Brucke v. Hubbard , 74 S.C. 144 ( 1906 )

The opinion of the Court was delivered by

Mr. Chief Justice Pope.

This action came on to be heard before his Honor, Judge Klugh, and a jury, at the March Term of the Court of Common Pleas of Oconee County. It had for its object the recovery by the plaintiffs, who were the widow and the children of William L. Brucke, deceased, of a tract of land, containing seventy-seven acres, of which the deceased was at his death seized and possessed, but which was occupied by the defendant, Milton Reese Hubbard, who refused to yield possession thereof to the plaintiffs. The complaint was as follows:

“I, That on the 21st day of May, A. D. 1877, one Zachariah Hubbard was seized in fee and possessed of the following described real estate, to wit: * * * containing seventy acres, more or less, and being the same tract of land whereon the said Zachariah Hubbard then resided.

“II. That on the said 31st day-of May, A. D. 1877,’ the said Zachariah Hubbard made, executed and delivered to William E. Brucke, his certain deed of conveyance conveying the real estate aforesaid; that said deed of conveyance was duly recorded in the office of Register of Mesne Conveyance for Oconee County, South Carolina, on the ISth day of February, 1SS0, in book ‘E,’ pages 611 and 612, and certified. A copy of said deed is hereto attached as exhibit ‘A’ and made part and parcel of this complaint.

“HI. That said grantor, Zachariah Hubbard, reserved to himself the rents, issues and profits of said real estate for and during the term of his natural life, and after his, the term of the natural life of his wife, Harriet N. Hubbard, should she survive him.

“IV. That the said Zachariah Hubbard departed this life on the-day of-, 188 — ; that his widow, the said Harriet N. Hubbard, departed this life on the 7th day of October, 1896.

“V. That the said William H. Brucke departed this life on the 6th day of October, 1891, intestate, leaving as his heirs at law the plaintiffs in the above entitled action, to wit: his widow, the plaintiff, Myra M. Brucke, and his children, Gussie D. Thompson, nee Brucke, Wilhelmina Alexander, nee Brucke, and Pelza Viola Brucke.

“VI. That the plaintiff, Pelza Viola Brucke, is an infant above the age of fourteen years; that on the 28th day of January, 1903, Claudius P. Alexander was duly appointed guardian ad litem for the said Pelza Viola Brucke by D. A. Smith, judge of probate in and for Oconee County, for the purpose of representing- and protecting the interest of the said infant plaintiff in the above entitled action.

“VII. That at the time of his death the said William L. Brucke was seized in fee of the premises described in paragraph I. of this complaint, and plaintiffs as his heirs at law ever since have been and now are the legal owners of said premises.

“VIII. That since the death of the life tenant, Harriet N. Brucke, on the 7th day of October, 1S96, the defendant has been in lawful possession of said premises and converted the rents, issues and profits to his own uses and purposes; that the defendant is wrongfully in possession of said premises and claims a right thereto; and although repeatedly requested to' surrender peaceable possession of said premises to plaintiffs, the defendant has refused and continues to refuse to give up the possession thereof, and unjustly and unlawfully withholds same from the plaintiffs.

“IX. That the defendant is indebted to plaintiffs for the rents, issues and profits of said premises since the death of the life tenant, Harriet N. Hubbard, in the sum of three hundred dollars, no' part of which has been paid; that the defendant continues unlawfully to withhold from plaintiffs the possession of said premises to their damage in the additional sum of two hundred dollars.

“Wherefore, plaintiffs demand judgment, 1st, for the possession of said premises; 2d, for three hundred dollars, the rents thereof; 3d, for two hundred dollars, plaintiffs’ damages for the withholding of the possession of said premises; 4th, for the costs.”

The defendant’s answer was a general denial of the plaintiffs’ complaint. Both sides introduced testimony.

After the charge of the Judge, which must be reported, and a verdict of the jury in favor of the plaintiffs upon which a judgment was entered, the defendant appealed to this Court upon ten grounds, which grounds must be reported. We will now proceed to consider them in their order:

1 I. It is here complained that the Circuit Judge erred in allowing Mrs. Brucke to testify as to a transaction between herself and her father, Zachariah Hubbard, in his lifetime touching the possession of the deed purporting to be his conveyance of such seventy-seven acres to the intestate, William L. Brucke. It appears from her testimony that she and her family moved from Oconee County to the Pelzer Mill, Anderson County, in the year 1882, but that before going there she left the deed and a note with her father, Zachariah Hubbard, for safe keeping. The alleged deed contained a reservation of a life estate in said seventy-seven acres of land unto the said Zachariah Hubbard and his wife, Harriet N. Hubbard. The alleged deed had already been recorded in the office of the Register of Mesne Conveyance of Oconee County. The ground of objection was that this witness could not testify as to this transaction as her father was then dead, being prohibited by section 400 of the Code of Procedure. The defendant had already testified that he did not claim the land as heir at law, devisee or assignee of the said Zachariah Hubbard. The Circuit Judge held that under these circumstances the 400 section of the Code' did not apply.

