40 S.C. 168 | S.C. | 1893
Lead Opinion
The opinion of the court was delivered by
Under the will of Thomas Wadsworth, who died in 1791, while a citizen of Charleston, in this State, certain lands within the limits of this commonwealth were devised to trustees to maintain and support a free school for poor children residing within the limits of Major Dunlap’s Battalion of the Saluda Regiment within Laurens County. The General Assembly of this State, appreciating the spirit of this devisor, and the better to protect these lands from the rapacity and cupidity of those persons who would likely seek an advantage of the trustees under this will, passed an act, on the 14th day of December, 1805, whereby these lands were relieved from the operation of the act of limitation. See 5 Stat., 496. Again, at the request of the trustees under the will of Mr. Wadsworth, the General Assembly, on the 20th day of December, 1810, passed an act whereby these trustees and their successors in office were incorporated by the name of the “Trustees of the
This corporation thus created, on the loth day of April, 1818, leased 330 acres of the land devised under the will of Thomas Wadsworth unto one Thomas G. Walker, for the term of seventy-five years, the same beginning on the 12th day of December, 1815, and ending on the 12th day of December, 1890. This lease was for valuable consideration, and was by a deed therefor, which deed of lease was duly recorded in the office of the register of mesne conveyance for Greenville District (now county), where the said leased land was situated. This lease was by Thomas G. Walker assigned to one David McNeely on the 19th October, 1821, and David McNeely assigned the same toone John P. Pool on the 15th day of February, 1847. Afterwards John P. Pool, by his deed therefor, conveyed 100 acres in fee simple, as it is agreed by the parties to this appeal, to Fagin E. Martin, but in the deed itself recited all the foregoing facts, and this deed was duly recorded in the office of the register of mesne conveyance on 30th January, 1850. IJnder a judgment against Fagin E. Martin, this land was sold as Martin’s property, 6th January, 1857, by the sheriff of Greenville District to Charles J. Elford. After Mr. Elford’s death, and in the settlement of his estate, this land was sold and conveyed by the commissioner in equity to Beeco on the 7th October, 1867. Beeco sold and conveyed to Choice, January 21st, 1876. Choice sold and conveyed to Davis, January 21st, 1876. Davis sold and conveyed to Kennemore and Tate, December 4th, 1879. Kennemore purchased by deed therefor Tate’s interest. Kennemore sold and conveyed a part of the land to McGee, 1st January, 1891. McGee sold his part by deed therefor to L. I. Jennings, on 23d February, 1891. Kennemore sold his part by deed to L. I. Jennings, on 23d February, 1891. All these several deeds were duly recorded in the office of the register of mesne conveyance for Greenville County.
On the 25th day of April, 1892, in the Court of Common Pleas for Greenville County, the plaintiff, the trustees of the Wadsworthville Poor School, brought an action against the defendant, L. I. Jennings, to recover 621- acres of the land, and
On the 3d day of December, 1892, the action came on for trial before Judge Aldrich and a jury, in the Court of Common Pleas at Greenville, when a verdict was rendered for the defendant. After a verdict had been found for defendant, plaintiff moved for a new trial upon the minutes. This motion being denied, a judgment was duly entered, from which the plaintiff now appeals upon the following grounds:
1. Because the presiding judge erred in instructing the jury: “That if one or more of these purchasers from Walker took a fee simple deed and went into possession of it, claiming that he had the entire and exclusive right to that land, went into it and took possession of it under such deed, and make it known, or this fact became known, to the trustees, the plaintiff here, then their title by adverse possession began to run;” whereas, he should have charged, as argued by the plaintiff, (a) That neither Walker, nor any one claiming through him, could plead adverse possession during the term of the afore
2. Because his honor erred in instructing the jury: “If the plaintiffs had notice of it, that there was somebody in possession of their lands, claiming it as his own, they had a right to bring their action against him as trespasser, and if they had a right to sue him and he was not sued, and they allowed him to stay there for forty years, that trespass would ripen into a good title.” Because (a) plaintiff could not bring action of ejectment until the termination of the said lease, (b) If plaintiff had had such cause of action, that would not convert the holding of the party in possession under that lease from permissive to adverse, (c) There could be no such adverse holding of these lands as could ripen into title, (d) Walker and all claiming through him were estopped from disputing plaintiff’s title.
