88 S.E. 300 | S.C. | 1916
March 13, 1916. The opinion of the Court was delivered by This is an action by the plaintiff asking that she be adjudged the owner of one-third interest in a tract of land described in the complaint, and for the partition. The plaintiff's father, Joseph Benson, was killed in the war, leaving as his heirs at law his widow, afterwards Mrs. Wilkinson, and the plaintiff, then a minor. Mrs. Wilkinson was the stepmother of the plaintiff. Mr. Benson left some personal property, but no land. The widow took possession of the personal property without administration, sold it, and purchased a lot in New Market. This lot she sold and with the proceeds of sale purchased the land described in the complaint. A dispute arose between Mrs. Walker, the plaintiff, and her stepmother about the amount of interest of Mrs. Walker in the land. It was agreed by these two ladies to submit the difference to arbitration. Mrs. Wilkinson gave *14 her bond to abide by the award of the arbitrators in which she states the source of the purchase money as above set forth. The arbitrators awarded to Mrs. Walker one-third of the land, after Mrs. Wilkinson's death. The agreement to arbitrate is not in the record. Subsequently to the award, Mrs. Wilkinson sold the land to the appellant, Taylor, and Taylor sold to Harvley. The defendants answered denying notice and setting up the bar of the statute. Judge Moore, who tried the case on Circuit, in an elaborate and able decree (let the decree be reported) found that the appellants had full notice of the rights of the respondents, and adjudged that "she hereby is declared to be the owner in fee of one-third undivided part of the land described in the complaint." From this judgment the defendants appeal upon several exceptions, but state in the argument as follows:
"The grounds of appeal will not be taken up seriatim, in the presentation of the case, but the argument will be confined to the following points:
"First. Did plaintiff acquire any interest in the land, by the so-called arbitration?
"Second. Is the action barred by the statute — has defendant, Harvley, title by adverse possession?
"We think that under these heads all the questions may be discussed."
1. Did the plaintiff acquire any interest in the land, by the so-called arbitration?
This is a purely speculative question in this case. The property was bought with money belonging to Mrs. Wilkinson and Mrs. Walker, and was bought by Mrs. Wilkinson in part with Mrs. Walker's money, and there was a resulting trust in favor of Mrs. Walker, and there is nothing in the record to indicate that Mrs. Wilkinson ever denied Mrs. Walker's interest; but while in possession, with the legal title in herself, Mrs. Wilkinson executed the bond set out in the record. However ineffectual this bond may be to sustain the arbitration, it was good and effectual to show that *15 Mrs. Wilkinson acknowledged the interest of Mrs. Walker. It is very clear that Mr. Taylor, Mrs. Wilkinson's grantee, knew and had full notice of Mrs. Walker's claim. By his own statement he knew that Mrs. Walker claimed an interest in the land and had come to town to look after her interest and had her husband present at the sale to represent her. The bond in which the acknowledgment was made was also there and was turned over to him along with the deed. In answer to the question, "You did not take the trouble to find out the nature of that claim?" said, "It was of no interest to me." It was of interest to him, and he is charged with all the knowledge he could have had that day for the asking. He is charged with this full and complete information in ordinary fairness as well as in law. He took his deed, then, charged with the trust under which it was held by his grantor, Mrs. Wilkinson. Mr. Harvley also knew it. "Do you remember telling him further that Mr. Taylor told you that he had retained the Walker interest, and that they could not agree on a trade and she" (Mrs. Walker) "would not make it?" Mr. Harvley answered, "I have heard him say that lots of times." Now, if the arbitration proceedings are void, as such, then Mrs. Walker is entitled to a two-thirds interest; but, inasmuch as she has claimed only one-third, she cannot get more. If, on the other hand, the arbitration proceedings are binding, Mrs. Walker still gets one-third interest. On either horn of the dilemma, Mrs. Walker gets one-third interest.
2. "Second. Is the action barred by the statute — has defendant, Harvley, title by adverse possession?"
The action is not barred, and Mr. Harvley has no title by adverse possession. When Mrs. Wilkinson delivered the deed to Mr. Taylor, she also delivered to him a written acknowledgment that she did not claim the entire estate. Further than this, this Court has no doubt from the record that Mr. Taylor reserved a part of the purchase money, in acknowledgment on his part and in recognition of Mrs. *16 Walker's interest. Mr. Taylor cannot sustain his claim that he then threw off the trust. Mr. Harvley heard Mr. Taylor say that "lots of times," and he is bound.
3. It is further urged that Mr. Taylor had bought and surrendered certain mortgages that were given to those who had no notice, and as to these amounts Mr. Taylor should be protected by a Court of equity.
Judge Moore held that the interest of Mrs. Wilkinson fully covered these amounts. We fully agree with his Honor in this finding.
All exceptions are overruled, and the judgment appealed from is affirmed.
