D.W. Alderman & Sons Co. v. McKnight

• Decision Date: 15 July 1913
• Citation: 78 S.E. 982,95 S.C. 245
• Parties: D. W. ALDERMAN & SONS CO. v. McKNIGHT.
• Court: South Carolina Supreme Court

78 S.E. 982

95 S.C. 245

D. W. ALDERMAN & SONS CO. v. McKNIGHT.

Supreme Court of South Carolina

July 15, 1913

Appeal from Common Pleas Circuit Court of Clarendon County; R. E Copes, Judge.

Action by the D. W. Alderman & Sons Company against Sarah A McKnight. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, 74 S.E. 1103.

The report of J. S. Lesesne, as special referee, was as follows:

"Pursuant to an order of court, referring to me as special referee, to take testimony and report my conclusion of both law and fact in this action, I beg leave to report to the court that I have held a reference, including hearings, on three different days, at which were present the attorneys for the plaintiff and the defendant, and have taken a great deal of testimony, both oral and documentary, which I respectfully herewith submit as part of my report.

"On the 5th of November, 1910, Mrs. S. A. McKnight, the defendant, executed and delivered to the Manning Realty & Insurance Company, a corporation, her certain contract of agreement, obligating to convey to the Manning Realty & Insurance Company, upon certain terms mentioned in the contract, her Black River Swamp lands adjoining, or as part of, her plantation about two miles from the town of Manning. That contract contained the following stipulations: 'That Manning Realty & Insurance Company has bought said land for the sum of $12.50 per acre cash, of which $250 has been paid this day, and the remainder is to be paid as soon as the titles can be abstracted, and the land surveyed, and acreage ascertained, and deeds made. The Manning Realty & Insurance Company or its assigns shall take and pay for all of the land that Mrs. S. A. McKnight has good title to, and same shall be conveyed to it or its assigns by good and sufficient deed, with covenants of warranty and free from all incumbrances--the number of acres to be ascertained by a survey by two surveyors, one appointed by the said Mrs. S. A. McKnight and paid for by her, and the other appointed and paid for by the said Manning Realty & Insurance Company.' Subsequently the Manning Realty & Insurance Company transferred and assigned its contract to D. W. Alderman & Sons Company, the plaintiffs herein.

"A contention arose between the plaintiff and the defendant as to the validity of the title to some of the swamp land involved, and the plaintiff brings this action, claiming that the titles to only a portion of Mrs. McKnight's swamp land, that is to say, the portion lying in the swamp nearest the hill and adjoining her uplands, being something less than 200 acres, is good and marketable, and that the title to a portion claimed by her and lying farthest in the swamp, going to the center of the same, is not good and marketable, the plaintiff alleging in substance that he is ready to take over and pay for, and comply with the contract as to that portion of the land to which she has good titles. There were also some allegations in the complaint to the effect that the defendant was withholding from the plaintiff certain information affecting her source of title, the plaintiff asking that the defendant be required to disclose her source of title to all of her swamp land in order that the court might pass upon the same, and require both parties to carry out the terms of their contract. However, in the course of the reference, the defendant seems to have produced whatever land papers she had, and to have disclosed whatever information she was in possession of concerning the titles to her swamp land, and this point not being urged in the reference I apprehend there is no further controversy on this question, and that the entire case is fully before me.

