14 S.C. 180 | S.C. | 1880
The opinion of the court was delivered by
This was an action for a tract of land. The plaintiff obtained judgment against one John P. Zimmerman, which was entered October 27th, 1860. Zimmerman, the defendant in execution, was then the owner of the land in dispute, but he sold and conveyed it to Theodore D. Wagner, December 31st, 1862. Wagner sold it to F. F. Warley, May 17th, 1866, who had it in possession until he died, April 16th, 1876, leaving his widow, Rowena L. Warley, executrix and
From the view which the court takes it will not be necessary to state the facts more at length. .After many delays, and the dissolution of the injunction, the land was sold by the sheriff, January 6th, 1879, under the judgment of the plaintiff, who bid it off; took sheriff’s titles, and now brings this action for its recovery. The defence is the statute of limitations. The case was heard without a jury by consent of counsel. The Circuit judge overruled the defence principally on the force of the act known as the stay law, (13 Stat. 286, 305,) suspending in certain cases the operation of the statute of limitations, and adjudged “ that the plaintiff recover of the defendants the possession of the said real property.”
The defendants excepted, and charged as error “ so much of the judgment as holds that Section 4 of the stay law of 1865 applied to the case.”
The plaintiff, content with the result of the judgment, yet, “ in case the court should come to the conclusion that there was error in so much of the Circuit opinion as is appealed from,” insists that the judgment shall be affirmed on other grounds, and among them “ that the possession of Warley cannot be connected with that of Wagner so as to make out a continuous adverse possession for the statutory period.”
We will first consider the question here raised as to the right of the defendant to unite the possessions, as it will decide the case if the conclusion should be reached that the possession of Wagner could not be united with that of Warley so as to make out ten years of adverse possession.
It seems now settled in this state that the statute of limitations runs against the lien of a judgment in favor of a purchaser from the judgment debtor without any other evidence of the adverse
The case of McRaa v. Smith has, however, been recognized in other cases, and we do not propose to disturb it. But as we think it out of harmony with those of similar character, we are not willing to extend it beyond the very point decided. There was in that case no necessity to unite possessions. There was only one continuous possession in the defendant Smith for the whole period necessary. The question now presented is, whether the principle thex’e announced requires us to go further and apply it to a case in which the bar of the statute cannot be made out against a judgment creditor without uniting the possessions of two successive occupants of the land. Can the possession of the, first occupant be added to that of the second when he is sued by the purchaser at sheriff’s sale ?
But it is suggested that these authorities only refer to cases where all the occupants, AA'hose possession it is proposed to tack, were originally nahed trespassers, and do not embrace a case where the first occupant got his possession by regular conveyance from the person having the legal title. The judgment in this case states the proposition as-folloAVS: “When the possession was originally wrongful, until it ripened into right by lapse of time or by descent cast, there was no estate, no right of property Avhich could be conveyed by deed. Consequently the purchaser from a party then in possession of lands of another acquired nothing by his deed. They were, as to the real owner, mere trespassers, who could not tack their successive trespasses together so as to defeat the right of him who had the title. * * * There is no case in this state Avhich determines that a conveyance of land by him who holds the same by a perfect title to another, to Avhom he transfers such title, accompanied with possession, breaks the continuity of such possession. On the contrary the decisions only go to this extent, that a mere trespasser, having nothing to convey, no estate in the land, cannot, by his deed, convert the entry of his successor into anything more than a naked trespass as against the rightful owner.”
The exact point here made has never, so far as we know, been decided in this state. The cases in the reports Avere actions by the real oAvners against persons claiming title by possession, but who did not connect themselves with the legal title. We have
Warley went into possession of the land still subject to the lien. The judgment creditor, who, as to the lien, was the true owner, could not enforce it against him until he went into possession, and as his deed from Wagner conveyed nothing but the legal title subject to the lien, he could not claim the benefit of adverse possession in quieting his title as against the lien until he had possession himself for the whole period of ten years.
We do not think this case should be an exception to the well established general rule that possessions cannot be united to make out the time necessary to complete the bar of the statute.
We concur with the Circuit judge that the fourth section of the act of 1865, (13 Stat. 286, 305,) suspended-the statute from running in favor of Warley during the continuance of that act. In some particulars the section is not expressed in clear technical language, but we think there is no doubt about the intention.
The judgment .below is affirmed and the appeal- dismissed.