McGowan v. Reid

33 S.C. 169 | S.C. | 1890

The opinion of the court was delivered by

Mu. Chiee Justice SimpsoN.

William McGowan, late of the County of Laurens, died in 1869. He left a will and a widow and four children, a daughter and three sons, to wit, Mrs. E. Strain, John T., David R., and William McGowan. He devised bis real estate to his widow for life, with remainder to his children. John T. was appointed his executoi’, and qualified. After the death of the widow, Mrs. Strain and her husband instituted an action against John T., as executor and individually, and the other devisees, for a settlement of the estate, and for the partition of the real estate. This ivas in 1878. After some litigation, this action resulted in having set apart to Mrs. Strain a certain portion of said real estate as her share therein, the remainder, some two hundred and forty-five acres thereof, being left for John T. and David R. (the plaintiff herein).; the other son, William, having died in the meantime, intestate and unmarried.

This action seems at this point to have been dropped from the calendar, but in 1887 it was restored for the purpose, as it appears, of having a partition made between John T. and David R. of the two hundred and forty-five acres. It was then referred to a referee, who reported, recommending a division of said land between these two brothers. This recommendation was afterwards confirmed by his honor, Judge Wallace, who ordered a writ in partition to issue. The commissioners under this writ returned their action in 1888, whereby they had divided the land, setting off to David R. ninety-eight and seven eighth acres by metes and bounds. This return was afterwards confirmed by his honor, Judge Witherspoon, in July, 1888. During all of this proceeding, John T. McGowan set up no claim to the share of David; on the contrary, he acquiesced in the partition without claim, protest, or appeal. In the meantime, however, to wit, in 1881, he, being in debt to the defendant, executed a mortgage, covering this entire land, to secure the said debt, upon which Reed obtained, foreclosure in 1887, and at the sale in December, 1887, he, Reid, became the purchaser. No Us pendens had been filed in the partition proceedings, but on the day of the foreclosure sale by the master, David R. gave public notice of his claim. Reid, immediately after his purchase, went into possession, inducing the tenants of David to pay the rent to him.-

Under this state of facts, the action below was commenced by the plaintiff, who, alleging the facts substantially as hereinabove, demanded judgment: 1st. That defendant account to him for the rents and profits. 2nd. That the partition and division heretofore made be confirmed, and failing in this, that said premises be partitioned between him and the defendant. And 3rd. That he have his costs and such other and further relief, &c , &c. The defendant, Reid, answered, denying knowledge of many of the facts alleged in the complaint, and pleading luches and the statute of limitations, and alleging that he purchased the property at the foreclosure sale under the mortgage executed to him by John T. McGowan for two thousand dollars, John T. having been in the open and notorious possession of the land for more than fifteen years, and he demanded a dismissal of the complaint.

The case was heard by his honor, Judge Izlar, a jury trial having been waived. At the conclusion of plaintiff’s testimony, the defendant moved for a non-suit, on the ground that, it not appearing that the parties claimed from a common source, the plaintiff was bound to make out a perfect title in himself, which not having been done, a non-suit should be ordered. His honor, in reply, stated there was testimony that Reid bought at the master’s sale the interest of John T. McGowan in the land, and also that John T. claimed through his father’s will, and that this made out a common source. This ruling of his honor is the foundation of defendant’s first exception. We think his honor was correct, and, therefore, this exception is overruled. It appeared in plaintiff’s testimony, that the entire land originally belonged to William McGowan, and that if John T. had any title, it came from his father. Reid claimed through John T., and consequently claimed through William. David also claimed through William ; hence the common source.

His honor held the title of the plaintiff to be good as against the defendant, ruling that there had been no ouster, and that there was no room for the application of either laches or the statute of limitations, and adjudged possession of the land in dispute to the plaintiff'. This was decreed principally upon the record evidence, furnished by the actions of Mrs. Strain, above referred to, in which the several orders mentioned, as to the partition of the land between John T. and David R., were taken, without objection on the part of John T. Certainly, if this was a contest between John T. and David, John T. could not, in the face of these proceedings, contest David’s title. Does not the defendant stand in the shoes of John T. ? True, there was no lis pendens filed, but the defendant bought with full notice of David’s claim, and there was no evidence of fraud or conspiracy between the brothers. We think the facts of the case, as developed by the testimony, required his honor, as matter of law, to decree the land to the plaintiff, the land thus decreed and ordered to be delivered up to the plaintiff being the ninety-eight and seven-eighth acres set off to the plaintiff in the said partition proceedings, which he confirmed. This disposes of the defendant’s exceptions.

The plaintiff appealed because his honor failed to decree rents and profits to him. The decree below is silent upon that subject. Why, we do not know. This case involves the features of both an action- at law and an equitable action. In so far as io was sought to recover the land in dispute, it was an action at law, and although it was tried by the judge, a jury trial being waived, yet it was still a law case, and must be governed by the rules applicable to such cases, one of which is, that the facts cannot be reviewed on appeal. Now, it may be that the trial judge regarded the rents and profits as involved in the action at law, and not finding sufficient evidence in the case to authorize him to decree rents and profits, put the question aside; we can’t say. At all events, we do not think that that matter can be reviewed here; we therefore pass it by, affirming the judgment below, without prejudice to the plaintiff as to any future effort to recover said rents if so advised, and simply stating that we think it was error in the trial judge not to decree thereon.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed, on the grounds and conditions hereinabove. Let the case be remanded, so that plaintiff may have an opportunity to raise the question as to his rights to rents and profits, if so advised.