Colclough v. Briggs

• Decision Date: 06 October 1914
• Docket Number: 8964.
• Citation: 83 S.E. 35,99 S.C. 181
• Parties: COLCLOUGH v. BRIGGS ET AL.
• Court: South Carolina Supreme Court

83 S.E. 35

99 S.C. 181

COLCLOUGH v. BRIGGS ET AL.

No. 8964.

Supreme Court of South Carolina

October 6, 1914

Appeal from Common Pleas Circuit Court of Clarendon County; T. S Sease, Judge.

"To be officially reported."

Action by S. M. Colclough against A. J. Briggs and others. Judgment for plaintiff, and defendants appeal. Reversed.

See also, 95 S.C. 4, 78 S.E. 530.

Davis & Weinberg, of Manning, for appellants.

J. J Cantey, of Summerton, for respondent.

GARY C.J.

This is an action for the recovery of damages alleged to have been sustained by the plaintiff on account of a breach of the warranty contained in a deed described in the complaint herein, which will be found in the report of this case on a former appeal in 95 S.C. 4, 78 S.E. 530.

The facts are thus stated in the decree of his honor the presiding judge:

"This action was heard by me in open court on the pleadings, the records in the cause, and the testimony offered in evidence; a jury being waived by all parties to the action. It appears that a demurrer to the complaint was first interposed by the defendant on the ground that said complaint failed to state a cause of action, but said demurrer was overruled in a recent decision of the Supreme Court of the state. It appears that in the year 1904 E. M. Briggs and R. R. Briggs, trustee, conveyed to the plaintiff herein a lot of land in the town of Summerton, county and state aforesaid, and warranted the title to same; that in the year 1908 the Northwestern Railroad Company of South Carolina commenced an action to recover a portion of said lot extending 100 feet from the center of its track, by virtue of a deed from the said E. M. Briggs and R. R. Briggs, said railroad company having acquired said title, and having been in full operation, several years previous to the conveyance of said lot to the plaintiff herein as aforesaid; that, at the time of the commencement of the action by the said railroad company against the plaintiff, the said plaintiff vouched the said R. R. Briggs, trustee, and required him to come in and defend said action, which the said R. R. Briggs, trustee, refused to do, whereupon plaintiff employed attorneys and defended the action, which terminated in a decree of the Supreme Court, as reported in Colclough v. Northwestern Railroad Co., 89 S.C. 555, 72 S.E. 494. The action herein by the plaintiff is for damages on account of a breach of warranty and expenses incurred by reason of defending the suit referred to in 89 S.C. 555, supra."

Turning to the case of Railroad Co. v. Colclough, 89 S.C. 555, 72 S.E. 494, we find the following statement of facts:

"Briefly it may be stated that the evidence established a grant, about the year 1888, made upon valuable consideration by the life tenant of the strip of land here in question to the grantor of the plaintiff for railroad purposes, and an occupation thereof by the plaintiff railroad company for its use as a right of way for some period of time, the length of which is not clearly stated, prior to the taking possession of a part thereof by the defendant in the year 1904. Notwithstanding the grant by the life tenant was duly recorded in the year 1889, the life tenant and her husband, the latter being then trustee for the remaindermen and being invested with a power of sale under the trust deed, undertook to convey to the defendant, in the year 1904, certain lands adjoining the track and right of way of the plaintiff, the description thereof calling for a measurement in feet, which would include the right of way in part, although the deed calls for the right of way as a boundary. At some date subsequent to the deed of 1904, the life tenant being dead, the defendant erected certain buildings and fences, either wholly or partly

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