3. Because his honor erred in charging the jury: “Did Jennings, or any one of his ancestors, go in there and take possession under that title, and was that fact known to the trustees? If the trustees knew that such a party was in possession of that land claiming a title adverse to them, they should have acted, and if they stood by for twenty or forty years, they slept on their rights.” Because (a) the said law was wholly inapplicable to the facts proven in this case, inasmuch as there was no proof whatever, either on the part of plaintiff or defendant, that the plaintiff knew at any time that there was any person in possession of these lands holding adverse to them. (&) They were not estopped from suing for the said lands at any time.
5. His honor erred in instructing the jury as law applicable to this case: “If one goes into possession of land under color of title, or acquires possession of land, and holds it for twenty years, or when a man has possession of lands, and holds it for four or five years, and he convej^s it to another, who holds it under his title, and so on for twenty years, and you establish a continuous holding for twenty years, if that possession and title was continuous and adverse, as it states here, for the period of forty years or twenty years, that would presume a grant;” because (a) there was no room for any such presumptions in this case.
6. Because the charge of his honor was not only erroneous, but conflicting, confusing, and misleading, inasmuch as he instructed the jury in one portion of his charge, that a tenant would have to yield to his landlord the possession of his lands before he could hold adverse to him, and after having charged that those taking under Walker took subject to his rights and disabilities, in a subsequent portion thereof he charged that if Jennings or any of his ancestors went into possession of that land under fee simple deed, or held it adversely, and the plaintiff knew of that fact, the statute would begin to run against the plaintiff.
7. Because the Circuit Judge erred in refusing plaintiff’s motion for a new trial, as the verdict of the jury was without a jot or tittle of evidence to support it.
We have devoted unusual care to the investigation of the principles of the law of real property in this State, for the discussion of the several questions by the respective parties to this appeal have made such a course on our part necessary by reason of the ability and research of counsel here engaged. Time will not allow us to reproduce the law which was consulted in such investigation in this opinion. To admit that, at times, we were doubtful whether the Circuit Judge had not erred in some of his instructions to the jury, we freely admit. A careful comparison of the views of the Circuit Judge with those embodied in the judgments of our own court of last resort in previous similar cases have enabled us to reach a conclusion in accord with that expressed by the Circuit Judge.
In the case at bar, the lease expresses no covenants by the lessee. The single covenant is by the plaintiff corporation, whereby possession of the leased premises to Walker, his executors and assigns, is warranted during the term. There is no restriction upon Walker, the original lessee, to assign or sublet the term. Accordingly he does assign the lease, and by successive assignments, duly made, the lease vests in John P. Pool. By the Case, it is agreed that Pool, by deed in fee simple, conveyed this leased land to one Fagin E. Martin in the year 1850, and that such deed was duly recorded in the office of the register of mese conveyance for Greenville County (then district), and that the said Martin entered into possession under such deed. We would remark, in passing, that we do not mean to commit ourselves to the construction of this deed as amounting to one in fee simple; for of this we may doubt whether, in strictness of law, in view of its terms, anything more than an assignment of the original lease was contemplated or expressed by the parties. The parties to the appeal, however, have stipulated that the terms of this deed were those usual in one conveying an estate in fee simple, and we suppose we are bound to give effect to their agreements, and this we the more readily do inasmuch as the entire deed is not exhibited in the case. In 1857, C. J. Elford, at sheriff’s sale, purchased Martin’s entire estate in the land. His deed therefor was duly recorded. Elford that year, 1857, conveyed to one Thomas H. Cole as in fee simple. This deed was duly recorded. Said Cole reconveyed to Elford by deed in fee simple in 1867, which deed was duly recorded. Elford having died in the year 1867, the Court of Equity, under a bill filed by his widow and executrix, as complainant, against his heirs at law and creditors, as defendants, sold the lands, and a deed in the form of a fee simple deed was made to the purchaser, one Miles E. Beeco, for this land, which deed was duly recorded. Beeco entered into possession under his deed. And so deeds in fee simple were made from purchaser to purchaser, successively, until title rested in the present defendant. Val