We hold that there was no error of the Circuit Judge in so' ruling. This Court has so frequently passed upon this section that it will be unnecessary to again pass upon it. The witness was only restricted in her testimony by this section 400'. Such being the case and inasmuch as she did not violate this section, her testimony was competent. This exception is overruled.

2 II. Objection is raised by this exception to the competency of the witness, Mrs. M. M. Brucke, to testify her reason for allowing the defendant to remain in possession of the land in question for several years after the death of the life tenant, Mrs. Harriet N. Hubbard. A¥e see no objection, to this testimony. It was a statement of her reason for the allowance of such possession. Mrs. Hubbard was very old and infirm. She had broken her leg and required tender nursing. This objection is overruled.

3 III. This exception relates to the alleged error of the Circuit Judge in admitting in testimony book of record “P” — containing the deed of conveyance of the seventy-seven acres of land by Zachariah Hubbard — on the ground that the record copy of the deed was not the best evidence and also because such testimony was cumulative. Such record is to a certain extent notice to all the world of such deed. It showed prima facie that the defendant had notice of its contents. Of course, it was subject to the full explanation by the defendant and his witnesses of the contents. This record showed that there had been a full compliance of the statute of this State regulating such record as early as February, 1S80. We do not think the Circuit Judge committed any error as here pointed out. This exception is overruled.

4 IV. This exception sets out an alleged error of the Circuit Judge in admitting the deed in evidence. Now it must be recalled that the Circuit Judge only admitted the alleged deed in evidence; he did not assume that it was proved; that was left to' the jury. It was in proof as circumstances for the consideration of the jury: That the clerk of Court testified that he had written the body of the deed and recorded the same in the records of the office of the Register of Mesne Conveyance of Oconee County. That one of subscribing witnesses said in his testimony that he recognized his signature as one of such witnesses, and the other witness to said deed swore that he recognized his signature to such deed as a subscribing witness. That each one of said subscribing witnesses stated that he would not have signed the deed as “signed, sealed and delivered” in his presence unless he had seen it “signed, sealed and delivered,” and knew such to be the fact; and so as to the signature to the oath for the record of said deed. The fact that it was duly recorded was sworn to by the Register of Mesne Conveyance. It must be remembered also that both the grantor and grantee of said deed were dead. Under these circumstances it was not error to admit the deed itself for the consideration of the jury. How often it is that the question of the witnesses as an absolute fact that each witness witnessed the same cannot be established.

The fact was all that was done was regularly done and that there was no evidence that any witness had any interest or was in favor of the same. This exception is overruled.

V. Was there error in the Circuit Judge in refusing to grant the motion for a nonsuit? We have examined the -testimony with care and there was testimony on the issue. This being so, the Circuit Judge would have erred if he had granted such motion. This exception is overruled.

5 VI. We do not think there was any error in the charge of the Circuit Judge: “That it was the established law where one dies in possession of land and his heirs are there with him and remain in possession of the ancestor’s possession, the law in a case like that allows the ancestors and heirs to put their possessions together to make up the ten years.” We regard the proposition as sound law. This exception is overruled.

6 VII. We do not think it was error on the part of the Circuit Judge to charge the jury: “In addition to that, when a person takes possession of land owned by a minor under the age of twenty-one years, the statute declares that the minority of the infant shall not be counted as a part of the ten years, but the ten years, to establish title by adverse possession, begins to run from the time that infant reaches the age of twenty-one years, and no one can claim title by adverse possession against the minor until that minor arrives at the age of twenty-one years.” The record of the probate court was admitted in testimony and showed that one of the parties was still a minor. This exception is overruled.

7 VIII. We do not regard this exception as well founded, for the Circuit Judge was careful to lay down the law as requiring the plaintiffs to establish their title and not rely upon the weakness of defendant. This fully appears in the charge itself. This exception is overruled.

IX. The question of fact raised by the defendant has been decided against him by the jury. ' We cannot interfere with the decision of the jury. This exception is overruled.

X. The jury by its verdict has found that the defendant has not been in adverse possession of the tract of land on the east side of the Spring Branch for seventeen years. We would not interfere with the verdict if we could. This exception is overruled.

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

Mr. Justice Woods concurs in result.