Love v. Turner , 78 S.C. 513 ( 1907 )

November 28, 1907. The opinion of the Court was delivered by This is an action to recover possession of a tract of land containing 100 acres, and has heretofore been before this Court on appeal. 71 S.C. 322,51 S.E., 101.

After the former trial the plaintiff amended his complaint by alleging title in himself, by adverse possession as well as by grant.

The jury rendered a verdict in favor of the defendant, and the plaintiff has appealed.

Before considering the exceptions, it may be well, in a general way, to state the facts and sources of title upon which the respective parties rely.

They are thus set forth by the plaintiff's attorneys: "G. B. Palmer, plaintiff's source of paper title, had granted to him in 1838, a tract of 576 acres, which included the 100 acres in dispute. He died in possession in 1865. His children (except plaintiff's wife) conveyed their interests to plaintiff. They made deeds at different dates. In the first set of deeds, from 1871 to 1875, the land was described as 449 acres. But in 1885 all of them except D.D. McCraw (and he in 1886) corrected the error of acreage by making new deeds, to plaintiff, to wit, for 576 acres, stating therein: ``It was the intention of each of us (in the deeds heretofore made) to convey all our right, title and interest in the premises covered by said grant.' His wife afterwards devised to him her interest therein by will, made in North Carolina, which had only two witnesses. She left no children. G.B. Palmer's estate was administered upon by plaintiff and T.W. Palmer, one of the sons. Plaintiff lived in North Carolina. T.W. Palmer fell out with plaintiff somewhere in the sixties, and did not pay the taxes along about 1866 or 1867. The land was put up, and, as claimed by defendant, sold for taxes and bid in by one A.P. Turner, who did not comply with his bid. Defendant does not contend that A.P. Turner acquired legal title at such alleged tax sale, but claims color of title therefrom in this way: Judgment was obtained in a suit on debt against A.P. Turner, and his interest, whatever it might be, was sold under execution, and bid in by Merrick (assignee of Casey Cummings), and Merrick, on June 17, 1886, made a quitclaim deed to G.S. Turner for twenty dollars. Defendant claims that G.S. Turner went into possession under that deed and then began his adverse possession, which, they say, ripened into title June 17, 1896. The man whom Turner first put into possession was Z.B. Nance. Plaintiff claims that Nance was plaintiff's tenant and agent as to this land in 1885 and 1886, and proved it by documents. Nance was succeeded by Mrs. Wilkins and Mrs. Dormant; Turner claiming they were his tenants; and plaintiff claiming they were his, since 1900; while these ladies claim that they were holding for themselves all along till 1900. The testimony was very conflicting as to the character of the possession of Mrs. Wilkins and Mrs. Dormant.

"Plaintiff proved, upon the subject of his title by possession: that G.B. Palmer was in possession from 1853 to his death in 1865 (defendant's witness Harris says since 1840); his heirs were in possession (of at least part, and thereby of the whole under grant covering whole) till they conveyed to plaintiff; and his own possession by tenants ever since, except when these ladies were in."

They are stated as follows by the defendant's attorneys: "The defendant showed a prior grant to Moses Waters, dated August, 1817, for the purpose of showing title out of the State at the time of the Palmer grant. 2. A sale of the land in dispute by the sheriff of Spartanburg County for taxes of 1866, at which sale A.P. Turner became the purchaser. 3. A sale of the same tract under execution in the name of the State and Elizabeth Littlejohn against A.P. Turner in 1871, at which sale the land was bid off by Casey Cummings, who transferred their bid to A.C. Merrick, to whom a deed was executed by G. Wash. Thompson, sheriff of Spartanburg County. 4. A conveyance by A.C. Merrick to Geo. S. Turner, who went into possession in 1886. 5. Deed from Geo. S. Turner to Duncan Sanders, conveying a one-half undivided interest. 6. Deed from Duncan Sanders to R.B. Powell, conveying the same one-half undivided interest. 7. Deed from R.B. Powell by Duncan Sanders, as attorneys in fact, to Duncan Sanders, under power contained in the mortgage to secure the purchase money. 8. Deed from Duncan Sanders to W.N. Turner, conveying the same one-half undivided interest. 9. Partition between W.N. Turner and heirs of Geo. S. Turner in 1899, at which sale the defendant became the purchaser, and a proper deed of the entire tract made to her by the clerk of the Court.

