Connor v. Johnson

November 27, 1900. The opinion of the Court was delivered by This is the second appeal in this case — the first being reported in 53 S.C. 90; and, as the pleadings are not set out in the "Case," in order to ascertain what was the nature of the case, we have looked to the statement made by Mr. Justice Gary, who delivered the opinion of this Court under the former appeal, and to the general statement made in the "Case" prepared for argument here. From these sources we learn that the action was for trespassquare clausum fregit upon a certain parcel of land of which the plaintiff alleged she was in possession under a paper title, and that, at sundry times before the commencement of this action, the defendant unlawfully entered upon said land and committed divers trespasses, for which she claimed damages. The defendant in his answer denied all the allegations of the complaint, and claimed that he was the owner of the land upon which he was charged with trespassing.

From the judgment entered upon the verdict in favor of the plaintiff at the first trial, the defendant took an appeal based upon ten exceptions, all of which were overruled except the second exceptions, which was very properly sustained, as the Circuit Judge, who presided at the first trial, had instructed the jury "that courses and distances on the plat control as against the boundary of an adjacent landowner called for on said plat;" and for that error the judgment was reversed and the case was remanded. The case, therefore, again came on for trial before his Honor, Judge Watts, and a jury, when a verdict was again found for the plaintiff, and judgment having been entered on such verdict, the defendant again appeals, basing his appeal upon the twenty-three exceptions set out in the record, which should be incorporated by the reporter in his report of the case, together with the charge of the Circuit Judge.

