53 S.C. 24 | S.C. | 1898
The opinion of the Court was delivered by
This is an action to recover real estate, and the appeal is from a judgment in favor of the defendants. The evidence tended to show that the parties claimed from a common source, Wm. N. Gardner, the husband of the defendant, Elizabeth Gardner. Plaintiff’s claim of title was (1) deed by John R. Thames and A. L. Thames to Wm. Gardner, dated November 21,1838, recorded March 29th, 1876; (2) deed of Wm. N. Gardner to the plaintiff, Moses Levi, dated March 4,1876, recorded March 20,1876,
The defendant offered in evidence: (1) Judgment and execution against Wra, N. Gardner, in the case of Mayrant and Richardson v. Win. N. Gardner, obtained in 1850. Sale of the land under execution in July, 1850, and payment of the bid by the purchaser, J. R. Felder; but no deed from the sheriff to Felder was introduced or shown to have been executed or recorded. (2) Deed from J. R. Felder, the purchaser at said sale by the sheriff, to John J. Ragin, dated January 31st, 1853, recorded December 15th, 1853. (3) Deed from John J. Ragin to John M. Rowe, in trust, dated January 8th, 1863, recorded June 13th, 1863, the trust being declared in the deed as follows: “In trust for the joint use and benefit of the said William N. Gardner and his wife, Elizabeth, during their natural lives, and at their death to such child or children as they may have surviving, &c.”
Felder procured the sheriff to make him a deed to the land in dispute, the defendants here cannot set up that title as against the plaintiff, unless it be recorded, or unless the plaintiff had actual notice that such title had been made; the recording of the Rowe and Ragin deeds would not supply this defect and give the notice required;’ whereas, it is respectfully submitted, his Honor should have granted such charge as the law applicable to this case; and his Honor further erred in holding that said request embraced statements of fact, and in declining to charge the same on that ground, when the same did not contain state