3 S.C. 254 | S.C. | 1872
The opinion of the Court was delivered by
The action was trespass to try title, A verdict was rendered by the jury in favor of the defendant, and, on the motion of the plaintiffs, an order for new trial was granted by the Circuit Judges, which the appeal to this Court seeks to set aside.
The Judge, in his charge, instructed the jury to find for the plaintiffs. This direction they disregarded, and returned a verdict for the defendant.
The only question proper for our consideration, is whether there was error of law in the order granting the new trial. If it was founded, either wholly or in part, on a conclusion from the fact contrary to that of the jury, then, according to the well established principles governing the Court in regard to appeals, in which propositions of law do not arise, we cannot interfere.—Miller vs. Schuyler, 20 N. Y., 522 ; Byrd, et al. vs. Small, 2 S. C., 388. The defense involved two positions, and if either was sustained, it was sufficient to prevent a recovery by the plaintiffs : First, a seizure in fee in the defendant, by a regular chain of title not developed on the trial, but to be presumed from circumstances in testimony as a question of fact; and, second, the presumption of whatever may be necessary to confer a good and perfect title from an adverse possession of twenty years. While the conclusion raised by the presumption in the first instance may be rebutted by evidence, that which the law makes from long possession has acquired an artificial force so strong, that it must prevail to induce belief, though such, belief may not be the result of actual conviction.
We are obliged to infer that the jury either regarded the circumstances proved as sufficient to satisfy them of the execution of the proper deed and power from Hooper and his wife, or supposing that full twenty years had elapsed from the commencement of
As this ruling of the Judge forms a ground of exception, on the part of the defendant, and is so much relied on in favor of the motion he submits, it is proper that it should not be passed over without examination. As the question is purely one of law, for the purpose of the argument we will assume that Adams, the defendant, and those under whom he claims, had possession for full twenty years, before action brought. If the appellant can sustain the position .that the presumption of title from possession is sufficient to avail against minors, claiming the land in their own right, and that the disability of infancy cannot protect them against such presumption, then there was error in law, on the part of the Judge.
Upon what rests the presumption of right from long possession ? It is, that the occupancy was adverse, and the forbearance of those having the legal power to interfere, is claimed as a recognition of the title presumed to have been conferred through a deed from the ¡mrty last seized. An infant, however, is regarded in law as incapable of knowing or enforcing his rights. The consent or acquiescence which, in the case of an adult, may be considered as contributing to deprive him of his rights, can never be urged against an infant. To say, then, that, by not asserting his claim, he is barred by a presumption which rests on a supposed consent, is to impugn the very principle on which the disability of infancy is founded.
The cases which, in the argument, were referred to from our books, where the presumption was allowed, although the party last seized left infant children, made no issue between such children and third persons; the Court properly held that the presumption in favor of the claimant could not be resisted by the disability which might protect the infants if they were before it. In Gray vs. Bates, 3 Strob., 502, one of the cases, O’Neall, J., delivering the opinion of the Court, says: “ With this presumption, Milledge, the infant, has nothing to do. It takes nothing from him ; it operates against Jackson, who was last seized of the land in dispute. It is very true that if lapse of time be set up against an infant, it cannot have any effect until he be of full ageand in the other, Stockdale vs. Young, Colcock, J., says : “ It is only necessary to remark that the fact of the grantees having left a son, who died in 1792, leaving twm infant children, could not affect the possession, as they neither entered nor
The proposition contended for by the appellant has been decided both in the Courts of Law and Equity of this State to be without foundation.
It was held in Riddlehoover et al. vs. Kinard, 1 Hill. Ch., 378, that the possession of property for twenty years confers title as against all persons who were not under legal disabilities, and after that period a Court will presume whatever may be necessary to give efficacy to the possession. In Gray vs. Givens, 2 Hill. Ch., 514, Judge Harper, as the organ of the Court, said : “ I think it has not before been questioned, but that the time during which the party to be affected has been under a disability must be deducted in computing the lapse of time in analogy to the Statute of Limitations.” The same principle was recognized in Godfrey vs. Schmidt, et al , Chev. Eq., 57. The Court in Larule vs. Crosland, 4 Rich., 540, applying the rules which had governed the cases herein already cited, held “ that where a party claims a right to an easement through another’s land by adverse use for twenty years, and during a part of the time, though after the commencement of the adverse use, the land was owned by infants, that period must be deducted in the computation of the time, and if twenty years do not remain, the right is not established.”
These authorities are sufficient to shew that the appellant has failed to establish error in law in the instruction of the Court in the particular referred to. Concluding, therefore, that no error of law is contained in the order, but that it involves a difference of opinion between the Judge and the jury on the facts, and the results legitimately deducible from them, we are not at liberty to interfere.
According to the stipulation on the part of the appellant, if the order be affirmed, the plaintiffs are entitled to judgment absolute against him, and the second sub-division of Sec. 11 of the Code of Procedure, Revised Stat., 517, requires that such judgment shall be rendered.
It is accordingly ordered and adjudged that the motion be dismissed, and that the plaintiffs in the said cause have judgment absolute against the defendant, and that the proceedings be remitted