Keenan v. Lesslie

• Decision Date: 01 April 1908
• Citation: 60 S.E. 1114,79 S.C. 473
• Parties: KEENAN et al. v. LESSLIE.
• Court: South Carolina Supreme Court

60 S.E. 1114

79 S.C. 473

KEENAN et al. v. LESSLIE.

Supreme Court of South Carolina

April 1, 1908

Appeal from Common Pleas Circuit Court of York County; J. E McDonald, Special Judge.

Action by Lucy Keenan and others against D. Preston Lesslie. Judgment for defendant, aud plaintiffs appeal. Affirmed.

Spencers & Dunlap, for appellants.

J. S Brice and W. B. McCan, for respondent.

JONES J.

The plaintiffs brought this action against defendant to recover possession of six acres of land in the fork of the Landsford and Columbia Roads near Lesslie's in York county. The complaint alleged that Raph Keenan having purchased said land from George Sturgis, was seised and possessed of same at the time of his death intestate in 1900, and that plaintiff Lucy Keenan as his widow and the other plaintiffs as his only heirs at law are seised in fee and entitled to the premises, and that defendant is in possession and wrongfully withholds the same. The defendant denied that plaintiffs or their ancestors had any title to the premises, and set up legal title in himself. The plaintiffs offered some evidence tending to show that Raph Keenan entered into possession about 1875 or 1876 under a parol contract of purchase with George Sturgis, then owner which was thereafter fully performed, and remained in possession until his death in June, 1900, in which possession his heirs continued until dispossessed by defendant during that year, and that defendant when he purchased knew that Raph Keenan had been in possession since 1877; but there was no testimony that defendant had notice that the possession was under contract of purchase, nor that said contract had been performed. The defendant's testimony showed a complete chain of title in himself from the common source as follows: (1) Deed from George W. Sturgis to F. H. Barber, dated December 13, 1876, duly recorded February 5, 1877. (2) Deed of F. H. Barber to Matthew H. Williams, dated March 22, 1879, duly recorded March 27, 1879. (3) Deed of the heirs at law of Matthew H. Williams to the defendant, dated January 2, 1900, duly recorded March 5, 1900. The testimony in behalf of the defendant further tended to show that Raph Keenan went into possession in 1876 under F. H. Barber, and that F. H. Barber contracted to sell Keenan the land for $62.50 payable in 12 months; that Keenan paid Barber $17, but was unable to pay more; that upon Barber urging payment Keenan brought Matthew Williams to buy the land in 1879, and that as a result Barber conveyed the land to Williams in consideration of $56.40, which was arrived at by charging interest on $62.50 and deducting the $17 payment; that Keenan continued in possession as tenant of Williams, paying him rent for the lands until Williams' death in 1899; that defendant purchased the land from the heirs of Williams for $150 without any knowledge that Keenan or his heirs were in possession claiming to be owners. Lucy Keenan in reply testified that no rent was ever paid by Keenan on the land in question. The jury found for the defendant, and from the judgment thereon plaintiffs appeal.

The court refused to charge plaintiffs' sixth request as follows: "Where a plaintiff proves a perfect equitable title to land, he may recover of the defendant on the allegations of the complaint that plaintiff is seised in fee simple and entitled to the possession"-but on the contrary charged the jury that "it must be the legal title, and not the equitable title, under which a plaintiff in such an action as this must recover possession." The only question presented by the exception is whether the foregoing charge and refusal to charge was error in face of the fact that testimony pro and con upon the issue of an equitable title was allowed to be offered on the trial. To sustain their appeal appellants rely on the case of Parker & Co. v. Jacobs, 14 S.C. 112, 37 Am. Rep 724, and on section 274, Code Civ. Proc. 1902, which provides that "an issue of fact in an action for the recovery of money only or for specific real estate or personal property must be tried by a jury unless a jury trial be waived as provided in section 288 or a reference be ordered." The issue tendered by the complaint and answer in this case was strictly legal, and it...