15 S.C. 262 | S.C. | 1881
The opinion of the court, was delivered by
This was an action for the possession of a tract of land (Chappell) in Richland county. The complaint states that Henry J. Geiger, the elder, died in October, 1858, seized and possessed of the land, and that he left a will, of which Alexander Geiger was appointed executor, and in which the plaintiffs, his only children, were named as the beneficiaries. That the defendant, George Kaigler, acquired possession of the land sued for some time in the year 1863, and held in some way under Alexander Geiger, who died in 1868.
The defendant answered, making three defences.
1. He denied the alleged seizin of the father, Henry J. Geiger, at the time of his death — admitted death of Henry J. Geiger — that he left a will, of which Alexander Geiger was appointed executor, but he denied that the plaintiffs are entitled to
2. That the premises were devised to the said Alexander Geiger, as executor, with full power to sell and convey the same; that the said Alexander, on October 22d, 1863, bargained and sold the said premises to the defendant, (receiving from defendant a full and ample price therefor), and executed to this defendant a bond for title, and delivered to him a plat of survey of said land; that the defendant entered upon said lands under color of the aforesaid bond and plat as a purchaser of the land, claiming the same in his own right exclusively in fee simple, and that he has ever since held possession of the same under such exclusive claim.
3. The statute of limitations.
The will of Henry J. Geiger was read in evidence, which is as follows:
State op South CaroliNA, LexiNgtoN District.
In the name of God, Amen! I, Henry J. Geiger, of the state and district aforesaid, being sick and weak of body, but of sound and disposing mind, memory and understanding — praise be to God for the same — do make and declare this my last will and testament, in manner and form following, that is to say: I do hereby nominate and appoint my only brother, Alexander Geiger, now living in the State of Alabama, the sole executor of this my last will and testament, hereby revoking and making void all former wills and testaments at any time heretofore by me made, and do declare this to be my last will and testament. I appoint that my aforesaid executor shall make the following disposal of my property:
First. That he shall pay all my just and lawful debts. •
Secondly. That he shall take charge of all my effects and make such disposition of them as he, in his judgment, shall deem proper.
Thirdly. I do declare that my only concern being for the wel
Fourthly. I appoint that he dispose of as much of my real estate as may be necessary to carry into effect the above-mentioned requests, and that the remainder be retained in his possession until any one of the above-named heirs may be disposed to settle, and that he then make an equal division of the said estate among them.
Fifthly. I request him that when the estate of my father-in-law, John Kaigler, deceased, is settled up, that he take charge of so much of the said estate as will fall to me in right of my wife, Charlotte, John Kaigler’s daughter, and that he make such disposition of it as shall be, in his judgment, beneficial to the interest of my children.
Sixthly. Inasmuch as I was appointed by my mother executor of her estate, in behalf of my children, and she gave a portion of her effects to my children, I request him to take charge of the same and manage it for their benefit.
Seventhly. I request that whatever (besides the above-named property) there may be belonging to me, and not mentioned in this will, that he take charge of the same and manage it in the same manner in which he is directed in regard to the other property.
Given under my hand and seal, signed and sealed this the 2d October, in the year of our Lord one thousand eight hundred and fifty-eight, and in the eighty-second year of the Independence of the United States of America.
HeNry J. Geiger, [l. s.]
In the presence of "William J. Ligón, William Henry Baker, John Gates, John H. Arthur.
John A. Arthur said : “ Not acquainted with the land in question. * * * To the best of my recollection, at the time of Geiger’s death, Davis was in * * * Knew that Mr. Davis’ overseer, Loomis, came to pay Geiger, and renewed lease of land in question to Davis.”
John A. Geiger said: “ Seasonable rent of land in question, per annum, is about twenty bales of cotton, or $600 or $800.”
Westley Horsey: “Knew land in question; land certainly worth two years’ rent to clear it,” &c.
The case turned mostly on the will and the pleadings. At the close of plaintiff’s testimony the defendant moved for a nonsuit upon the following grounds :
“ 1. That there was not sufficient evidence of plaintiff’s title to go to the jury unless defendant’s answer be taken as part thereof, which showed purchase and payment by defendant from the executor in pursuance of the power conferred by the will of the testator.
“2. The plaintiffs derived no legal estate' in the premises under the will of the testator, but that the same vested the legal estate in fee in the executor.
“3. That under the statute of limitations the action was barred.”
Judge Wallace granted the nonsuit upon the ground “ that the will of the testator, Henry J. Geiger, conferred upon his executor, Alexander Geiger, a power coupled with a trust, and the executor having made the sale of the premises thereunder and received the purchase money, whereby a complete equitable title appeared in defendant.”
The plaintiffs excepted to the order, and appeal to this court to set aside the nonsuit and for a new trial.
In order to have a clear view of the questions it is necessary to determine at the outset what force and effect the answer of the defendant should have as evidence.
Defendant’s attorney says that “ by common consent that part of the answer which set up the affirmative defence of purchase
Plaintiff’s attorney says: “ The complaint and the answer show that plaintiffs and defendant derive title from the same source,” but denies that the answer is evidence of any other statement in it. The answer is simply a pleading. “ The allegations of new matter in an answer (not relating to a counter-claim) is to be deemed controverted by the adverse party as upon direct denial or avoidance, as the case may be.” Code, § 191.
