25 S.C. 453 | S.C. | 1886
The opinion of the court was delivered by
This was an action for the recovery of a lot in the city of Columbia, described in the complaint. As well as can be collected from the brief the following outline of facts appeared: That Richard Holmes, a man of color, died in March, 1870, in possession of the said lot, where he had lived for many years. He left of force his last will and testament, by which he devised one moiety of said premises to his wife, Bella, and the other moiety in trust for his son William and his children. After his death, Bella and William remained in possession of their respective portions under the will. William died in 1878, and his wife, Amanda, and her children continued to occupy their moiety. In 1868 James D. Tradewell recovered a judgment against Richard Holmes. In 1378 one Thoroughgood Thornton recovered a judgment against James D. Tradewell, as executor of the will of Richard Holmes, and under executions issued upon these judgments the premises in question were sold by the sheriff in 1885, and bid off by the plaintiffs, who received sheriff’s titles and broughc this action to recover the lot. The defendants answered denying that Richard Holmes was ever
The cause came on for trial before Judge Hudson and a jury. Under the charge the jury found for the defendants. There were requests to charge on both sides, some of which were charged as presented, some in modified form, and some refused, as fully appears in the exceptions printed in the brief; but it will not be necessary to consider more than the 1st, 5th, 7th, and 8th, which are as follows:
1. “Because his honor, the presiding judge, erred in charging the jury: ‘If the jury believe from the evidence that Richard Holmes is the common source, and that the said Richard Holmes was a slave, and that he died on March 11, 1870, plaintiffs cannot recover unless they (the plaintiffs) have shown that the said Holmes acquired title since 1865.’
5. “Because his honor, the presiding judge, erred in refusing to charge the jury, as requested by the plaintiffs, ‘that if the jury believe from the evidence that the defendants are in possession under Richard Holmes, either as devisees or heirs at law, then the jury must find for the plaintiffs, unless the defendants have shown an independent title in themselves by connecting themselves with a grant or proving that which presumes a grant.’
7. “That ‘if the jury find the fact to be that Richard Holmes had no title to this land except the five years’ possession from 1865 to 1870, then the plaintiffs acquired nothing by the sheriff’s deed, and had no right to recover against the defendants.’
8. “That ‘a naked trespass can neither be cast by descent, nor devised by will, nor acquired by levy and sale under judgment against the trespassers.’ ”
It will be seen that the leading idea of the charge was, that
There is no doubt as to the general rule that in an action for land the plaintiff must recover upon the strength of his own title and not the weakness of his adversary’s. But there are exceptions, cases in which the plaintiff is not required to trace his title back to a grant. One class of these is where both parties claim from the same source of title; in which, as we understand it, the fact that the plaintiff has traced his title back to a source from which the defendant also claims stands in the place of further proof of title, at least prima facie. We do not know that the rule is anywhere better stated than by Judge Withers in the case of Pyles v. Reese, 4 Rich., 558: “But the obligation is not without exception. Where the parties litigant derive title from the same source, no end of justice is to be attained by tracing beyond. Hence as between lessor and lessee the rule is universal ; the latter having gained possession by his acknowledgment is estopped from his denial of the title under which he entered. How stands the case when one enters as a purchaser under the title of another, and a contest subsequently arises between the vendor and vendee ? * * * Under the authority of adjudged cases we are of opinion a plaintiff is never compelled to go further back than the source whence the parties before the
According to this clear judgment, if we consider the defendants as purchasers for value from Richard Holmes, they could not put the plaintiffs to proof of the title of the said Richard; and, surely, they have no higher rights, as mere volunteers, devisees, who have no estate until the debts of the ancestor are paid, and as privies are bound by his sale either made by himself or through the sheriff. We do not understand that this conclusion rests upon the technical doctrine of estoppel, for the defendants are allowed, if they can, to prove an independent title in themselves; but it is simply the logical result of the defendants’ claiming under the same title with that of the plaintiffs, considered in the light of the principle that one is held to admit the title under which he enters. If in such case the plaintiffs were still required to prove title in the common source, we are unable to see why the rule was ever adopted. It would certainly be without force or purpose. As it strikes us, the very object of the rule was to dispense with proof of title in the common-source, or further proof, substituting therefor the admission of the defendant involved in his entering under that title. As was said by the chief justice in' the late case of Smythe v. Tolbert, 22 S. C., 137: “If .the parties do not claim through a common source, then the plaintiff must recover upon the strength of his own title, &c. If they do, then plaintiff may stop in the first instance at the title of the common grantor,” &c.
Besides it happens that in this case there is another principle, growing out of the force and effect of a sale under execution, which fortifies this view. These plaintiffs purchased the lot in
But it is insisted that the defendants had the right to show that Holmes had no title — that being nominally a slave down to emancipation in 1865, he could not by possession or otherwise acquire legal title to the lot, although he had lived upon it, using it as his own for over forty- years, and that his possession after he became a freeman, five years before his death, could not alone give title by adverse possession ; and therefore being a mere trespasser he had no interest that could be levied and sold under judgment against him, and that it is absurd to say that something could come out of nothing — ex nihilo nihil fit. This at first view seems plausible, but we have already endeavored to show that as against the defendants the plaintiffs’ case as to title in the common source must be assumed, at least prima facie ; that is to say, as to Holmes’s title it was not incumbent on the plaintiffs to
But even if the title of Holmes were a matter open for opposition on the part of the defendants, we cannot agree that it was shown that he was a mere trespasser and that nothing passed under the execution sale to the plaintiffs. Holmes, the defendant in execution, had all the presumptions arising out of an undisturbed possession for more than forty years. If a trespasser, it did not appear upon whom he trespassed. During five years of the time of his possession he was a free man and capable of acquiring property in any of the ways allowed by law ; and of the parties before the court, who had the right to say that during that time he did not acquire title to the lot ? As we have seen, the defendants, having entered under his title, had not such right.
It is, however, finally contended that the defendants had the right to repudiate the devises and hold on their own independent possession — relying upon the maxim melior est conditio possiden-tis — until perfect legal title was shown. Richard Holmes was a freeman when he made his will, which was legal and binding. The mother and son, named as devisees, manifestly accepted it, for they divided and occupied the different portions of the lot precisely as the will directed. It seems to us that having accepted the will and entered into possession under it, they cannot now, in order to evade paying the debts of the testator, disconnect themselves entirely from him, and, while enjoying his patrimony, disclaim that they received and held it under his will. Such a license would certainly unsettle the rights of parties and tend to defeat the object of the rule as to tracing title to a common source. We think it was error in the judge below to refuse to charge as requested: “That if the jury believe from the evidence that defendants are in possession under Richard Holmes, either as devisees or heirs at law, then the jury must find for the plaintiffs, unless the defendants have shown an independent title in themselves by connecting themselves with a grant or proving that which presumes a grant.”