68 S.E. 661 (S.C. 1910), Carr v. Mouzon

Citation:68 S.E. 661, 86 S.C. 461
Opinion Judge:WOODS, J.
Party Name:CARR v. MOUZON et al.
Attorney:Lee & Askins, for appellant. Kelly & Hinds, for respondents.
Case Date:August 02, 1910
Court:Supreme Court of South Carolina

Page 661

68 S.E. 661 (S.C. 1910)

86 S.C. 461



MOUZON et al.

Supreme Court of South Carolina

August 2, 1910

Appeal from Common Pleas Circuit Court of Williamsburg County; T. S. Sease, Judge.

Action by W. H. Carr against S. R. Mouzon and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Page 662

Lee & Askins, for appellant. Kelly & Hinds, for respondents.


The appeal is from a judgment in favor of the defendants in an action to recover possession [86 S.C. 464] of land. On the 2d day of July, 1860, L. W. Mouzon conveyed by quitclaim deed to his brothers John P. Mouzon, Dunkin K. Mouzon, and Samuel R. Mouzon all his right, title, and interest in two tracts of land in Williamsburg county referred to in the deed as lands "more particularly mentioned in the will of Samuel R. Mouzon, deceased," the father of grantor and grantees. This deed was recorded on May, 27, 1861. A tract of 245 acres, part of the land embraced in this deed, is the subject of controversy in this action. The defendants John P. Mouzon, Dunkin K. Mouzon, the grantees in this deed, and the other defendants, heirs of the grantee, Samuel R. Mouzon, are in possession of the land. The plaintiff claims through L. W. Mouzon by later conveyances as follows: (1) Deed of conveyance from L. W. Mouzon to B. B. Mouzon dated October 10, 1900, covering the tract of 245 acres except a small lot conveyed to a church; (2) mortgage of B. B. Mouzon to A. S. Coker dated October 9, 1907; (3) deed of conveyance from H. O. Britton, clerk, to the plaintiff, dated November 3, 1908, under a judgment of foreclosure under the above-stated mortgage.

If the cause depended on the paper title alone, the plaintiff could have no chance of recovery, because both parties claim through L. W. Mouzon, and it is not denied that the defendants have the older deed from him. Plaintiff's counsel, it is true, contended that the defendants had not acquired title from L. W. Mouzon because at the time he conveyed in 1860 he had, under the will of his father, only a contingent interest in the land. The will is not in the record, and the court cannot assume that the interest of L. W. Mouzon was contingent; but, even if such an assumption could be allowed, the result would be the same, for it is well settled that a contingent remainder is assignable. Allston v. Bank, 2 Hill, Eq. 235; Roundtree v. Roundtree, 26 S.C. 450, 2 S.E. 474; Bank v. Garlington, 54 S, C. 413, 32 S.E. 513; Earle v. Maxwell, 86 S.C. 1, 67 S.E. 962; Rembert v. Evans, 68 S.E. 659.

The plaintiff's case, then, depends upon evidence offered by him of adverse possession for a period of 10 years under the statute, or for 20 years from which a reconveyance to L. W. Mouzon from the holders of the title would be presumed. The evidence on both sides was clear to the effect that in 1876, after the execution of the deed of 1861 by which L. W. Mouzon conveyed to his brothers his interest in the lands devised by his father, there was a partition of the lands among all the brothers; that in the partition the tract in dispute was set apart to L. W. Mouzon; and that he remained in possession of it for more than 20 years before he sold to B. B. Mouzon. The practical issue was thus narrowed down to the inquiry whether the possession of L. W. Mouzon was adverse to his grantees who held the legal title, or in subordination to the legal title and merely permissive. On this issue the plaintiff proved that L. W. Mouzon asserted title in 1892 by executing a deed purporting to convey a lot to a church, and in 1893 by executing a mortgage to W. M. Kinder. In addition to this, there was strong parol evidence to the effect that L. W. Mouzon held the land as his own, in that he collected rents, sold timber, and spoke of the land as his own. On the other side the defendants S. R. Mouzon and D. K. Mouzon testified that the land devised was divided, and the tract in dispute set apart to L. W. Mouzon entirely as an act of kindness on the part of his brothers; the agreement being that by permission of the true owners he should have the use of it for his support. There was evidence from another witness that he had heard L. W. Mouzon say that...

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