Fore v. Berry

• Decision Date: 18 March 1913
• Citation: 78 S.E. 706,94 S.C. 71
• Parties: FORE et al. v. BERRY et al.
• Court: South Carolina Supreme Court

78 S.E. 706

94 S.C. 71

FORE et al. v. 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.

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.

" 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. 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 all other rights and claims. This testimony is of too general a nature to warrant the inference that his pedis possessio has extended over the entire tract of land. Section 103 of the Code of Procedure states the necessary elements of an adverse possession under a written instrument, and this testimony of E. B. Berry is rather in the nature of his opinion on a question of law. He says, however, 'I have been working it ever since.' This, therefore, is some testimony that he went into possession of the arable land, or at least some portion of it. There can be no doubt that he went into possession of some of the land in 1886 under this written instrument, and that his possession has been continuous, open, and notorious, and exclusive of all other claims up to the present time. Willis Fore died intestate on October 14, 1891, leaving as his sole heirs at law his wife, Sarah M. Fore, and his children, the plaintiffs in this action, namely, T. L. Fore, born January 5, 1871, Mary J. Fore (Dudley), born June 13, 1872, Tracey E. Fore, born November 17, 1874, Rebecca Fore (Hayes), born November 29, 1878, and W. K. Fore, born January 31, 1880. Sarah M. Fore, the wife, died intestate on August 31, 1906, leaving the plaintiffs as her only heirs at law, and on November 21, 1907, plaintiffs commenced this action for the recovery of the land described in the complaint.

"The defense of a presumption of a grant was not argued and was apparently abandoned, both defendants and plaintiffs doubtless recognizing the rule that, to raise the presumption of a grant, there must be 20 years' possession exclusive of the period of infancy, and also that the failure of the presumption is personal to the infant, and cannot inure to the benefit of the other tenants. Massey v. Adams, 3 S. C. 254; Garrett v. Weinberg, 48 S.C. 28, 26 S.E. 3. The entire contention is over the statute of limitations and the admissibility in evidence of the arbitration agreement and award under which E. B. Berry went into possession. The plaintiffs contend that the defense of the statute of limitations must fail, because the bar of the statute was not complete when Willis Fore died in 1891, and that it was suspended during the infancy of any of his heirs, they being tenants in common, and that under section 108 of the Code of Procedure they have 10 years in which to begin this action after the majority of the youngest child, W. K. Fore, born January 31, 1880. The plaintiffs also earnestly object to the admission of the arbitration agreement and award on the ground that it does not contain a sufficient description of the premises, that it does not appeal from the writing itself what property is referred to, and that parol evidence of extrinsic circumstances is inadmissible to show what land is referred to. They also object to the paper on the additional grounds that the paper is insufficient as an arbitration agreement, that land is not a proper subject of arbitration, and that title to land cannot be transferred by arbitration.

"The defendants insist that this arbitration agreement and award is a complete bar to this action; that the effect is the same as if a deed had been executed by Willis Fore to E. B. Berry; that, while the agreement and award cannot of itself pass title, yet it will act as an estoppel. This rule is expressly recognized in the case of Garvin v. Garvin, 55 S.C. 360, 83 S.E. 458, but I do not think the rule applicable in this case, for the reason that the agreement to submit the dispute to arbitration does not constitute an actual submission, because the instrument does not designate the arbitrators, nor is there any testimony tending to show that the persons who signed the award were really the persons to whom the matter was submitted. The mere fact that they signed the award is not sufficient evidence that they were selected to arbitrate the dispute. This point was considered in the case of Cothran v. Knox, 13 S.C. 509, where an arbitration and award were set up in bar of an action. The court said in this case: 'There is also the same uncertainty as to the persons to whom the matters were submitted for arbitration. The only evidence tending to show that Wosmansky was one of the persons selected is the vague impression of Milford that both parties agreed that Wosmansky should assist him in making the settlement, for certainly the mere fact that Wosmansky signed the paper purporting to be the award cannot be regarded as evidence that he was one of the persons selected as arbitrators; while the testimony of Cason, the only other witness relied upon to show the submission, not only fails to show that Wosmansky was agreed upon as one of the

...