Carr v. Mouzon

• Decision Date: 02 August 1910
• Citation: 68 S.E. 661,86 S.C. 461
• Parties: CARR v. MOUZON et al.
• Court: South Carolina Supreme Court

68 S.E. 661

86 S.C. 461

CARR v. 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.

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

WOODS J.

The appeal is from a judgment in favor of the defendants in an action to recover possession 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 the land belonged to his brothers. In reply H. H. Kinder, one of the persons who had made the division of the land by request of the brothers, testified that he heard nothing of any agreement that L. W. Mouzon was to hold the land assigned to him in subordination to the title of his brothers.

The exceptions to the charge are very numerous and elaborate; but from the above statement it will be obvious that the material inquiry is whether there was error in stating to the jury the law bearing on the subject of 10 years' adverse possession under the statute, and 20 years' adverse possession from which a grant is presumed, as distinguished from permissive possession in subordination to the legal title. Short reference to the numerous points made by the exceptions will be sufficient to show that there was no error in submitting the issue to the jury.

1. The instruction as to the effect of recording papers was in precise accord with the statute, and certainly did not convey the impression that the defendant was entitled to hold the land under the deed of 1861, without respect to the issue of adverse possession; for the charge as to the right to recover against the legal title on proof of adverse possession for the requisite period was several times repeated.

2. The charge was clear and explicit as to the difference between adverse possession for 10 years under the statute and adverse possession for 20 years which will presume a deed or a grant but, even if the charge had required that the plaintiff must show 20 years' adverse possession in L. W. Mouzon after conveyance of his interest in 1861, the error would have been of no consequence, for the issue was not whether he had been in possession for 20 years, but whether the possession...