44 S.C. 548 | S.C. | 1895
The opinion of the court was delivered by
This is an action for the recovery of a certain lot of land in the city of Columbia. The complaint alleged that Mamie Scates was the owner of the land at the time of her death, and that, upon her death, the plaintiffs became the owners thereof by reason of being her heirs at law. The complaint also alleged that the defendant was in possession, and that the title by which the plaintiffs and defendant claimed the land had a common source, to wit: the said Mamie Scates. The answer of the defendant admitted possession, but denied the other allegations of the complaint, including the allegation that plaintiffs and defendant claimed from a common source.
The following statement appears in the “Case:” “Upon the close of plaintiffs’ testimony, defendant’s attorneys moved for a nonsuit, upon the ground that plaintiffs had failed to mate
The appellants’, first and second exceptions are as follows: “I. Because his honor overruled defendant’s motion for a non-suit, and thereby committed error of law in so doing. II. Because his honor erred in ruling that there was any evidence upon plaintiffs’ testimony and the pleadings to support the allegation of the complaint that plaintiffs and defendant claimed from a common source of title.”
The plaintiffs offered in evidence: 1. Deed of John Agnew to Mamie Scates, dated 13th May, 1884, conveying three-fourths of an acre, and bounded as follows: “On the north by Plain street, on the east by lot of John Agnew, south and west by lands now or formerly of Killian & Fry, the same being a portion of an acre of land formerly belonging to Israel Smith, and conveyed to me by N. B. Barnwell, master, in proceeding in foreclosure, bearing date 4th November, 1880, and recorded in the office of the register of mesne conveyances,” &e. 2. Deed
Below will be found a diagram showing the'different parcels of land described in the testimony of plaintiff’s witnesses:
It appears that in the foreclosure proceedings mentioned above, the decree provided that, the lot containing one acre should be divided and sold in two parcels. This was done, and both bought by John Agnew, the mortgagee. One of these lots, containing one-quarter of an acre, and represented on the diagram as lot No. 4, was correctly described in the master’s deed as hereinbefore mentioned. The other lot, containing three-quarters of an acre, is described in the master’s deed as hereinbefore mentioned, and gives .the eastern boundary as a lot of Charles H. Coleman. A portion of the land in the said lot of three-quarters of an acre was possessed by Charles H. Coleman at the time the master made the said deed, but did not form the eastern boundary of the lot mentioned in the deed. There was testimony to the eifect that the land in dispute was in the possession of Killian & Fry from 1851 until 1872, when
When, as in this case, words descriptive of the locus in quo are, in the main, applicable to either of the two parcels of land and issue is joined as to the location, this raises a question of facts to be determined by the j ury. To correct an error of this kind does not require that resort should be had to a Court of Equity. The rule for determining the location of the land is clearly expressed in 2 Am. & Eng. Enc. L., 497, as follows: “In the endeavor to ascertain the limits or boundary of the land which the grantor intended to convey, the courts will ascertain, if possible, all the circumstances surrounding and connected with the parties and the land at the time of the conveyance, since parties are presumed to refer to the condition of the land at that time, and the meaning of the terms used in the description can only be ascertained by a knowledge of the
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.