Before considering the questions presented by this appeal we deem it necessary to make the following preliminary observations in order that we may have a clear view of such questions: It must be kept in mind that this is an action of trespass quare clausum fregit, and not an action of trespass to try titles; and that there is this fundamental difference between these two actions, viz: that in the former the object being to recover damages for trespass upon the possession of the land, it is not necessary for the plaintiff to show title himself, but possession merely; while in the latter, the plaintiff, in order to recover, must show title in himself, and must recover upon the strength of his own title and not upon the weakness of his adversary's title. Accordingly, in an action of trespass quare clausumfregit, when the plaintiff proves that he is in possession of a given tract of land and that defendant has trespassed upon it, he is entitled to recover, unless the defendant shows that he has title to the land himself — not that the title is in some third person, as would be sufficient to protect him if the action were an action of trespass to try titles, or that he entered upon the land and did the acts complained of as trespasses, by the permission or under a license from the true owner of the land. If, therefore, the plaintiff in this case has satisfied the jury (and we must assume from the verdict that she has) that she was in the actual occupancy of a tract of land, claiming the whole of said tract under color of title, and that the defendant had committed trespasses within the lines of said tract, then the plaintiff would be entitled to recover, unless the defendant had satisfied the jury that he had good title, in himself, to the land upon which the alleged trespasses were committed, or that he did the acts complained of as trespasses by the permission or under a license from the real owner of the land. Inasmuch, however, as the defendant did not plead such permission or license from the true owner of the land, as a defense, and as there was no evidence to that effect, we may dismiss that defense from further consideration. The defense really set up by the defendant was that he had the legal title to the land in dispute under a deed from the former owner, one Brown, which antedated the deed under which the plaintiff claimed, which he claimed, if properly located, would cover the land upon which the alleged trespasses were committed. So that the real question in the case was as to the proper location of the deed under which the defendant claimed. It is true, that the defendant also undertook to show that he went into possession in 1873 of the land under a contract to purchase from one Bird, who was in possession under a contract to purchase from the former owner, Brown; but Bird being unable to comply with his contract, he agreed to sell that portion of the land adjoining the plaintiff's land to the defendant, who took his title direct from Brown, as Bird had never received any title; and it is under that title that the defendant claims, as he himself says in his testimony We may, therefore, dismiss from further consideration any claim that may have been set up, under the defendant's contract to purchase from Bird, as he never did and never could have acquired any title from Bird, who never had any legal title himself; for a party who goes into possession of lands under a contract to purchase can not acquire title by adverse possession (Richardson v. Broughton, 2 N. McC., 417;Richards v. McKie, Harp. Eq., 184). So that, as we have said, the real question in the case was as to the true location of the land conveyed to the defendant by Brown. That deed describes the land therein conveyed as: "all that tract or parcel of land, containing 118 acres, situated in Spartanburg County, on both sides of Boiling Springs Branch, waters of Shoaly Creek, of Pacolet River, bounded by lands of Turner Cantrell, T. Daves and others, which is more fully represented by the above plat," and the plat is annexed to the deed. Although the Bush land is not represented in the deed itself, as one of the boundaries of the land conveyed, yet it is laid down in the plat as lying to the south of the land conveyed. There was a conflict of testimony as to the location of the land conveyed to the defendant by Brown, involving a conflict of testimony as to the correct location of the Bush line, and the verdict of the jury shows that they solved this question in favor of the plaintiff; and hence the verdict must stand unless the jury were erroneously instructed upon some material matter of law involved in such question. For while it is true that a question of location is largely a question of evidence, and cannot, therefore, be reduced to any definite or fixed rule (Coats v. Mathews, 2 N. McC., 99), yet there are certain general rules of location which, from a very early period in our judicial history (Bradford v. Pitts, 2 M. Con. Rep., 115), have been recognized by our Courts, down to the decision under the former appeal in this case (53 S.C. 90), where these rules are thus stated: "In locating lands the following rules are resorted to, and, generally, in the order stated: 1st, natural boundaries; 2d, artificial marks; 3d, adjacent boundaries, and 4th, courses and distances." But in every one of the cases recognizing these general rules, which we have consulted, the Courts have invariably also recognized the doctrine that these general rules are not inflexible, but may be modified by the circumstances of the case. Without going into any detailed consideration of the numerous exceptions to the Judge's charge, it seems to us that in his charge he kept strictly within the principles of law above laid down. He distinctly recognized the general rules of location above referred to; and he did not even modify these general rules, which, as we have seen, is permissible where the circumstances of a given case call for such modification. For when asked to charge that in locating the defendant's land the jury were bound to go to the Bush line, the adjacent boundary represented on defendant's plat, the Circuit Judge instructed the jury that this was so, unless the marks made by the surveyor required a different location; and this was in accordance with the general rule, which, as we have seen, places artificial marks, which means the marks made on the line by the surveyor, above adjacent boundaries. In this case, the Circuit Judge never did instruct the jury, as the Judge who presided at the former trial had done, that the courses and distances on the plat would control as against the adjacent boundaries. On the contrary, the Circuit Judge, in this case, distinctly charged the defendant's twelfth request, as follows: "If Connor's deed calls for Johnson's land as its northern boundary, and gives courses and distances also, his color of title extends no further than Johnson's line, for adjacent boundaries control courses and distances; and when a tract calls for another as a boundary, its lines cannot go beyond the lines of the older grant." It seems to us, therefore, that none of the exceptions to the Judge's charge can be sustained; and if the defendant had any cause of complaint at all, it is of the findings of fact by the jury, and not of the Judge's charge.

We will next take up the exceptions imputing error in the rulings as to the admissibility of testimony. The second exception imputes error to the Circuit Judge in admitting testimony as to trespass north of the line laid down on the plat attached to the defendant's deed as running "West 29." In the first place, we do not find that any ruling was made as to any such testimony; and even if it had been, there would have been no error; for that line being laid down on defendant's plat as his northern line, the question as to whether it was the correct line or not, depended upon the facts, to a certain degree, at least, and the Circuit Judge had no right to determine these facts. If that line proved to be the correct line, then the testimony objected to would, unquestionably, have been admissible. If, however, that line did not prove to be the correct line, then the defendant suffered no harm, for he certainly could not be held liable for trespassing upon any land except it proved to be the plaintiff's.

As to the third exception, it is clearly untenable, for the matter to which Foster's testimony related was res inter alios acta. If the plaintiff saw fit to compromise a dispute as to the line between herself and Foster, we are unable to perceive what relevancy that had to the present controversy between the plaintiff and defendant. It is not pretended that there was any privity between Foster and the defendant.