"The defendant put in her answer denying all of the allegations of the complaint inconsistent with the allegations and admissions which are set forth in her answer, and alleged that she is the owner in fee of 3,098 2/10 acres of swamp land, lying, being, and situate in the county of Clarendon, bounded on the north by lands of De Lane, D. M. Hudnal, W. E. Brown, W. H. Cole, and D. M. Bradham, the center of Black River Swamp being the line; bounded on the east by lands of B. W. Alderman and Sons Company and A. P. Burgess; bounded on the south by lands of the defendant; bounded on the west by Levi and Alsbrook; the said swamp land being more fully delineated on a plat made by R. M. Cantey and E. J. Smith, surveyors, dated January 7, 1911. The defendant further alleged that she had been in open, exclusive, notorious, and adverse possession of the said swamp land for more than 20 years, paying the taxes thereon and claiming the same as her own against all the world. She admitted the execution of the contract on the 5th of November, 1910, as set out in the complaint, and alleges that she is ready and willing to execute to the plaintiff her warranty deed conveying unto it the above-described tract of land in fee, upon the plaintiff complying with the terms of the contract; but that she, the defendant, is not willing to convey only a portion of the land covered by her contract and not all of it. The defendant further asks that she be adjudged by the court to be the owner of the above-described tract of swamp land, and that upon her executing her warranty deed, conveying said tract of land unto the plaintiff, that it be required to pay over to her the amount due under the contract as set forth in the complaint. "Under the contract above mentioned, the plaintiff and the defendant appointed Mr. E. J. Smith and Mr. R. M. Cantey, two very competent surveyors, to ascertain the number of acres of swamp land involved, and as a result of this survey the surveyors have made up a large plat, signed by them, under date of January 7, 1911, offered in evidence as Exhibit A. This plat, which will hereafter be referred to and known as the Cantey-Smith plat, is elaborately made, and shows all the contentions of the plaintiff and the defendant, and will necessarily play an important part in the settling of this controversy. This plat purports to show in dotted lines various old grants and plats covering portions of the McKnight swamp lands, which have been introduced in evidence; some of these old plats and grants being so old that it is hard to link them with any accuracy in the chain of title to the lands which they purport to cover.

"Referring to the Cantey-Smith plat, the plaintiff contends that the defendant has a good and marketable title to only that portion of swamp land which lies on the southern edge of the swamp, and which lies south of the dotted line F, A, G, H, I, and that it is willing to take over and pay for the swamp lands lying south of this line, but that it is not willing to take over and pay for that portion of the swamp land lying north of the line just above indicated; the same going to the center of the swamp. On the other hand, the defendant contends that she is the absolute owner and in possession of all the swamp land lying between the hills, or her uplands, and running in the swamp to the practical center thereof, indicated by heavy black line on the Cantey-Smith plat as line from D to E, and that the plaintiff should be required to take over, under the terms of the contract, her entire swamp holdings, running into this heavy black line D, E, comprising an area containing 398.2 acres.

"This case, ordinarily, is one to be passed upon by a jury, and while it is proverbially a saying that it is uncertain what a petit jury will conclude in finding a verdict, yet I believe it is an easy presumption as to what the verdict of a petit jury would be in this particular case, with the same lights before the jury that are now before me, I am satisfied that a jury would come to the conclusion that if the defendant were required to make over and convey to the plaintiff only that portion of her swamp lands to which the plaintiff admits she has good title, that is to say, the strip of swamp land lying adjacent to the hill and south of the line F, A, G, H, I, that this would be tantamount to saying that the defendant has no title to that portion of the swamp lying between the line F, A, G, H, I, and the center of the swamp, and that, this portion of land in the middle of the swamp being fit for practically nothing except the purposes for which it is now being bought, that is to say, for timber purposes, and being thus isolated in the middle of the swamp, it would be practically valueless, and she could then scarcely induce other purchasers to entertain the idea of purchasing the said lands. Under that condition of affairs, I believe a petit jury would find that the defendant does own, and has been in possession of, and has a marketable title to, the swamp lands which she contends that she owns, that is to say, into the swamp as far as the center of the same.

"But while these facts are true, and while I believe this is what a jury would find under the given state of circumstances, and while it is my purpose to find practically what I believe would be the verdict of a jury in this case, yet I cannot afford to rest my findings upon the reasons mentioned above, and thereby subject my findings to the criticism of being based upon policy or expediency. I am of the opinion from all of the evidence adduced at the hearings that the defendant is entitled to, not in the minutest detail, but substantially to what she contends for.

"The defendant is in possession of her swamp lands, along with the uplands adjacent thereto, under deeds which she obtained from her father, the late W. R. Carpenter, who has been dead for 23 years or more. Numerous deeds and conveyances have been introduced in evidence showing chain of title and how the land came into the late W. R. Carpenter and into the

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