The statement of the second defence in this answer was new matter, which was not proved aliunde, and the plaintiffs propose to use 'one part, stated as an admission, viz., that the defendant claimed from the executor of Henry J. Geiger, but deny to all its other 'statements the force of evidence.
The answer of defendant in the second defence did make such a statement, but, at the same time and in the same connection it further stated that he paid in full for the land and had the executor’s bond for title under his power in the will to sell. This was but a narrative of'one transaction, of which the plaintiffs propose to use only a part. The statement was a unity, and could not be divided. If the answer was used as evidence, it was subject to the ordinary rules of documentary evidence.
“ The pleadings leave upon the plaintiff the onus probandi, and the allegations of the answer are but a proffer of the points upon which defendant relies. Prior to the opening of the de-fence the plaintiff resorts "to the answer, and produces it as evidence in his behalf. He must take it as it stands, and cannot be permitted to carve out a part and reject the residue which qualifies, explains or pertains to the portions selected. The whole answer should have been admitted as evidence so far as it explains or qualifies, or is properly connected with the portions relied on by plaintiff.” Carrier v. Hague, 9 S. C. 459; Cohen v. Robert 2 Strob. 415.
How stands the matter, then, in the view that the answer was not in evidence ? In that case the second defence must be considered as stricken out, as outside of the answer there was no proof of the facts on which it rests. The action being for the recovery of the land, upon the ground that the plaintiffs have the legal title, and the
To this rule there are several well-established exceptions, in which, from the operation of familiar principles, it is considered unnecessary for the plaintiff to prove a perfect chain of title; as, for example, when the plaintiff can bring the defendant into privity with his title, by showing that the parties claim from a common source. Martin v. Ranlett, 5 Rich. 541; Hill v. Robertson, 1 Strob. 1. Or when it can be shown that the defendant’s possession was acquired in such manner as to estop him from denying plaintiff’s title, as in case of landlord and tenant. Beyond these exceptions we know of no others in actions for the recovery of land upon the ground of title. Of course we do not
It is urged for the plaintiffs that they claim title under their father, Henry J. Geiger, and should not have been required to prove title, for the reason that the defendant also claims under Henry J. Geiger, and, consequently, are within the exception as to tracing title to a common source. The point was well taken if sustained by the proof. What is the evidence upon this subject?
The complaint does not charge that the defendant went into possession under Henry J. Geiger, but states that “the said George Kaigler acquired possession of the land some time in the year 1863, and held in some way under Alexander Geiger.” It is true that Alexander Geiger was the executor of the will of Henry J. Geiger, but the above does not charge that the defendant went in under him as executor. The defendant made no admission in his answer. Omitting in this connection his statement in the second defence, (which, according to our present view, is not in evidence,) he denied “ that he held under Alexander Geiger or any one whomsoever.” Outside of the pleadings there was no proof whatever as to how the defendant went into possession, and therefore the claim that the parties trace title to the same source, as a matter of fact, was not made out.
But it is insisted that to the rule that the plaintiff can recover only upon the strength of his own title,, there is another exception, viz., that without regard to title the party showing the prior possession should be held to have the better right and allowed to recover; that prior possession as against the defendant, should be held to stand in the place of title. The modification here contended for is thus stated by Mr. Tyler: “ When the owner of - the true title neither objects nor consents to the possession of either party, the court regards the better right as between the parties to be vested in the first possessor and grantees claiming through him.” Tyler on Eject. 72; Smith v. Lorillard, 10 Johns. 339, and other authorities.
These authorities seem to indicate that there may be some such rule where the old action of ejectment, pure and simple, is still retained as the means of recovering lands.
This statutory action combined in itself the action for mesne profits in the form of damages, with as much ¡of the old writ of right as put the title in issue. This is apparent from the endorsement required to be placed on the writ, “ that this action is brought to try the title as well as for damages,” also from the force given to the judgment, which, like a judgment in the writ of right, could be pleaded in bar to another action. Thomas v. Geiger, 2 N. & McC. 528; Tyler on Eject. 807. And, also, because a defendant in possession could defend himself by showing title in a third person. Faysoux v. Prather, 1 N. & McC. 296. From this essential-difference in the action of ejectment and our action of trespass to try title, it would seem to be a strained conclusion that, because in ejectment presumption from possession was allowed in certain cases to stand for title, the same should be allowed in an action of trespass to try titles, the very object of which was to try the title, and in which the judgment was conclusive. We think the cases in our reports, considered together, sustain the view that the two actions were not in all respects the same.
It is true that Judge Nott, in Kennedy v. Campbell, 3 Brev. 553, (1816,) said : “ Our act of assembly substituting the action of trespass for the old action of ejectment, merely adopts a new mode of proceeding, but does not alter any of the principles of law relating to the subject. It would be productive of the most mischievous consequences if a contrary construction should be given to the act.” The only question in that case was, whether a landlord had the right to come in and defend an action of trespass to try titles brought against his tenant. Considered in reference to the subject matter, the statement of the judge was perfectly correct, but, as a general proposition, it was unnecessarily broad.
