78 S.E. 706 (S.C. 1913), Fore v. Berry

Citation:78 S.E. 706, 94 S.C. 71
Opinion Judge:GARY, C.J.
Party Name:FORE et al. v. BERRY et al.
Attorney:W. F. Stackhouse, of Marion, for appellants. Montgomery & Lide and M. C. Woods, all of Marion, for respondents.
Case Date:March 18, 1913
Court:Supreme Court of South Carolina

Page 706

78 S.E. 706 (S.C. 1913)

94 S.C. 71

FORE et al.


BERRY et al.

Supreme Court of South Carolina

March 18, 1913

Appeal from Common Pleas Circuit Court of Marion County; S.W. G. Shipp, Judge.

"To be officially reported."

Action by T. L. Fore and others against E. B. Berry and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Page 707

The referee's report was as follows:

"By consent this case was referred to me as special referee, by order of this court, dated April 12, 1910, to take the testimony and report my findings of fact and conclusions of law with leave to report any special matter, and in accordance with this order I have taken all the testimony offered, which is hereto annexed.

"The complaint alleges that Willis Fore was at and before his death seised in fee of a tract of land in Marion county, containing 300 acres, more or less, bounded now or formerly by the lands of the estate of W. Evans, Hugh C. Dew, Gewood Berry, and Charles Haselden, being a tract of land conveyed to the said Willis Fore by A. Q. McDuffie, master; that Willis Fore and his wife, Sarah M. Fore have both died intestate; that the plaintiffs are the only heirs at law of Willis Fore and Sarah M. Fore, and are seised in fee and entitled to the possession of the premises described in the complaint, but that the defendants without right or title withhold the possession from them to their damage in the sum of $1,000. The defendants, all answering this complaint separately, admit the incorporation of the defendants Tilghman Lumber Company and Marion County Lumber Company, and that the plaintiffs are the heirs at law of Willis and Sarah M. Fore, but they deny all the other allegations of the complaint, and plead the statute of limitations and the presumption of a grant.

"[94 S.C. 73] From the testimony I find that Willis Fore acquired fee-simple title to the premises described in the complaint by virtue of a conveyance made to him by A. Q. McDuffie, master, on December 8, 1879, and that Willis Fore went into possession under this conveyance and continued in possession until January 4, 1886. On that date a written agreement was made between E. B. Berry and Willis Fore, the material portion of which is as follows: 'Whereas, there exists a dispute between said parties as to the title to a tract of land containing three hundred acres, more or less; and, whereas, we desire to settle said dispute without resort to law, we, the said E. B. Berry and Willis Fore, hereby agree to leave the point in dispute to arbitration.' The agreement also provides that each party shall select one arbitrator, with the right of the two thus chosen to select a third if necessary, the decision of two arbitrators to be binding. On the back of this agreement is the following indorsement: 'We, the undersigned, S.W. Berry and B. F. Hays, being chosen as arbitrators in the within mentioned case, have decided in favor of E. B. Berry. S.W. Berry. B. F. Hays.'

"Under this instrument the defendant E. B. Berry went into possession on January 4, 1886, and has been in continuous possession up to the present time. The defendants Tilghman Lumber Company and Marion County Lumber Company are both made parties to the action for the reason that they claim certain timber rights under E. B. Berry.

Page 708

the Tilghman Lumber Company claims its rights by virtue of a deed from E. B. Berry to Tilghman Lumber Company, dated February 20, 1899, and the Marion County Lumber Company by virtue of a deed from E. B. Berry to Cape Fear Lumber Company, dated July 7, 1898, and a deed from Cape Fear Lumber Company, dated August --, 1904.

"E. B. Berry testifies that he went into possession of the land described in the complaint on January 4, 1886, and that he has been in possession openly, adversely, and exclusive of [94 S.C. 74] all other rights and claims. This testimony is of too general a nature to warrant the...

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