50 S.C. 161 | S.C. | 1897
Theopinion of the Court was delivered by
This is an action for partition of
The evidence before the jury tended to show that James Gaulden died intestate in 1827, seized and possessed of the land in dispute, leaving as his heirs at law his widow, Frances Gaulden, and five children, John, who was the father of defendants; Sarah, who was the mother of plaintiff; William, who died unmarried and intestate previous to 1841; Andrew J., who died during the war, unmarried and intestate; and Charles B., who died about 1854, unmarried and intestate. In 1841, Andrew J. conveyed all his interest in said tract to John and Charles B. After the death of Charles B., Andrew J. conveyed, in 1856, to John all his interest in the real estate of Charles B. Jn the same year, Sarah Burnett conveyed to John Gaulden all her interest in the real estate of Charles B. Gaulden. Sarah lived on the land in dispute until her marriage in 1849, when she moved off. In 1859 she took possession of 1-|- acres of the original tract, which contained 223 acres, and in July, 1880, she took possession of 5J acres additional, adjoining the 11-acre lot, and occupied the seven acres until her death, in 1895. In her testimony, taken de bene esse before her death, she said that her mother, Frances Gaulden, gave her the 1J acre lot, and that her brother, John, gave her the 5J acre tract, “in that compromise, as you call it.” Frances Gaul-den, the widow, continued to live on the land in question until she died, in August, 1879, intestate, leaving said John Gaulden and Sarah Burnett as her only heirs at law. John Gaulden lived on the disputed land, taking care of his mother, working it and controlling it as his own, until his death, in 1889. He died testate, devising the land in dis
The answer, after denying the allegations of the complaint, set up by way of defense, (1) that John Gaulden died seized and possessed in fee of the land in dispute, and by his will devised the same to defendants; (2) the purchase by John Gaulden of all the interest of Sarah Burnett in the estate of Frances Burnett, shortly after the death of Frances, in settlement for which John Gaulden gave to Sarah Burnett a small tract of land adjoining the land in dispute; (3) adverse possession by John Gaulden and the defendants for more than ten years before the commencement of the action and since the said settlement.
The foregoing statement of some of the facts which the evidence tended to show and of the issues, will be sufficient for a clear understanding of the points raised here.
The ninth exception need not be considered, in view of what has been already said.
The judgment of the Circuit Court is reversed, and the case is remanded for a new trial before a jury on the issue raised as to title.