Watts v. Whetstone

March 17, 1908. The opinion of the Court was delivered by This action was begun sometime in June, 1903, for partition of about five hundred acres of land in Aiken County amongst the heirs-at-law of Elizabeth Garvin (deceased). Her husband, Wesley Garvin, was originally a party, but has since died. The heirs-at-law of Elizabeth were the said Wesley Garvin and her six children, Ella Whetstone, wife of Press Whetstone; Ellen Watts, wife of Thomas Watts; Joseph A. Garvin, Elestine Catharine Garvin, Robert Garvin and William Garvin, the two last being minors who appeared by their guardian adlitem. The defendant, Ella Whetstone, departed this life intestate, leaving as her heirs Press Whetstone, her husband, and her two children, Lloyd Whetstone and Samuel Whetstone, both of whom are minors.

The two minors Lloyd Whetstone and Samuel Whetstone were made defendants.

The defendant, John Garvin, died intestate, and his heirs-at-law, Nancy Garvin, James C. Garvin, J. Felder Garvin, Jacob Aaron Garvin, Sarah Ann Garvin and Emma Courtney and Charles L. Temples, were made parties defendant.

By agreement of the parties, it was referred to W.M. Jordan, master for Aiken County, to take all relevant testimony offered by the respective parties, and report said testimony and any special matter. The testimony was so reported.

The cause came on to be heard by his Honor, George W. Gage, and by his decree, filed the 23d of January, 1907, he found that the plaintiffs were not entitled to the relief which they demanded and dismissed the complaint.

From the decree the plaintiffs and the defendants, Lloyd Whetstone and Samuel Whetstone, have appealed to this Court.

The questions raised by the appeal will be considered. It seems that the two brothers, Robert Garvin and John Garvin, both citizens of Aiken County, have had a very unpleasant family lawsuit. See Garvin v. Garvin, 27 S.C. 472,4 S.E., 148; Garvin v. Garvin, 31 S.C. 581, 10 S.E., 507;Garvin v. Garvin, 34 S.C. 389, 13 S.E., 625, and Garvin v. Garvin, 40 S.C. 435, 19 S.E., 79. Both of them having died, the contest has been carried on by their children. It refers, so far as this suit is concerned, to a tract of land of five hundred acres in Aiken County on the waters of Cedar Creek and South Edisto River, and bounded now or formerly on the north by lands of H. Ott, east by lands of Carson Davis, south by lands of T. Friday, and west by lands of Franklin Johnson.

It seems that the tract of land was sold as the property of Robert Garvin, by Holly, sheriff of Aiken County, under a judgment held by one Fox, and purchased at sheriff's sale by John Garvin. It is admitted on all sides that this was a valid lien upon said lands and the oldest of said liens, and by said purchase at said sheriff's sale, John Garvin got a paper title to said land; these facts were so found by the Circuit Judge, and from this conclusion there is no appeal.

But it is claimed that the deed from Robert Garvin to his daughter, Elizabeth Garvin, for the five hundred acres of land was and is a valid title to her heirs-at-law, parties to this suit. The Judge holds that such is not the fact; first, because the deed from Robert Garvin to Elizabeth Garvin was not proved as required by law. It was sought to prove the deed by a certified copy of the record of mesne conveyance, which is no record. It being an effort to prove the existence of a deed by the proof of a probate of said deed made by one of its witnesses taken before the grantor as a notary public. The Judge holds that such proof was improper, and refers to the case of Woolfolk v. GranitevilleManufacturing Company, 22 S.C. 332.

It seems that Robert Garvin, who made the deed in question, was a notary public, and as such notary certified that one Garvin, on oath, declared that he saw the deed signed, sealed and executed, and that the register of mesne conveyances of Aiken County upon the face of said certificate made record of said deed, and that a certified copy of said deed was the only evidence offered of such deed. The Judge held, as just stated, that the probate of such deed was unlawful, and did not entitle the deed to be recorded; and therefore no color of title was furnished by it. In addition to the case supra, we cite from 21 Enc. of L., 2d Ed., 568, which says: "A notary who is a party to or interested in a conveyance is incapable of taking the acknowledgment thereof to the same extent that any other officer would be incapable under similar circumstances."

If there was no lawful record to the deed no notice to the world was imparted thereby, so John Garvin and his assignees were not affected by said deed. But in addition to the weakness of appellants' title, it was contended that Robert Garvin's conveyance to his daughter was without valuable consideration and would not impart color of title to her heirs.

It was further contended that the appellants had not possession of the entire premises in dispute; all they claimed was a "possession patch" of less than one acre.

The said Elizabeth never lived on the land but resided nine miles away, and none of her heirs or assigns have lived upon it.

The Circuit Judge, therefore, found as facts that the testimony as to possession and acts of dominion were too meagre to warrant the conclusion that Elizabeth and her representatives ever owned the land, or were entitled to claim any part of it.

Let the exceptions be reported. We overrule each and every one of them, because this is a law case and the facts found by the Circuit Judge are conclusive upon us, and his positions of law are entirely satisfactory.

We, therefore, affirm the judgment of the Circuit Court.