"Geo. S. Turner died about 1894, and his minor heirs continued to hold possession through tenants that were put in possession by their father and Duncan Sanders."

The first exception assigns as error that his Honor, the presiding Judge, in charging certain of defendant's requests, violated sec. 26, art. V, of the Constitution, which provides that "Judges shall not charge juries in respect to matters of fact." The requests are set out, but the exception fails to specify in what particulars they trenched upon the provisions of the Constitution. They are, therefore, too general for consideration. Furthermore, the statement of facts was merely hypothetical.

The second exception is as follows: "2. That his Honor further erred in charging in those requests that the adverse possession set up by the defendant could not be defeated by acts of Powell, referred to in the 18th request; the error being that, as matter of law, it was not necessary for the said Powell to claim under the plaintiff in order to be in possession, to break a continuity of possession of the defendant, and those under whom she claims."

The 18th request, refered to, in the exception is as follows. "If you should find that Bob Powell remained on the premises after his interest, if he had any, was conveyed to Duncan Sanders, and claimed the land, or attempted to exercise any ownership to the same, unless he claimed through the true owner of the land, his claim and acts of ownership and possession, if he made any, were simply that of a trespasser, and would not prevent the possession of the other tenants in common from ripening into title, and especially if Powell abandoned the premises. For occasional acts of ownership, or trespasses committed by others than the true owner, do not interrupt the continuity of the possession of others claiming under color of title, and holding the land adversely."

The rule is thus stated in 1 Cyc., 1011, et seq.: "The mere temporary entry or intrusion, or occasional trespass by a stranger, does not interrupt the running of the statute in behalf of the adverse claimant. The intrusion of a trespasser will, in no case, interrupt the continuity of adverse possession, unless continued for such a length of time that knowledge of the intrusion is presumed, or so as to become the assertion of an adverse right. If they are known, they become assertions of right, and operate to break the continuity, unless legal remedies are resorted to, within a reasonable time, to regain possession, and are prosecuted to a successful determination."

The Court uses this language in the case of Duren v. Sinclair,22 S.C. 361, 366: "While it may be true that certain acts of ownership, exerted by others during the statutory period, submitted to by the plaintiff, or that an action of trespass under some circumstances might afford evidence that he was not holding as owner himself, but by permission of the true owner, yet it would not be true that any act of ownership by another, or that any and every action of trespass, as the Judge was requested to charge, would have that effect. * * * Each case must be governed by its own facts and circumstances, and what would be the law in reference to one state of facts might not be in reference to another. Adverse possession is one of the modes of acquiring title to land. At the beginning of such possession the actual title is in some one other than the adverse holder,i. e., the true owner.

"If he submits for the statutory period, the adverse holding ripens into a title against him, and, of course, against all others, and the fact that others not being the true owner may have attempted during his possession to exercise some acts of ownership, or commit some trespass, or may have brought action of trespass against him and failed, would not prevent the title of the true owner from passing to him at the expiration of the statutory period."

This principle, however, is to be considered in connection with another rule, to wit: "By the execution and delivery of a deed of land, the entire legal interest in the premises vests in the grantee, and if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises, in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation, and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee." 1 Cyc., 1039; McCutchen v. McCutchen, 77 S.C. 129.

There was no testimony showing that the case under consideration comes within the principle last stated, and the exception is, therefore, overruled.

The remaining exceptions will be set out in the report of the case and considered in their regular order. Third Exception: The appellant's attorneys have not argued this exception, and we deem it only necessary to state that it is without merit.

Fourth Exception: Conceding that the ruling set forth in this exception was erroneous, it did not relate to the vital question in the case; for, as stated by appellant's attorneys: "In this trial, as well as the other, the real battle ground was defendant's claim of adverse possession."

Fifth Exception: This exception was practically abandoned, but even if still urged it could not be sustained, for the reasons stated in considering the fourth exception.

Sixth Exception: The proposition that, as matter of law, the possession attends the legal title, is entirely distinct from that embodied in the exception, and should have been presented in a separate request, if relied upon, by the appellant.

Seventh Exception: The fact that the void will might be introduced in evidence, as color of title, does not show that it conveyed title.

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