Lassiter v. Okeetee Club

• Decision Date: 10 November 1904
• Citation: 49 S.E. 224,70 S.C. 102
• Parties: LASSITER et al. v. OKEETEE CLUB et al.
• Court: South Carolina Supreme Court

49 S.E. 224

70 S.C. 102

LASSITER et al. v. OKEETEE CLUB et al.

Supreme Court of South Carolina

November 10, 1904

Appeal from Common Pleas Circuit Court of Beaufort County.

Action by J. R. Lassiter and others against the Okeetee Club and J B. Bostick. From judgment for plaintiffs, defendants appeal. Affirmed.

W. N Heyward and A. McIver Bostick, for appellants. B. A. Hagood and W. A. Holman, for respondents.

POPE C.J.

This action was begun on _______ day of October, 1901. Its object was the recovery by the plaintiffs of the defendant Okeetee Club the 1,500 acres of land described in the complaint as the tract of land known as the "New River Rice Plantation" or the "Guerard Plantation." The defendant J. B. Bostick, it was alleged, was the agent of the Okeetee Club in charge of that plantation.

The complaint described the land as being embraced in a plat thereof made by John Norton, deputy surveyor, bearing date the 30th of April, 1837, and lying in Beaufort county, in this state.

The action came on for trial before Judge Aldrich and a jury. After the testimony offered by plaintiffs was closed, the defendants moved for a nonsuit. The circuit judge held that there was some testimony, and refused the nonsuit. The defendants excepted, and then offered their testimony. The verdict of the jury was for the plaintiffs for the land sued for and $250 damages. After entry of judgment the defendants appealed on the following grounds:

"(1) That the presiding judge erred in refusing the motion for a nonsuit, and in holding and deciding that color of title in plaintiffs was supported by some testimony as to possession, whereas he should have held that plaintiffs had failed to show chain of title back to the state, or for twenty years, to presume a grant, and that there was no evidence of possession sufficient to presume title or any right of possession in plaintiffs from any source whatsoever, but, on the contrary, that the evidence negatived the possession of the disputed lands by plaintiffs by showing affirmatively that defendants were in possession of the disputed lands held by them for more than twenty years, sufficient to presume title in them.

(2) That his honor also erred in not granting the nonsuit on the further ground that the evidence failed to show any limits or definite location as to the portions of disputed lands held by defendants; it clearly appearing from plaintiffs' testimony that considerable portions of the disputed lands were in possession of others, not parties to the action, and were not possessed or claimed by the defendants.

(3) That his honor erred in charging the jury that others, not parties defendant in this action, would not be prejudiced by any verdict in this action, thus implying that a verdict might be found against the defendants for lands not in their possession nor claimed by them, which instruction tended to mislead the jury to the prejudice of defendants.

(4) That his honor erred in admitting testimony as to damage from cutting timber; there being no allegation as to any amount of damage in plaintiffs' complaint, and therefore no cause of action stated for such damage.

(5) That his honor erred in submitting to the jury the matter of damage for cutting, selling, and appropriating proceeds of timber, in the absence not only of such issue raised by the pleadings, but also of any evidence upon which a verdict for damages could be based.

(6) That his honor erred in submitting to the jury the question of damage for detention of lands, and in charging them that, should they find that plaintiffs were entitled to recover the lands described in the complaint, or any part thereof, they might also find damages for the detention of said lands, such as annual rentals, use, etc., in the total absence of any such issue in the pleadings, and of any evidence whatsoever to support such a verdict.

(7) That the verdict of the jury and the judgment thereon was erroneous and unsupported by testimony, in that the uncontradicted testimony of both plaintiffs and defendants showed that a very considerable portion of the lands recovered in said judgment was never in possession of defendants, nor claimed by them, and, further, in that there was nothing either in the pleadings or the evidence to support a judgment for damages of any kind from any source whatsoever."

We will first pass upon the first and second grounds of appeal relating as they do to motion for nonsuit. The language of counsel in making their motion for nonsuit was as follows: "Mr. Bostick: We ask for a nonsuit on the ground that the plaintiffs have not made out title, and have not shown any facts from which title can be presumed. Further, they have not defined our possession, and that is material. They have to show that we are in possession of and withholding their land." After argument, the judge held as follows: "The Court: The question is whether the color of title is supported by any testimony as to possession, and I think it is. I will have to overrule...