Du Bose v. Gladden

Decision Date16 August 1906
Citation55 S.E. 152,75 S.C. 78
PartiesDU BOSE v. GLADDEN.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Chester County; Frank B Gary, Special Judge.

Action by Sarah F. Du Bose, administratrix of Susan C. Kell, against William A. Gladden. From an order granting a nonsuit plaintiff appeals. Affirmed.

Halcott P. Green and Henry McLure, for appellant. J. H. Marion, Glenn & McFadden, and Caldwell & Gaston, for respondent.

GARY A. J.

This is an action in claim and delivery, to recover the possession of five mules, one portable steam engine, two cotton planters and farming implements of the alleged value in the aggregate of $715. At the close of the plaintiff's testimony, the defendant made a motion for a nonsuit, which was granted, on the ground that there was no testimony tending to show that the plaintiff's intestate was the owner of the property described in the complaint.

1. While there are several exceptions, they present practically, but the single question whether there was error on the part of his honor, the presiding judge, in granting the nonsuit on the ground just mentioned. There was testimony to the effect that Mrs. Jane Hemphill, the mother of plaintiff's intestate, departed this life in 1861, leaving a will, whereby she advised and bequeathed to her said daughter (then the wife of Dr. Wade Douglass, who died during the war), one-third of all her real and personal estate, which was not to be subject to the debts, contracts, or control of her then living or any future husband. Shortly after the death of Mrs. Jane Hemphill, Mrs. Wade Douglass entered into possession of the lands devised to her, and also took possession of the personal property used for farming purposes on said lands. In 1864, Miss Mary E. Hemphill (a sister of Mrs. Douglass) died, leaving a will, by which she disposed of her real and personal property. Under the provisions of her will, Mrs. Douglass took possession of the two plantations known as the ""Home Place" and the "Rocky Creek Place." In 1866, Mrs. Douglass became the wife of B. E. Kell, who took charge of the lands in her possession, together with the stock and farming implements thereon. In 1873, an action to marshal the assets of Miss Mary E. Hemphill's estate was commenced by her executor against Mrs. Susan C. Kell and her husband, B. E. Kell. The latter filed an answer, in which he alleged that he was the owner of the work animals, cattle, and farming implements on said plantations. There does not seem to have been any specific adjudication of this claim, but there was a report by a referee, in which it was stated that Mrs. Kell was then (1873) "in possession of the personal property on said plantation, except the mules, horses, cattle, and other personal property, lost or destroyed by the casualties of war, during the winter of 1865." This report was confirmed and made the judgment of the court. Under and by virtue of the...

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