Campbell v. Stewart

The opinion of the Court was delivered by

Mr. Justice Watts.

This was a suit for partition between the plaintiff and defendants, as heirs at law of John M. Stewart, of a tract of real estate containing 383 acres of land in Chester county. One of the defendants, John Stewart, by answer in the cause, alleged that title to 150 acres of said tract was in him, and asked that this be not partitioned, but that title be decreed in him for the same, and William Stewart, Samuel Stewart, and Nannie Stewart, by their answer, unite with James Stewart in asking that his prayer by his answer made be granted. All of the other defendants in the cause failed to file answers and made default. The cause was referred to J. C. McEure, Esq., as special referee, to take the testimony and determine all issues of law and fact and report to the Court his- conclusions thereon. He made his report, which should be set out in the report of the case, and, upon exceptions being filed thereto, the matter was heard by his Honor, Judge DeVore, who, on August 10, 1914, filed his decree overruling the exceptions to special referee’s report and confirmed the same. From his Honor’s decree plaintiff appeals and by six exceptions challenges the correctness of his rulings and asks reversal.

1-3 The first exception was not argued by appellant, as appellant says in his printed argument:

“We do not desire to discuss question raised by exception 1, but desire to direct the Court’s attention to questions raised in exceptions 2-6.”

The questions raised by the exceptions are practically questions of fact alone, with a complaint that the referee and Circuit Judge in their findings in respect to adverse possession and presumption of a grant are wholly erroneous because neither in law nor fact have these claims been made out, and that, in applying the law to the facts of the case, the Circuit Judge erred. The Circuit Judge concurred with the referee in his findings of fact that the plaintiff had no interest in the 150-acre tract claimed by the defendant, James Stewart, and adjudging that the plaintiff was not entitled to partition thereof. As this was a suit for partition, and defendants, by answer, raised the issue of title to the 150-acre tract of land, it was incumbent on the plaintiff to prove title before partition can be had, and the denial of title, as set up in the answer of defendants, was sufficient for them to introduce evidence of adverse possession for the statutory period and to show affirmatively adverse possession in defendants by an answer which contains a genera1 denial of plaintiff’s title. The testimony amply sustains the concurring findings óf the special referee and Circuit Judge, and in this appeal the appellant cannot reverse the finding of fact on the legal issues. If there is any testimony to sustain that finding, we cannot find any errors of law on the part of the ruling and finding of the Circuit Judge, as complained of. All exceptions are overruled.

Judgment affirmed.

Footnote.—-As to acquisition of title by adverse possession, see Anderson v. Case, 50 S. C. 293, 27 S. E. 693; Harrelson v. Sarvis, 39 S. C. 15, 17 S. E. 368; Young v. Watson, 1 McMull. L. 449; Geiger v. Kaigler, 15 S. E. 273; Abel v. Hutto, 8 Rich. L. 42; Cantey v. Platt, 2 McC. L. 260; Duren v. Key, 50 S. C. 444, 27 S. E. 875; Busby v. F. O. P. R. Co., 45 S. C. 312, 23 S. E. 50, and note in 46 L. R. A. (N. S.) 487.