53 S.C. 367 | S.C. | 1898
The opinion of the Court was delivered by
This action was brought for the partition of a certain tract of land situate in Orange-burg County, the plaintiffs alleging in their complaint that they and the defendant, Williams, are seized in fee, as tenants in common of the said land, and that the defendant, Gleaton, claimed to hold a mortgage upon the interest of the said Williams in said land. The defendant, Williams, in his answer, sets up several defenses. First. He admits that his codefendant, Gleaton, holds certain mortgages on the real estate described in the complaint, and denies each and every other allegation contained in the complaint. Second. He alleges “that the plaintiffs were not, at the commencement of this action, the owners of the premises [as] alleged, or any part thereof, but that the defendant, Braxton B. Williams, was seized, as the owner in fee simple, and in the lawful possession of the said premises.” Third. This defense need not be stated, as it is not pertinent to any question presented by this appeal, further than that it contains a denial of every allegation in the complaint “not hereinbefore specifically admitted.” Fourth. The same may be said of this defense. Fifth. In this defense, it is alleged, substantially, that the plaintiffs claim as heirs at law of their father, the late Thomas W. Tyler, who departed this life intestate; that the land in question was sold by the sheriff, after the death of the said Thomas W. Tyler, under executions to enforce the payment of judgments obtained against him during his lifetime, and bid off by his widow, the mother of the plaintiffs, for the sum of $600; and she, having complied with the terms of sale, received titles for the land, which, by various intermediate conveyances, stated in detail, passed to and vested in the defendant, Williams; “that the said plaintiffs have not, nor have either or any of them, any right, title, interest or right of possession in or to said premises, or any part thereof, either as tenants in common with this defendant or otherwise,” but “that the right, title, interest, and estate of the said Thomas W. Tyler
The answer of the defendant, Gleaton, admits that he is the holder of certain mortgages on the land in dispute, of which he alleges that his codefendant, Williams, is the owner, and denies each and every other allegation in the complaint, except that which is specifically admitted. The other allegations in this answer need not be stated, as they are not pertinent to any question raised by this appeal. The plaintiffs filed a reply, admitting that both parties claim under Thomas W. Tyler as a common source of title, but deny the validity of the conveyances through which the defendant, Williams, traces his title from said Thomas W. Tyler. The following statement appears in the “Case:” “The case came on to be heard at the May term, 1897, before his Honor, Judge Earnest Gary, when the defendant’s attorneys moved his Honor to submit to a jury the following issue: ‘Is B. B. Williams, the. defendant, the owner in fee of the tract of land described in the complaint, and has he a good and valid title thereto?’ The attorneys for the plaintiffs moved to amend the issue by inserting the word ‘sole’ before the words ‘owner in fee,’ or by adding the words ‘exclusive of any right of the plaintiffs.’ His Honor refused both of these amendments, and granted the order moved by the defendants’ attorneys, to which plaintiffs’ attorneys duly excepted. The case was heard on said issue before his Honor and a jury, his Honor ruling that the defendants, having to maintain the affirmative of the issue, were entitled to the opening and reply.”
At the close of the testimony, which is set out in the “Case,” and after the argument of counsel, the Circuit Judge charged the jury as set out in the “Case” (a copy of which should be incorporated in the report of this case), where
The fifth exception, being in violation of the rule, is not entitled to be considered. But we may say that, under the views hereinbefore presented, it cannot be sustained.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.