249 F. 522 | 4th Cir. | 1918
Lead Opinion
The only question before us is whether' the District Judge was in error in granting an involuntary nonsuit at the close of the plaintiff’s evidence. The complaint alleges that the plaintiff was the owner and entitled to possession of the land in dispute, and that in 1913 “the defendant, well knowing that the plaintiff had acquired the ownership of the property in question and was entitled to the possession thereof, willfully and wantonly entered upon the tract of land and cut and removed the timber from 391 acres thereof,” to the damage of the plaintiff $15,000. The defenses involved were: First, a general denial; and, second, possession of the defendant under paramount title.
“As we have seen', possession not obtained by a tortious act is prima facie evidence of title, and upon tbis the plaintiff may rest until the defendant justifies his invasion of the possession by- proving either title in himself or a license to enter from the true owner. We conclude, therefore, that, if the plaintiff held possession of the land, not acquired by the disseisin of the defendant, it was entitled to hold the land, and to recover of the defendant damages for invasion of its possession, and for the cutting of timber, unless the defendant proved title in itself, or a license from one proved to be the true owner, and that the court was in “error in' charging otherwise.”
See Cathcart v. Matthews, 91 S. C. 464, 74 S. E. 985, Ann. Cas. 1914A, 36.
It is insisted, however; that the Cape Fear Lumber Company, which conveyed to plaintiff, acquired a good title under the statute by adverse possession from December 4, 1899, to September 13, 1910, when it made a valid conveyance of its interest to the plaintiff. This contention rests on the erroneous conception that the possession of the plaintiff was the possession of the Cape Fear Lumber Company up to the day that it executed a valid conveyance to the plaintiff. The execution by the Cape Fear Lumber Company on October 28, 1907, of the paper intended to convey the title and the payment of the purchase money, which it recited, less than 10 years after the beginning of the alleged possession of the Cape Fear Lumber Company, was at least an equitable conveyance at that time, and the possession under it thereafter by the plaintiff was not under the Cape Fear Lumber Company, but adverse to it and all the world. Ellison v. Cathcart, 1 McMullan (S. C.) 5; Bank v. Smyers, 2 Strob. L. R. (S. C.) 24;
The unsoundness of this view and the impossible result to which it would lead are made clear by the attempt to apply it. A. asserts title by successive possessions without legal conveyances of persons in privity with each other and with him. If he proves his own adverse possession for 9 years, the possession of B., under whom he entered, for 9 years, and the possession of C., under whom B. entered for 3 years, he has made out his title by presumption. But under defendant’s theory of the law, if A. proves his own possession for 9 years and the possession of B., under whom he entered for 20 years, he fails, because he has proved title by presumption in B., and has not proved that the legal title has passed from B. to him by legal conveyance.
We venture to think, both on principle and authority the law may be thus stated: The successive possessions for 20 years give rise to the presumption of a grant to the first taker at the beginning. Starting with the first taker, the successive adverse possessions may be tacked to make out the full period of 20 years from which a good title is presumed in the last taker against all persons who are strangers in title to the successive possessors in privity with each other claiming the land as their own. This rule, that the possessions of successive holders in privity with each other for 20 years, though without formal deeds of conveyance from one to the other, is sufficient to confer good
This is decided and illustrated in Thomson v. Peake, 7 Rich. (S. C.) 353, where the last holder was held to have good title to the land on proof of successive adverse possessions for 20 years of those in privity with him without proof of successive formal conveyances. 2 Wash-burn on Real Property, 348. “The lapse of 20 years is sufficient to 3‘aise the presumption of a grant from the state, of the satisfaction of a bond, mortgage, or judgment, or of a grant of a franchise or the payment of a legacy, or almost anything else that is necessary to quiet the title of property.” Riddlehoover v. Kinard, 1 Hill, Eq. (S. C.) 376; Hutchinson v. Noland, 1 Hill (S. C.) 222; Young v. McNeill, 78 S. C. 143, 155, 59 S. E. 986. It follows that the plaintiff, by its evidence of successive possession of persons in privity of plaintiff and with each other, commencing with Elliott, made a case for submission to the jury of title by presumption for 20 years’ consecutive possessions.
