerned, is that the title of those who claimed under John, the ancestor, was in John, and not in his heirs, or, rather, was in the heirs only by inheritance from John.

2. "3. Because his Honor erred in refusing defendants' third request to charge, the third request being as follows: ``I charge you that there is no evidence in this case of title to the land in John Keough, or that he died seized and possessed of the said land' — the error consisting in the failure of his Honor to charge that there was no evidence of title in John Keough, since there was no evidence whatsoever of any title in him."

From what has been said above it is manifest that his Honor could not declare, as a matter of fact, that there was no title in John Keough. Appellants claim that the record shows that the title was not in John Keough, because his title was lost by the foreclosure proceedings and passed to William McGinnis, the purchaser at that sale. Assuming that the lot sold is the lot of which partition is sought, the presumption is that Wiliam McGinnis, after the sale, reconveyed to John Keough. The respondents are in possession, and the appellants are not, and never were, in possession (according to records). When, therefore, a person not in possession claims title against one in possession who claims title, and it appears that the title is in a third person, the claim of one not in possession fails, because a person in possession is entitled to retain his possession against all the world, except the true owner. The appellants do not claim under William McGuinnis.

3. The next question in this case is as to the title of Elizabeth Keough. The record shows, and there is no contrary showing, that Patrick Keough married Elizabeth Keough, and they lived in Charleston; that after the death of Patrick Keough and John Keough Mrs. Elizabeth Keough and her son came to live with the heirs of John Keough on this land. It is important to ascertain, if possible, the character of her entry on the land. There are four possible ways in which she may have entered:

(1) Claiming adversely to the heirs who were in possession. The record negatives this sort of entry. She did not oust them. Mrs. Elizabeth lives with them and they did not live with her.

(2) She may have entered as a boarder or guest. Of this there is no evidence. If there were evidence of either, then she could not claim title against those in possession until she had thrown off the relationship and a sufficient time had elapsed after she had thrown it off. Possession is presumed to continue as it began until there is evidence of a change. Here there is none.

(3) She may have entered as the heir at law of her husband, Patrick Keough, and tenant in common with the members of the family of John Keough. In that event the appellants must show ouster. There is no evidence of ouster.

(4) She may have entered as the widow of Patrick Keough claiming dower. The only evidence in the case that throws any light on the character of her entry supports this view when she said "she had the property in question for her lifetime, and that it was to go to Charlie Keough, her son, and to Ed Civil and John Civil."

That is a claim of dower, and not as heir at law. Whether it be as dowress or heir at law, her claim was under Patrick Keough, who was one of the heirs at law of John Keough. The title of John Keough, therefore, was just as necessary, if not more so, to the title of the appellants as it was to the title of the respondents.

This covers all the questions raised in the case, although the exceptions are not mentioned by number.

The judgment is affirmed.