40 S.E. 168 | S.C. | 1901
December 9, 1901. The opinion of the Court was delivered by This is an appeal from a judgment on verdict in favor of plaintiff in an action to recover the possession of real estate. *194
The first exception alleges error in permitting Surveyor Haynesworth to prove the plat and survey made by him when, as alleged, it appeared that the survey was made without notice to the defendant or his attorneys. This exception was doubtless taken under a misapprehension, as the "Case" shows that ten days notice of the survey was served on defendant's attorneys. Under section 417 of the Civil Code, service of such notice after the commencement of the action was properly made upon the attorney.
The second exception assigns error in permitting plaintiff to introduce in evidence a deed purporting to be executed by Thomas E. Richardson and others to F. Kolb on proof of its execution by Thomas E. Richardson alone. It was competent to introduce the deed on the proof made, certainly in so far as it was sought to affect the interest owned by Richardson. Harrelson v. Sarvis,
The third, fourth and eight exceptions charge error in the refusal of defendant's motion for nonsuit. In reference to these exceptions it will be sufficient to say that there was some evidence tending to show that plaintiff took possession of the land, having purchased it from W. E. Richardson in 1867, and that he continued to use the same and pay taxes thereon, claiming it as his own, down to 1892, the time of the trespasses complained of, a period of more than twenty years. It was proper to refuse nonsuit.Busby v. R.R. Co.,
The fifth exception complains of error in the following charge to the jury: "That if the jury find that the plaintiff entered into possession of the land in dispute, under the paper introduced in evidence as exhibit A, purporting to be signed by W.E. Richardson under a claim of *195 ownership, and if they find that he has personally or by his tenants continued in possession thereof for more than twenty years, then the jury must find he is presumed to have attained a grant from the State." The error specified in the exception is that such charge ignored the necessity of anadverse holding for the period named. The exception, we think, is not well taken, since a holding under a claim of ownership is an adverse holding.
The sixth exception imputes error in the following charge to the jury: "That if the jury find from the evidence that the plaintiff has been in open and notorious adverse possession of the premises in dispute for more than ten years before the alleged entries thereon by the defendant then the jury are instructed to find for the plaintiff, unless the defendant has shown that subsequent to such period, he or his landlord has likewise held and possessed the premises in the same manner for a like period of ten years, or unless the defendant has shown a deed from the plaintiff." It is alleged that such charge was erroneous for the reason that ten years adverse possession alone without proving the equivalent to a grant, or that the State is not claiming the land in dispute, is insufficient to make a perfect title. This exception must be sustained. The case of Busby v. RailroadCo.,
This conclusion renders it unnecessary to consider the remaining exceptions, which impute error in the refusal of the motion for a new trial.
The judgment of the Circuit Court is reversed and the case remanded for a new trial.