40 S.E. 168 (S.C. 1901), Kolb v. Jones

Citation:40 S.E. 168, 62 S.C. 193
Opinion Judge:JONES, J.
Party Name:KOLB v. JONES.
Attorney:Lee & Moise, for appellant. A. B. Stuckey, for respondent.
Case Date:December 09, 1901
Court:Supreme Court of South Carolina

Page 168

40 S.E. 168 (S.C. 1901)

62 S.C. 193




Supreme Court of South Carolina

December 9, 1901

Appeal from common pleas circuit court of Sumter county; Klugh, Judge.

Action by Friendly Kolb against Lewis Jones. Judgment for plaintiff. Defendant appeals. Reversed.

Lee & Moise, for appellant. A. B. Stuckey, for respondent.


This is an appeal from a judgment on verdict in favor of plaintiff in an action to recover the possession of real estate.

[62 S.C. 194] The first exception alleges error in permitting Surveyor Haynesworth to prove the plat and survey made by him, when, as alleged, it appeared that the survey was made without notice to the defendant or his attorneys. This exception was doubtless taken under a misapprehension, as the "case" shows that 10 days' notice of the survey was served on defendant's attorneys. Under section 417 of the Civil Code, service of such notice after the commencement of the action was properly made upon the attorney.

The second exception assigns error in permitting plaintiff to introduce in evidence a deed purporting to be executed by Thomas E. Richardson and others to F. Kolb, on proof of its execution by Thomas E. Richardson alone. It was competent to introduce the deed on the proof made, certainly in so far as it was sought to affect the interest owned by Richardson. Harrelson v. Sarvis, 39 S.C. 20, 17 S.E. 368. The deed purported to be a quitclaim deed of the grantors of all right, title, and interest in the premises, and was not such as to require the signature of all parties interested before becoming effective as to any who signed, as in Arthur v. Anderson, 9 S. C. 234.

The third, fourth, and eighth exceptions charge error in the refusal of defendant's motion for nonsuit. In reference to these exceptions it will be sufficient to say that there was some evidence tending to show that plaintiff took possession of the land, having purchased it from W. E. Richardson in 1867, and that he continued to use the same and pay taxes thereon, claiming it as his own, down to 1892, the time of the trespasses complained of,--a period of more than 20 years. It was proper to refuse nonsuit. Busby v. Railroad Co., 45 S.C. 313, 23 S.E. 50.

The fifth exception complains of error in the following charge to the jury: "That if the jury find that the plaintiff entered into possession of the...

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