But the defendant is not in a position to avail itself of this rule, for the reason that it derived no title from Elliott under the mortgage, and never had any right as assignee of the mortgage to assert against the plaintiff a claim to hold the land as mortgagee in possession. When the suit for foreclosure was commenced in 1910, Elliott had conveyed the land to Butters Lumber Company by deed dated in 1896, recorded in 1897, and the Butters Lumber Company was not made a party to the foreclosure suit. Hence Gerrald, the purchaser at the foreclosure sale, obtained no title to the land, but only an equitable assignment of the mortgage. Givins v. Carroll, 40 S. C. 415, 18 S. E. 1030, 42 Am. St. Rep. 889; Williams v. Washington, 40 S. C. 457, 19 S. E. 1; Brobst v. Brock, 77 U. S. (10 Wall.) 519, 19 L. Ed. 1002; Bryan v. Brasins, 162 U. S. 415, 16 Sup. Ct. 803, 40 L. Ed. 1022. His attempted con
Nevertheless, if the defendant was a mortgagee holding possession of the land, acquired without force or wrongdoing at the time of the commencement of this action, it would be entitled to hold possession against the plaintiff until payment of the mortgage. Bailey v. Bailey, 41 S. C. 338, 19 S. E. 669, 728, 44 Am. St. Rep. 713; Sims v. Steadman, 62 S. C. 304, 40 S. E. 677; Bryan v. Brasius, 162 U. S. 415, 16 Sup. Ct. 803, 40 L. Ed. 1022. Assuming the possession of the defendant under the claim of assignment of the mortgage at the time this action was commenced, this possession could not avail against the plaintiff as that of a mortgagee in possession, for the reason that at the time of the entry of defendant in 1913 the mortgage had been extinguished as a lien by a lapse of time. Section 3535 of Code of Laws of South Carolina, 1912, provides that no mortgage “shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation of the same,” except upon entry on the record of an. acknowledgment, which does not appear here. In Lyles v. Lyles, 71 S. C. 391, 51 S. E. 113, it was held that under this statute the lien of a mortgage is not extinguished until the lapse of 20 years from the-maturity of the mortgage debt. The date of the maturity of the debt does not appear in the record, but in the absence of evidence of the date of maturity the rule is that the debt will be considered immediately due. Harrison v. Cammer,2 McCord (S. C.) 246; Wilks v. Robertson, 3 Rich. (S. C.) 182; 2 Daniel, Neg. Inst. 88; 1 Jones on Mort. 75. It does not help’the defendant to assume that a payment of $10 made-at the date of the mortgage was pajunent of interest, indicating that the debt did not mature until October'31, 1892, a year after the date-of the mortgage, for the defendant did not enter until 1913, more than 20 years after October 31, 1892.
The conclusion that under the evidence the defendant had no valid claim to possession under Elliott, either as grantee or mortgagee in. possession, eliminates all questions of common source of title and the right of a mortgagee in possession, and places the defendant in a position of standing on its alleged possession unconnected with Elliott, the source of the plaintiff’s claim. .
The last point made by the defendant is that the statute above-cited (Civil Code, § 3535) is not available to the plaintiff, because section 147 of the Code of Procedure, relating to the time of the commencement of actions, provides that the time does not run in favor of one who is out of the state. This section obviously has no effect to-exclude foreign corporations from the benefit of section 3535 of the-Civil Code relating to the ’ extinguishment of liens by lapse of time.
On the record as presented, we conclude that the District Judge-erred in ordering an involuntary nonsuit, first, because evidence of-possession at the time of the alleged trespass by the defendant was prima facie evidence of title; and, second, because the evidence of possessions of successive holders in privity with the plaintiff and with.
Reversed.
Dissenting Opinion
(dissenting). I regret that, after anxious consideration, I find myself unable to concur in the conclusion reached by the court. I concur, without hesitation, in the process of reasoning and the conclusions stated, forcibly and clearly, in the opinion of Judge WOODS, in every respect, save the last proposition.
The title was in Elliott prior to his conveyance to the Butters Dumber Company. His title is founded upon the law of South Carolina, by which, after 20 years’ adverse possession, under a claim of right, a presumption arises that a grant was issued by the state, or deed executed by the true owner to the person holding such possession. This presumption is indulged because experience has justified the conclusion, when possession for this period is shown, that a grant or deed has been executed, which has either been lost or destroyed. It has, for its purpose, the security of titles. Ricard v. Williams, 7 Wheat. 109, 5 L. Ed. 398. The principle is clearly stated in Ellen v. Ellen, 16 S. C. 140:
“Title to land growing out of long-continued possession — long enough to presume a grant, deed or other muniment of title — attaches at the beginning of the possession, in a presumption of law, that a deed was executed at that time which has since been lost.”
