Sprott v. Sprott

July 18, 1918. The opinion of the Court was delivered by This was a suit for partition in which the Santee River Cypress Lumber Company was joined as a defendant under the allegation that it claimed some interest in the premises sought to be partitioned. In fact the controversy is between this defendant-respondent and the other parties to the suit. This respondent by answer denied title of plaintiffs, and set up title in itself to four tracts of the land sought to be partitioned. The contest is over a large body of swamp land embraced within the interlock of the plats of the contending parties. The case was tried before Judge DeVore and a jury at the March term of Court, 1916, for Clarendon county, and resulted in a verdict for the Santee River Cypress Company. A motion for a new trial was made and refused.

After entry of judgment appellants appeal, and by 15 exceptions allege error, and the respondents served notice that they would ask that this Court sustain the judgment of the Circuit Court upon four additional grounds. At the hearing the appellants abandoned their second exception. The exceptions relate mainly to his Honor's holdings and charge on the following subjects: First, color of title; second, tax deeds; third, burden of proof.

The first, third and fourth exceptions allege error in excluding from evidence that portion of the McIlwain plat offered in evidence, where the surveyor stated that he had not run the lines because of high water, but had adopted the old lines on old papers for the reason that the plat delineated the land claimed by the plaintiffs and showed the extent of their claim and was a good color of title. This exception should be sustained. The plat should have gone in for what it was worth to show the extent of plaintiff's claim and holding, and his Honor was in error in curtailing the force and effect of the plat. It certainly was a circumstance to show the extent of plaintiffs' claim for a color of title; it is requisite to show the extent of occupant's claim, and the color of title need not, of necessity, be in writing, but a line of stakes or marking of trees, coupled with possession is sufficient. The plat in question should have been admitted not as original evidence of the location of the premises in question, but for the purpose of showing that plaintiffs' possession was held under a claim of title embracing the swamp portions of the tract as well as the upland portions of the tract as shown by the McIlwain plat and evidence showed they had passed the upland many years. The lines drawn on the plat show the extent of the claim made by the occupant under the plat. The plat may not be accurate, but it shows the extent of occupant's claim under it, and was competent evidence as color of title. "Color of title is anything which shows the extent of occupant's claim."Simmons v. Parsons, 2 Hill 492; Slice v. Derrick, 2 Rich. 629; Turnipseed v. Hawkins, 1 McCord 278; Thompson v.Brannon, 14 S.C. 549; Stanley v. Shoolbred, 25 S.C. 187;Heyward v. Farmers' Co., 42 S.C. 146, 19 S.E. 963, 20 S.E. 64, 28 L.R.A. 42, 46 Am. St. Rep. 702. Exception 1 is sustained.

Exception 3 is overruled for what is said in sustaining exception 1. The will was admitted, not as a will, but as color of title for bona fide claim.

The exceptions 6, 7, 8, 9, 12, 14 and 15 raise issue as to the tax deeds. The first question raised is that the sale is invalid because the treasurer issued his execution — it appears on the face of the papers — under "An act in relation to abandoned lands not upon the tax duplicate or forfeited land list (20 Stat., p. 347). and the sheriff says he acted under "An act in relation to forfeited lands, delinquent lands, and collection of taxes" (19 Stat., p. 862), and that his Honor committed error in charging the jury that the deed was prima facie evidence of title, etc. It appears from the executions issued by the treasurer that he acted in pursuance with an act entitled "An act in relation to abandoned lands not upon the tax duplicate or forfeited land list." This act was approved on December 24, 1889, and is found in 20 Statutes at Large, p. 347. The executions of the treasurer are dated June 8, 1891. The sheriff's deed recites that he sold the property under an act entitled "An act in relation to forfeited lands, delinquent lands and collection of taxes, approved December 24, 1887." The reporter will report both of these acts. The levy proceeding, the sheriff's deeds show that the levy was made June 6, 1891, and lands were levied upon and sold as lands of "Unknown." The deeds must be governed by the statutes in force at the time of the levy or of its execution under the statutes in force at the time of this sale. There is no authority of law for the treasurer to issue his execution and make sale, neither under the act approved December 24, 1889. This act expressly repeals the act approved December 24, 1887. The execution issued by the treasurer was issued under an act which gave him no authority to do so, and an execution being a necessary step towards the sale of delinquent lands and being void in this case the tax deeds of sheriff are invalid and void. Under the act of 1889 the duty of collecting taxes under such cases as are now at bar and involved in this case was devolved, upon the sinking fund commission, and the method pointed out and manner in which the sinking fund commission were to proceed. Under the act of December 24, 1889, the act recited in the treasurer's execution, there is no provision for the issuance of such execution, and the issuance of the execution was void and of no effect. It, therefore, follows that the sale under this execution is invalid. "All the requirements of the law leading up to tax sales, which are intended for the protection of the taxpayer against surprise or the sacrifice of his property, are to be regarded mandatory, and are to be strictly enforced." Dickson v. Burckmyer, 67 S.C. 526,46 S.E. 343.

We having reached the conclusion that there should be a new trial, and that the tax deeds are invalid, it is unnecessary to further consider the appellants' exceptions.

The respondents' grounds for sustaining the judgment are overruled.

New trial granted