The fourth exception, imputing error to the Circuit Judge in allowing the witness, Williams, to testify that he showed a certain corner to Bird for the purpose of locating and defining the limits of the land which Bird had contracted to purchase from Brown, cannot be sustained. Williams was a competent witness to prove that he was the agent of Brown (Covington v. Bussey, 4 McC., 412;Black v. Goodman, 1 Bail., 201; Greenlf. on Ev., 416; 2 Greenlf., sec. 63), and he did prove it. While it is true that agency cannot be proved by the declarations of the professed agent, yet we see no reason why one who is alleged to be the agent of another may not be allowed to prove, by his own direct testimony, that he had been appointed Brown's agentby parol. Of course, if the appointment had been made in writing, such writing would have been the best evidence. And when the Circuit Judge offered to allow the defendant to examine Brown for the purpose of contradicting the statement of Williams, and he was so examined, it seems to us that the objection to the testimony of Williams was left without anything to support it.

The fifth exception, imputing error in refusing to allow the defendant to testify "that the Bush line was the true line agreed upon between him and his grantor; that he bought down to the Bush line," must be overruled, if for no other reason than that the "Case" shows that the defendant was allowed so to testify, and such testimony was not stricken out, and no motion to that effect was ever made. But, in addition to this, we think the testimony was incompetent anyhow, in this case. The "Case" shows that when the defendant was delivering this testimony, he was speaking of the land of which he was put in possession under his contract to purchase from Bird, and, as we have seen, that contract had nothing to do with this case, for the defendant subsequently took a deed from Brown, and he himself testifies that he claimed title, which he had set up as a defense,under that deed; and he did not, and, as we have seen, he could not, have claimed title by possession under his contract to purchase from Bird. So that the real question was the true location of the deed from Brown to the defendant, under which he claimed; and the question as to what were the limits of the land which he contracted to purchase from Bird, was an immaterial inquiry. So that in any view that may be taken, there is nothing to support the exception.

The sixth exception imputes error to the Circuit Judge in allowing the plaintiff, in reply, to offer the testimony of Williams, Mabry, Cantrell, Johnson and Nolen, as to the marks on the line claimed by the plaintiff; and in refusing to allow the defendant to contradict said witnesses. Thus there are two questions presented by this exception. 1st. Whether there was error in receiving the testimony. 2d. Whether there was error in refusing to allow the defendant to contradict said witnesses. As to the first of these questions, we think the testimony clearly competent in reply. The defendant had offered testimony tending to show that there were no old marks on the line referred to, and the testimony in question was offered to show that there were such marks on the said line; and it was, therefore, manifestly competent. As to the second of these questions, it is sufficient to say that we find nothing in the "Case" showing that the defendant either asked or was refused the privilege of putting up testimony to contradict the testimony of these witnesses as to whether there were any old marks on the line claimed by plaintiff. We do find that counsel asked and was allowed to examine Brown to contradict Williams as to his ever having appointed him his agent to show the lines of his land. And we also find that counsel for defendant stated, at the close of the testimony: "We have two witnesses — Mr. Aycock and Mr. Bob Foster — to put on the stand and contradict Mr. Billy Williams as to what he told him;" to which the Circuit Judge responded as follows: "No; I can't go any further." But turning to the testimony of Williams, we find that the witnesses named were not intended to contradict Williams as to the old marks on the line claimed by plaintiff, but to contradict him as to something that it was claimed that he had said in reference to an altogether different line. The sixth exception must likewise be overruled.

Referring to the first exception, which was overlooked in considering the other exceptions to the Judge's charge, we have to say that we are unable to find where the Judge made any such ruling as that imputed to him in the first exception; and that he could not have ruled, as it is claimed he should have done, in that exception without invading the province of the jury. The Circuit Judge had no right to instruct the jury, as matter of law, how the land claimed by the plaintiff, or the land claimed by defendant, should be located, as that was a mixed question of law and fact. All that he could do, properly, was to lay down the principles of law applicable to the case, and leave the jury to apply those rules to the facts as found by them — and this he did do. The first exception must be overruled.

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