It is contended by the appellant, that inasmuch as he has traced title to himself, and thereafter, by lease, the possession of the lands to one Walker, whose assignment was traced as far and into one John P. Pool, that although Pool conveyed by a deed in fee simple to one Fagan B. Martin (from whom such possession was derived by others, successively, by deeds in fee simple down to the defendant), that the possession of defendant is plaintiff’s possession, and he is entitled to recover, the lease having expired before action brought. To establish this proposition, he maintains most earnestly, that, as by the terms of the original lease, Walker was allowed to assign his term, and did actually do so, that such assignee was by operation Of law bound to hold possession for the original landlord. Such does seem to be the law governing leasehold estates. This distinction exists between a subletting and an assignment of the lease: If a lessee sublets, his tenant is bound to his lessor, bub if a lessee assigns the lease, then the original lessee is evolved, and the relation of landlord and tenant subsists between the owner as landlord and the assignee as lessee, subject to all the provisions of the original lease.
By an examination of the lease in the case at bar, it will be found that no covenant is expressed, that possession will be surrendered by the lessee or his assignee to the landlord at the expiration of the lease, to wit, on the 12th day of December, 1890. On investigation, we find that it is an open question in this country, whether a covenant running with the land, to surrender the demised land at the end of the term in the hands of an assignee, when the lease contains no such covenant, is implied by law. So it was held in Massachusetts (Sargent v. Smith, 12 Gray, 428), though an English case holds directly, that such a covenant is not implied by law. Doe v. Seaton, 2 Cromp. M. & R., 730. Still, it is settled law, that at the expiration of the term the landlord may regain possession of his lands on demand if he can, by suit if he must. Hence, it would seem that the appellant can maintain this proposition. The authorities directly hold that a lessee can legally only assign
Nor do we perceive any difficulty to the plaintiff corporation by the purchase by Elford, at sheriff’s sale, of Fagan E. Martin’s interest in the land, for unquestionably if Martin, as assignee of the lease, held the lands in question as a tenant to the original landlord (the plaintiff corporation), the sheriff could only legally convey such an estate as was in Martin, and Elford would, by his purchase, assume all the relations to the landlord, with all their legal consequences, and is estopped from denying the tenancy. Willison v. Watkins, 3 Peters, 50.
With all these concessions, however, the appellant does not find his way clear to a recovery, for such provisions only apply
Under the view we take of the law of this State governing cases of the character of that at bar, we are not left to deal with all these refinements of the law; for we take it that it is now fully established that wherever the relation of landlord and tenant is terminated by any hostile act, such as the conveyance of the lands demised to the tenant for years, during such term, to another in fee simple, it becomes the bounden duty of the landlord to protect his title by regaining possession;
The court of last resort in this State, in an action wherein the present plaintiff corporation was plaintiff (The Trustees of the Wadsworthville Poor School v. Meetze, 4 Rich., 50], held that the deed of Rail, the lessee of plaintiff, whereby he conveyed the land demised to him unto Meetze by a fee simple deed, was a disclaimer of Rail’s tenancy, and the plaintiff might have sued without notice to quit and before the termination of the lease; but in the case cited Meetze failed in his defence, because the twenty years had not elapsed since the making of the deed from Rail to him. The doctrine of presumption of title arising from great lapse of time, twenty years or more, has been recognized and enforced in this State for many years and in many cases. McClure v. Hill, 2 Mill Con. R., 425; Smith v. Asbell, 2 Strob., 141; McLeod v. (Rogers & Gardner, 2 Rich., 22; Trustees of Wadsworthville Poor School v. McCully, 11 Rich., 429; Thompson v. Brannon, 14 S. C., 552. In the case in 11 Rich., 429, Judge Wardlaw, in delivering the opinion of the court, amongst other things, said: “The presumption is founded upon the supposed acquiescence of the person shown to have been the former owner, and infers such transfer of his rightas legalized theenjoyment.” But it is apprehended that the presumption need not necessarily be founded upon the supposed acquiescence of the person .shown to have been the former owner; it may be bottomed upon the
