48 S.C. 28 | S.C. | 1896
Lead Opinion
The opinion of the Court was delivered by
This action was commenced in January, 1893, for partition of real estate, and has heretofore been before this Court on a question of demurrer. The demurrer was overruled, and the defendants filed their answers setting up the defenses hereinafter mentioned. The case was tried before Judge Watts and a jury, at the October, 1895, term of the Circuit Court for Sumter County, and resulted in a judgment for defendants, from which plaintiffs have appealed to this Court.
Thomas Garrett died in 1865, leaving as his heirs at law his widow, Elizabeth Garrett, now Elizabeth Moore, his son, the plaintiff, John A. Garrett, his daughter, the plaintiff, Harriet D. Singletary, and his daughters, Mary Pritchard, Ellen DeLoach, and Mariah Norton. Mary Pritchard, Ellen DeLoach, and Mariah Norton have since died intestate. Mary Pritchard left no husband or lineal descendant surviving her. Ellen DeLoach left, as her only heir at law surviving her, her grand-daughter, the plaintiff, Louisa
The following statement is set out in The “Case:” The plaintiffs introduced testimony to prove the following facts, to wit: That Thomas Garrett, their ancestor, was at the time of his death, in 1865, seized in fee and possessed of the land in question; that the plaintiffs were his heirs at law, and entitled to the interests in the lands as alleged in the complaint; that the defendants were each in possession of a part of the land, and plaintiffs claimed that defendants derived title to the land from the same source, to wit: from the said Thomas Garrett. Upon due notice, the defendants having failed to produce the original deed, an office copy of deed (with plat attached) of Elizabeth Moore and John S. Moore to Edwin W. Moise was introduced in evidence by plaintiffs as a part of their testimony in chief, and, upon due notice, the defendants produced the original of five other deeds, the execution of which were admitted and were offered in evidence by the plaintiffs. The following is a description of the deeds: 1. The deed of-John S. Moore and Elizabeth Moore to Edwin W. Moise, which will be set out in the report of- the case. 2. Also deed of Edwin W. Moise to Marion Moise, dated 14th day of June, 1876, and was recorded July 14th, A. D. 1876; consideration $1,200; conveyed the 502 acres in question, also 52 acres near city of Sumter; being in usual form and with usual covenant of general warranty. 3. Also deed of Marion Moise to Jared M. Chavis, dated 21st day of May, 1882, consideration $587; conveys 116J acres of the land in question; deed in the usual form, with covenant of general warranty. 4. Also deed of Jared M. Chavis to Rosa Weinberg, dated October 21st, 1886, and was recorded on the 21st October, 1886; consideration $590; conveys the same 116|- acres above
The defendants introduced testimony to prove that E. W. Moise entered intered into possession of the entire tract under and at the date of the deed of John S. Moore and Elizabeth Moore to E. W. Moise, and held adverse possession thereof until he conveyed the entire traet to Marion Moise on the 14th day of June, 1876; that Marion Moise entered into the possession of the entire tract at the date of the conveyance thereof to him by E. W. Moise, and held adverse possession thereof until he conveyed, first, a portion thereof to Jared M. Chavis, by his deed above stated, who afterwards conveyed the same to Rosa Weinberg, by his deed to her of the date as above stated, and the remainder of the entire tract to William R. Osteen, by his deed of date as above stated; and that said Jared M. Chavis held the portion so conveyed to him until the date of his deed to Mrs. Rosa Weinberg, as above stated, and that Mrs. Rosa Weinberg and William R. Osteen held adverse possession of the portions purchased by them from the date of their respective deeds until the commencement of this action. The plaintiff, J. A. Garrett, testified that he had never con
The plaintiffs presented to the Judge certain requests to charge, which will be incorporated in the report of the case. The defendants also presented certain requests to charge, which will be set out in the report of the case (except those which were withdrawn), together with his Honor’s charge and appellant’s exceptions. His Honor refused a motion for a new trial.
The plaintiffs claim that the deed to E. W. Moise, while
The respondent’s attorneys argue very strenuously that the rule is not now as we have hereinbefore stated, because of the innovation made upon the law of this State when the Code was adopted in 1870. When the sections of the Code relating to the statute of limitations are analyzed, it will be seen that they do not sustain the views which the respondent’s attorneys present to the Court as to uniting or tacking the possession of the occupants and those under whom they claim, so as to be deemed an adverse holding. A glance at the different sections aforesaid shows that when' it is intended to describe the different possessions, whether of the plaintiff, his ancestor, predecessor or grantor, “continued,” “sole or connected,” apt and plain words are used for that purpose. It cannot be contended for a moment that there are any words in section 101 relating to the uniting or tacking of different possessions so as to be deemed an adverse holding.
The only word referring to the manner in which the premises have to be possessed is “adversely.” The main object of section 102 was that all the premises described in the written instrument, under the circumstances therein mentioned, should be deemed to have been held adversely, although only a part of the premises had been occupied.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, except as to John A. Garrett, and the case remanded for a new trial.
Concurrence Opinion
While I concur in the principles laid down in the foregoing opinion, it seems to me that the legitimate deduction from those principles is, that while the plaintiffs, John A. Garrett and Harriet D. Singletary, may be protected from the plea of the statute of limitations by reason of the minority of some of their co-plaintiffs, yet they are not protected from the presumption of a deed from them to F. W. Moise for their interests in the land, arising from the lapse'of twenty years. It is not pretended that John A. Garrett was himself under any disability, and, as shown in the opinion, he cannot be protected by the disability arising from the infancy of some of his coplaintiffs, as against that presumption. For a like reason, while Mrs. Singletary may be protected from the plea of the statute by reason of the infancy of some of her coplaintiffs, yet she cannot be protected from the plea of the presumption of a deed by the disability arising from her coverture, for the reason that she failed to establish the essential fact that she was a married woman before or at the time of the adoption of the Constitution of 1868; for the rule, as I understand it, is, that one who claims the protection of some disability, must show clearly all the facts necessary to establish such disability, and this, though she was afforded the opportunity of doing in this case, she has failed to do. I think, therefore, that there was no error in the judment either as to her or as to John A. Garrett, and hence the judgment as to them should be affirmed. But as there was error in the judgment of the Circuit Court as to such of the plaintiffs as were under the disability of infancy, for the reasons stated in the opinion,