McLain v. Allen

• Decision Date: 02 July 1913
• Citation: 79 S.E. 1,95 S.C. 152
• Parties: McLAIN v. ALLEN et al.
• Court: South Carolina Supreme Court

79 S.E. 1

95 S.C. 152

McLAIN v. ALLEN et al.

Supreme Court of South Carolina

July 2, 1913

Appeal from Common Pleas Circuit Court of Kershaw County; Geo. W Gage, Judge.

Action by George W. McLain, administrator, against Edward Allen and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Defendants' exceptions are as follows:

"First. For error in his honor in allowing the witness George McLain to testify as follows, over the objection of this defendant: 'Q. Did you ever receive rent, before Henry Davis died, from the house, from anybody? A. From Mr Moore. Q. Who was Mr. Moore? A. Real estate agent. Q. Where is he now? A. In New York, I am told. He would collect rent for Henry Davis, bring it to me, and I would give him the receipt for old man Henry. Old man Henry authorized me to receive $1.80 for him, and to keep it for him, and when he came to the shop I would give it him. The Court: I think it competent for the witness to say he collected rent from the property and turned it over to Henry Davis.' Whereas, it is respectfully submitted that the court should have held the said testimony incompetent, and merely hearsay, and should have excluded the same.

"Second. For error in admitting the declarations of the witness Mary Carter as to pedigree of Henry Davis, Eliza Villepigue and Allen, over the objections of this defendant; she being a stranger, and having no relationship to the said Henry Davis, Eliza Villepigue, or Allen--the court holding as follows: 'You can prove it by anybody who knows; if a stranger knows, as well as a relative, can prove it by stranger.' Whereas, the court should have held, it is respectfully submitted, that the said testimony was incompetent and inadmissible.

"Third. For error in not allowing the witness Rose Woodside to state in full her conversation with Henry Davis, after respondent's attorneys had brought out part of said conversation in reference to permission granted her by Henry Davis to do certain things in reference to said lot, and for error in refusing to allow appellants' attorney to examine said witness in reference thereto, as follows: 'Mr. De Loach: Now he has brought out part of the conversation with Henry-- Mr. Wittkowsky: I have brought out nothing. Mr. De Loach: What did Henry say? Mr. Wittkowsky: We object, under section 400. The Court: What part did he bring out? Mr. De Loach: In regard to his permission. The Court: Overruled.'

"Fourth. For error in charging the jury as follows: 'Now, it is important to fix the date.

This action was begun May, 1910; that is the reckoning point, May, 1910. Rose must have had that land for 10 full years before that date; that is to say, she must have had it, been on it, in May, 1900, and held it from May, 1900 to May, 1910--not only held it, but held it adversely against the owner.' Whereas, it is respectfully submitted, his honor, the circuit judge, should have left it to the jury to fix the point from which to reckon the 10 years' adverse holding, and should not have limited the adverse holding from May, 1900, to May, 1910.

"Fifth. For error in charging the jury that May, 1910, was the reckoning point in fixing the point from which to reckon the adverse holding, same being a charge upon the facts. For error in submitting to the jury the issues herein in the form of three questions, as set forth in his charge, as follows: 'The first is: Was Henry Davis the owner of the premises? The second: Is the title of the premises now in Allen? Third: Is the title in the premises in Rose Woodside by adverse possession? And you answer these questions "Yes," or "No," as you determine the facts, and sign your name as foreman.' Whereas, it is respectfully submitted that his honor, the presiding judge, should not have submitted the issues in this form, and he committed error in not charging the jury the facts to be determined by them should be under the rule that the plaintiff is required to make out his case by the greater weight of the evidence."

W. B. De Loach, of Camden, for appellants. Kirkland & Kirkland and L. A. Wittkowsky, all of Camden, for respondent.

WATTS J.

This was an action by the plaintiff against the defendant for the sale of real estate in the aid of personality to pay debts, etc., and the appellant, Rose Woodside, was made a party to that suit, and made answer denying the allegations of the complaint, and set up adverse possession in her of the land in dispute. The case came for trial at the November term of the court for Kershaw county before Judge Gage in November 1912. Upon the trial his honor submitted to the jury certain issues, and the finding by the jury was against the contention of the appellant, and after entry of judgment she appealed, and asks reversal on five exceptions, which should be set out in the report of the case.

The first exception alleges error in the admission of certain testimony of the witness George McLain by reference to what took place. Objection was made to only two questions, to wit "Did you ever receive rent, before Henry Davis died, from the house, from anybody?" Answer: "From Mr. Moore." "Who...