In the case of Young v. Watson, 1 McM. 449, (1839,) relied upon by the plaintiffs, Judge Earle says: “The plaintiff, it is
In the case of Watson v. Hill, 1 Strob. 79, (1846,) it was held that trespass to try titles would lie by one in possession against one who enters upon land and commits a trespass. , Judge O’Neall says: “ In such case I have always supposed that the plaintiff had his choice to bring trespass quare clausum fregit or trespass to try title. In the former he would have the advan-tange of standing on his possession and throwing upon the defendant the burden of showing a paramount title; in the other, he waives this advantage and takes upon himself the burden of showing title. * * * The action of trespass proceeds upon the notion that defendant had entered upon the possession of the plaintiff. When the plaintiff shows actual possession, it may be, perhaps, in trespass to try the title, prima fade enough to entitle him to recover.”
The cases of McColman v. Willies, 3 Strob. 465, and of Cleveland v. Jones, Id. 479, in note, were actions of trespass quare clausum fregit, which action is founded on the plaintiff’s possession, and will always lie when there has been a disseizin.
We conclude that in the action of trespass to try title under our statute, mere prior possession would not dispense with the necessity that the plaintiff should prove title to enable him to recover.
The act of 1791, so far as it prescribed the form of proceeding, was superseded by the code, which abolished all the different forms of action and substituted one form for all causes
This action was brought, as stated, expressly to recover the land in dispute, upon the ground that the plaintiffs had title to the same; and even if the old rule as to the necessity of proving title should now be held to be modified so as to allow a person deprived of the possession of land, under proper allegations, to recover that possession without proof of title, it can have no application to this case. Here prior possession cannot stand for title, although it is an action in the form prescribed by the code and not technically trespass to try. title under the statute. The plaintiffs staked themselves upon their title, and they must recover, if at all, upon the strength of this title.
It cannot alter the case .that the plaintiffs claim to have possession under their father by descent cast, according to the old doctrine that the “ law presumes the possession transmitted from the ancestor to the heir to be a rightful possession until the contrary is shown, and, therefore, the mere entry of him who has the right will not be allowed to evict the heir.” This has been changed by Section 110 of the code of procedure, which declares that “ the right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.”
The plaintiffs having failed to bring themselves within the exception as to a common source of title, it was incumbent on them to make proof of the title of their ancestor, which they failed to do. The proof even of the possession of Henry J. Geiger was meagre, and, therefore, as to the first legal defence, considered as separate and distinct from the second, they failed to make the proof necessary to recover the land.
Upon the view that the answer was in evidence, the admissions of the defendant did establish the fact that he entered under a purchase from Alexander Geiger, as executor of' Henry J. Geiger, the ancestor of plaintiffs, and therefore traced title to a com
1. "What interest in the land did the will give to Alexander Geiger ? A power coupled with an interest or a mere naked power to sell ?
2. Was the sale by Alexander Geiger, under the circumstances stated, an execution of the power so as to vest in the defendant a good, equitable title ?
The question as to what interest the will gave Alexander Geiger is one of intention, to be ascertained from its construction. 2 Washb. on Real Prop. 605. “ A reference to the terms of the will is the only course by which to determine whether a naked power only is intended to be given, for even if the terms made use of in creating the power, detached from other portions of the will, confer merely a naked power to sell, yet if the other provisions of the will evince a design that, at all events, the lands are to be sold in order to satisfy the whole intent of the will, it is not a naked power, but is coupled with a trust and interest.” Franklin v. Osgood, 14 Johns. 527. “ A power to sell for the payment of debts would be such a power.” Sugd. on Powers 111, note. “One test that is given in some of the cases for distinguishing a naked power from one coupled with an interest, is whether the donee of the power is to have possession of that to which the power relates. If he is, he is considered to have an interest, otherwise a mere naked power.” 2 Washb. on Real Prop. 606.
Although this testator did not use the technical terms usually employed in disposing of property in trust, yet, taking the whole will together, we think that he intended to give at least the possession of the whole of his estate, real and personal, to his brother, Alexander Geiger, in trust for the performance of the various duties imposed upon him in relation both to his property and
The second defence, if true, makes out a good, equitable de-fence. Mr. Tyler (p. 738) states that “law and equity being now blended, an equitable title arising out of a contract for the sale of land, is a defence to an action of ejectment instituted to recover possession of the land. Possession of land under a contract of sale and payment of the purchase money, is held to be a good defence to an action brought by the alienor for the possession.”
But the court having taken the view that the plaintiffs have not the right to immediate possession so as to enable them to maintain an action at law for the land, it is unnecessary to consider the question whether the alleged sale of the land to the defendant, Alexander Geiger, was a valid contract, in execution of the powers of the will. There was no evidence upon the subject except the answer of defendant, and to make any ruling upon his ex parte statement might do injustice to the plaintiffs.
The judgment of this court is that the judgment of the Circuit Court be affirmed.