This rule of law is not peculiar to South Carolina, but obtains, either by decisions of the court, or by legislative enactment in all of the American states — differences being found only in respect to the period of time during which possession is required to raise the presumption. In the light of the evidence in this case, the court takes it, as a fact, that Elliott either had a grant from the state, or a deed from the true owner. He conveyed to the Butters Lumber Company thereby vesting a perfect title in that company. This title may be divested:
(1) By a deed executed in accordance with the statute of South Carolina; it is conceded that no such deed was introduced in evidence.
(2) By an ouster, or disseisin, under color of title, followed by a continuous possession, in the disseisor, for the full period of 10 years; this is not shown.
(3) By possession, without any connection either of possession, or claim by those in possession, for 20 years.
The Butters Dumber Company undertook to convey to the Cape Fear I,umber Company by deed, ineffectual, because not properly executed —January 17, 1900. Assuming that, at that time, the Cape Fear Dumber Company took possession of the land, this action was instituted October 9, 1916; hence 20 years had not expired. If either the Cape Fear Dumber Company or plaintiff had remained in possession for 10 years, the deeds under which they entered, while invalid, and ineffectual to convey title, were color of title, such possession would have ripened into title. It is conceded that neither of these companies were in possession for the statutory period; hence, no title was acquired through this source. It is said:
*530 “The successive possession for twenty years gives rise to the presumption of a grant to the first taker at the beginning.”
In this I concur. It is further said:
“Starting with the first taker, the successive, adverse possessions may be tacked to make out the full period of 20 years from which a good title is presumed in the last taker to the successive possessors claiming the land as their own.”
From this proposition the conclusion is reached that the plaintiff may tack the possession of the Cape Fear Lumber Company and its own possession, admittedly less than 20 years, to the prior possession of the Butters Lumber Company and Elliott, for the purpose of completing the 20 years and raising a presumption of a deed to itself. In this conclusion I am unable to concur. The presumption based upon Elliott’s possession for 20 years exhausted its probative force when invoked to show title in him. The title which vested in the Butters Lumber Company is based, not upon a presumption, but upon a valid deed from the owner, Elliott. If a grant from the state to Elliott had been shown, and his deed to the Butters Lumber Company introduced, is it not clear that, upon the plaintiff’s evidence, it would fail in this action? The presumption of the existence of a grant or deed is as effectual, for the purpose of vesting title, as if a grant, or deed, had been introduced. If the plaintiff is dependent upon Elliott’s possession to raise the presumption that a grant or deed was executed to it, the evidence rebuts the presumption, and shows that the title is in the Butters Lumber Company. In other words, having invoked tire presumption to show title in Elliott and having shown that his title vested in the Butters Lumber Company, I am unable to perceive how it may again invoke the same presumption to show title in itself, which is contrary to1 the truth, as shown by its own evidence.
It is said, and in this I concur, that:
“Possession not obtained by a tortious act is prima facie evidence of title, and upon this tlie plaintiff may rest until the defendant justifies his invasion of the possession by proving either title in himself, or a license to enter, from the true owner.”
This language is quoted from the opinion of the learned judge, who writes tire opinion here, when a member of the Supreme Court of South Carolina. The law is stated with his uniform clearness arid accuracy. The distinction between the two cases is seen by reference to the facts stated in that case. The judge says:
“The important question is thus raised, whether a plaintiff alleging both title and possession (italics mine) is entitled to recover damages upon proof of his possession and the invasion of it by the defendant, without giving proof that he has a perfect title.”
This question is answered in the affirmative and sustained by an able, learned discussion, and citation of authority. Beaufort Land & Investment Co. v. New River Lumber Co., 86 S. C. 358, 68 S. E. 637, 30 L. R. A. (N. S.) 243. Here there is no allegation in the complaint that plaintiff was, at any time, in possession; but it is alleged that “the plaintiff was the owner and entitled to the possession of a tract of land,” etc., and that “defendant, well knowing that plaintiff was
I concur in the opinion that defendant did not acquire title by the purchase at the foreclosure sale. If it acquired the equitable rights of the original mortgagee, they must be asserted and administered in a court of equity. White the plaintiff has not, as I respectfully think, acquired the legal title to the land, and cannot, upon its own showing in this action, recover the value of the timber alleged to have been cut by defendant, it would seem that it has acquired equitable rights, which will be protected and enforced in a court of equity; here its right to recover depends upon its showing that it had the legal title. I cannot think that it may recovet of defendant, as it seeks to do, upon the evidence introduced before the District Court, the value of the timber, which was apparently the principal value of the land.
I think that the judgment of nonsuit should be sustained.
