Bardin v. Commercial Insurance & Trust

64 S.E. 165 | S.C. | 1909

April 9, 1909. The opinion of the Court was delivered by This action was to recover a tract of land in Florence county containing two hundred and thirty-one acres. The answer, besides a general denial, plead the Statute of Limitations, adverse possession and presumption of a grant. At the close of Plaintiff's testimony, defendant moved for a nonsuit on the grounds that there was no evidence of a grant or presumption of a grant from the State, and no testimony tending to show that plaintiff and defendant claimed from a common source. This motion being overruled defendant submitted no testimony and the jury rendered a verdict for the plaintiff and from the judgment thereon defendant appeals, renewing the question presented on the motion for nonsuit.

We think there was no error. There was testimony that S.S.A. Brooks in 1882 conveyed a 441 acre tract of land, which included the tract in question, to I.V. Bardin. That the tract in dispute was mostly woodland or bay land, the principal value of which was the timber; that it was known as the Bardin land and was used by Bardin for the purpose of getting wood, straw and timber therefrom when needed, and that Bardin paid the taxes thereon until his death in 1897. His widow and children, the plaintiffs, continued in possession using the land in the same way, or permitting their tenants to use the land for wood, straw and timber, and the widow continued to pay the taxes thereon. This action was commenced on September 21, 1905, twenty-three years after the Bardins acquired color of title and possession. The possession of ancestor and heir may be tacked to show twenty years' possession so as to presume a grant or ten years' adverse possession so as to make out title by adverse possession, because there is no break in the continuity of possession. Duren v. Kee,26 S.C. 219, 2 S.E., 4; Epperson v. Stansil, 64 S.C. 488,42 S.E., 426; Kilgore v. Kirkland, 69 S.C. 85,48 S.E., 44. The possession of the Bardins was adverse and continuous for more than twenty years and while the land in question was not cultivated or enclosed it was used for the supply of fuel and timber, the ordinary uses for which such land was fitted. Code Procedure, sec. 103.

The payment of taxes on the land for a number of years by the Bardins was also some evidence to be submitted to the jury on the ground whether the State had parted with title. Busby v. R.R. Co., 45 S.C. 313,23 S.E., 50; Kolb v. Jones, 62 S.C. 195,40 S.E., 168.

The judgment of the Circuit Court is affirmed.