40 S.C. 435 | S.C. | 1894
The opinion of the court was delivered by
This action was brought for the
The plaintiff’s title, as shown, rested on the judgment of John Fox vs. Robert Garvin et al., obtained at Lexington, on April 3, 1868. This judgment had been transferred by transcript to Aiken County in August, 1875, and the land in dispute was sold under it as the property of Robert Garvin, the defendant in execution, and bought by the plaintiff, the owner of the judgment, on January 7, 1878, to whom the sheriff of Aiken County executed a deed. The right of the plaintiff to sell under the execution in the sheriff’s office, and to refer said sale to the Fox judgment of 1868, had already been settled in the former appeals herein. The defendant, in making out his case, relied upon a deed made to him by his father, Robert Garvin, for valuable consideration, dated April 15, 1874, conveying 500 acres; and upon adverse possession under that deed, and also as color of title under a plat of 4,000 acres, including the said 500 acres conveyed to the defendant, but which said plat had no mark on it indicating the exact boundaries of the 500 acres claimed by defendant.
The defendant offered evidence tending to prove that he paid a valuable consideration for the laud described in the deed to him (500 acres), and the plaintiff offered testimony tending to prove that said deed was made without, consideration, and for the purpose of hindering and delaying the creditors of Robert Garvin. The defendant also offered evidence which tended to prove that he held a plat of the land described in the complaint, to wit: a plat of 4,000 acres, including the 500 acres described in the deed of Robert Garvin, to the defendant, R. C. Garvin,
Plaintiff requested the judge to charge the jury as follows: “That if the jury find from the evidence that the deed from Robert Garvin to R. C. Garvin was intended to delay, hinder, and defeat the creditors of Robert Garvin, or any of them, and that both the grantor and grantee, Robert and R. 0. Garvin, took part in such fraud, then R. 0. Garvin can gain no advantage from said deed, for it is void, and can not be used even as color of title, for no man can take advantage of his own wrong. The defendant requested the judge to charge: ‘ ‘That if the jury believe from the evidence that the deed of Robert Garvin to R. 0. Garvin, the defendant, under which the defendant claims title, was made with intent to hinder and delay creditors, and with fraudulent intent, yet, notwithstanding such fraud, if such deed on.its face purports to convey the lands in dispute, such deed is color of title sufficient for the purpose of the statute of limitations, and if the defendant held the lands adversely for the period of ten years under such fraudulent deed, the plaintiff can not recover,” &c.
After a very full and clear charge of the judge (which should appear in the report of the case), the jury found for the plaintiff the land in dispute, and the defendant appeals to this court for a new trial on three exceptions, which are in the record, merely giving extracts from the judge’s charge; and we think the points made may be fully considered, under the questions stated in the case, as follows: (1) Does the statute of limitations run against the creditor of the grantor, in favor of one who knowingly takes land under a fraudulent deed, from the date of the deed, or only from the time when such creditors have notice of the fraud; or can the party in possession avail himself of such as color of title? (2) Can one who is in possession of land use as a color of title a plat of 4,000 acres, when he claims only 500 acres of the land covered by the plat. There being no resurvey or subdivision line ou such plat to indicate the extent of the claim?
The judgment of this court is, that the judgment of the. Circuit Court be affirmed.