It may be well to notice the distinction as to the extent and effect of this presumption, as drawn by Judge Wardlaw in the case in 11 Rich., 429, and that on the same subject by Judge Evans in Smith v. Asbell, 2 Strob., 146. Judge Wardlaw seems to give force to the presumption as one of fact, that, by operation of law, has acquired such an artificial force that the jury may be instructed to allow it a controlling influence. His words in this connection are: ‘ ‘The presumption of title arising from long continued possession, unquestioned and unexplained, was not held to be a presumption juris el de jure, irrebutable, such as the court might make, nor even one that the jury were bound to make without regard to the circumstances which contradicted it; but it was considered a presumption of fact, to which an artificial force is ascribed by the law, and which the jury were recommended to make, not because they believed the fact, but because it is wise and expedient to respect what is consecrated by time, and to give the same measure to all in the same condition, by giving effect to the fixed period of twenty years as a rule, instead of producing the uncertainty and inequality which must result from the various impressions which circumstantial evidence makes upon various minds. See McClure v. Hill, 2 Mills, 425; 12 Ves., 266. This presumption is like the presumption of the payment of a bond after twenty years unexplained, and like the presumption of right that arises from the enjoyment of an easement for twenty years.”
Judge Evans, in the case cited from 2 Strob., 146, said: “In the elementary books (see Stark. Evid., pt. 4,1240), presumptions are said to be of three kinds: First. Presumptions of law, which correspond with the presumptio juris el de jure of the civilians. These are conclusive, and cannot be rebutted. Second. Presumptions of law and fact. These are like the presumptio juris of the civil law. Of these, the presumption of payment of a bond or of a grant after twenty years, is an illustration. The third kind are presumptions of fact, and are mere inferences calculated to produce belief, and have no legal efficacy beyond their tendency to satisfy the mind of the truth of
The distinction between the views of these two judges, both eminent and safe advisers, seems to us to consist in this — that Judge Wardlaw seems to leave it as a fact to be treated of by the jury as they may deem best; or, in other words, that the jury are at liberty to disregard it in making up their verdict. Not so with Judge Evans; for if the presumption is not rebutted by proof of facts that negatives its existence, the jury must accept it as conclusive in an issue of title. It seems to us the views of Judge Evans are more consistent than those of Judge Ward-law, for if the presumption arises from possession for twenty years, which is adverse, open, and continuous during those years, and which presumption is not rebutted by proof of any facts, it should be regarded as a rule of law, and not, therefore, to be disregarded by the jury. By this course the same measure is meted out to all alike.
The propriety of such a rule is very well set forth in the opinion of Mr. Justice Baldwin in Willison v. Watkins, 3 Peters, 52-53, who — having referred to the cases of mortgagor retaining possession after breach of condition, the cases of tenants in common, where one tenant, whose possession was for all other tenants in common, denies the tenure, ousts the other tenants, and receives all the rents and profits to his own exclusive use,
Before going further, it may be well to recur a moment to the proposition of law regulating the force and effect of presumptions ; for in that connection we remarked that they were rebuttable by proof of facts inconsistent with such presumptions. We mean that, if, when such a presumption is relied upon, it is proved that during the pendency of the lease, and during the period of time claimed to raise the presumption, any admission of title in the landlord, such as the payment of rent, or like circumstance, can be proved, it will rebut such presumption — any proof, in fact, that negatives the adverse holding and its continuity, will defeat the presumption.
As before remarked, the legislature of this State has prevented any plea of the statute of limitations to defeat the plaintiff-corporation’s rights in these Wadsworth lands, but by two decisions of the court of last resort in this State, and to both of which actions this plaintiff-corporation was party plaintiff (we refer to Trustees of Wadsworthville Poor School v.
Again, it has seemed to us that the character of this adverse holding, originating in the possession of the premises under a deed purporting to convey these premises in fee simple, and promptly placed upon record in the office of the register of mesne conveyance in the proper county more than forty years before this action was brought, is entitled to great weight, not such as obtains from a matter of record, as it is known in the law. The registry of deeds does not rank in this way ; for only judgments of courts of record when entered upon the records of such courts can claim this distinction, but we mean that notice is given by recording in the office of the registry of mesne conveyance, and especially the deed from a vendor to a vendee. By a deed of conveyance in fee simple the vendor separates himself from the land conveyed, and the vendee under such deed has no further connection with his vendor, the purchase money having been paid. Chief Justice Marshall, in Blight’s Lessee v. Rochester, 7 Wheat., 535, very aptly brings this in view, when he says, at page 547: “The propriety of applying the doctrines between lessor and lessee to a vendor and vendee may well be doubted. The vendee acquires the property for
We have endeavored to make our meaning plain in regard to the effect of these deeds of conveyance in fee simple. We regard the first of such conveyances as a fraud upon the rights of the landlord, and as giving him a right of action to recover possession of such leased premises immediately after the execution of such deed, and that such right of action, if brought at any time within twenty years immediately following the execution of such deed, would have restored the land demised to the plaintiff-corporation. This brings us up squarely to the question, when was he bound to take notice of such deed? Unquestionably, if the fact of the execution of the deed had been brought to the actual attention of the plaintiff corporation at its date, he would have been so bound. But will not the possession be under the deed, and its being recorded in the office of the register of mesne conveyance for Greenville County, have a similar effect? We think so.
It was unfortunate for the plaintiff-corporation that the rent for the term was a sum in gross paid by the tenant at the beginning of the lease, for the reservation of a yearly rent of “one barley corn” was purely nominal. If the rent had been reserved to be paid annually, the landlord would have looked more closely after his rights in the premises. But the landlord and his tenant had the right to contract as they did, and if these misfortunes had not occurred, the landlord’s right to have recovered the demised premises at the expiration of the lease (1890) would have been unquestioned. The grand object of the creation of the trustees into a body corporate was
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
I concur in the result reached in this case, though, I must confess, after much hesitation. It seems to me that, inasmuch as the grantor cannot convey any greater estate or interest than that which is vested in him, the several conveyances, purporting to be deeds in fee simple, operated only as assignments of the original lease to Walker; and hence the several holders under those deeds, including the defendant, held under that lease, and their possession was, therefore, permissive and not adverse. At least, this was so until some act was done amounting to a forfeiture of the lease, of which the plaintiff had notice more than twenty years before the commencement of this action. I was unable to see how the plaintiff could maintain an action against any one of the several holders of the land, before the termination of the lease, for all that the defendant would have to do in such a case would be to throw' himself upon his rights as assignee of the lease, and thus defeat the action. But the case of the Trustees of Wadsworth
Another point of doubt is the question of notice to the plaintiff that the several parties were claiming to hold the land adversely under the fee simple deeds. I do not think that the record of these deeds operated as constructive notice to the plaintiff, for, as I understand the rule, a party is bound to look up, but not down the line. As is said in 20 Am. & Eng. Enc. Law, 596: “The operation of the record as notice is prospective and not retrospective.” Hence, as is.there said: “A prior mortgagee cannot be charged with notice of, and cannot be affected by, a subsequent mortgage or deed by the mere record thereof.” See, also, Lake v. Shumate, 20 S. C., 32, to the same effect. The jury having been-instructed in accordance with this view, it then became a pure question of fact, as to whether the plaintiff had actual notice, and if they erred in their finding as to'such fact, such error is beyond our reach. The remedy was by a motion before the Circuit Judge for a new trial, which seems to have been unsuccessfully resorted to. If, in fact, there was no’evidence of such notice (which, I must say, seems to me was the case), then the Circuit Judge should have granted a new trial; but even if there was error in this respect, this court has often held that it was without jurisdiction to correct such error.
Judgment affirmed.
Concurrence Opinion
Under.the authority of the decided cases, I concur.
