Saluda Land &. Lumber Co v. Fort-ner

• Decision Date: 28 September 1931
• Docket Number: No. 13248.,13248.
• Citation: 160 S.E. 594
• Court: South Carolina Supreme Court
• Parties: SALUDA LAND &. LUMBER CO. v. FORT-NER et al.

160 S.E. 594

SALUDA LAND &. LUMBER CO.

v.FORT-NER et al.

No. 13248.

Supreme Court of South Carolina.

Sept. 28, 1931.

COTHRAN, J., dissenting.

Appeal from Common Pleas Circuit Court of Greenville County; W. H. Townsend, Judge.

Action by the Saluda Land & Lumber Company against J. M. Fortner and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

E. M. Blythe, of Greenville, for appellant.

C. S. Bowen and H. K. Townes, both of Greenville, for respondents.

STABLER, J.

In September, 1926, the plaintiff brought an action against the defendants to recover possession of a tract of land located in Cleveland township, Greenville county. By consent of all the parties, trial by jury was waived, and the case was heard by Judge Grimball, who, on August 9, 192S, filed a decree giving judgment for the defendants. Thereafter, and within two years, the plaintiff brought a second action, the present one, for the recovery of the same tract of land, the complaint being practically identical with that in the first action. See subdivision 2 of section 317, volume 1, Code 1922.

The defendants, by their answer, interposed a general denial, and pleaded "that these defendants purchased in 1926, from the State of South Carolina, the land described in the complaint, " and have been in lawful possession since that time.

Trial was had before Judge Townsend and a jury, at the February, 1930, term of the court of common pleas for Greenville county. Plaintiff's motion for a directed verdict was overruled, and the case submitted to the jury, who found that the defendants had title to, and possession of, 156 acres of the tract of 165 acres claimed by them. From judgment entered on the verdict, plaintiff appeals.

The appellant assigns error to the trial judge (1) in refusing to grant its motion for a directed verdict, and (2) in refusing to admit certain testimony. The motion for a directed verdict was made upon two grounds, the first of which was as follows: "The evidence is susceptible of no other inference than that plaintiff has proved title in itself and its predecessors in title to the grant to George F. Townes in 1831, and has, therefore, proved perfect legal title in itself; the defendant has proved only a grant to itself in 1926, and having offered no testimony tending to show that the State has been reinvested with title, of which it had divested itself in 1831, the grant to defendants is void and their occupancy is a trespass."

In 1831, the state made a grant of a tract of land to George F. Townes, a plat referred to therein showing the area to be 1, 600 acres. The appellant claims title in itself, through its predecessors in title, to the lands covered by this grant. The respondents, in 1926, obtained from the state a grant of 165 acres of land, which they claim adjoins the Townes grant on the south and southwest, but which appellant claims to be part thereof. The determination of this issue depends chiefly upon the length of the western and eastern boundary lines of the Townes grant.

The appellant asserts that the western line, the length of which is shown on the original plat as 140 chains, extends, as actually laid out on the ground, 180 chains to a proved corner, being 40 chains longer than as shown on the plat, and that when the eastern line is extended accordingly, that is, from 275 to 315 chains in length, the grant is shown to include the lands claimed by the defendants. The respondents contend that the original plat correctly shows the courses, distances, and corners of the grant, and that therefore the lands claimed by them are not included in the Townes grant, pointing out that while the Townes grant does not call for any lands in Pickens county, the appellant's survey carries it across the South Saluda river and takes in about 15 acres of land in that county.

While we have made a careful and painstaking examination of the testimony bearing upon this question, we deem a discussion of it unnecessary. The appellant introduced in evidence maps of the lands; and its surveyors and other witnesses gave evidence tending to establish and support its contention. On the other hand, the respondents offered as witnesses surveyors who had run the western line, and who testified that the original plat correctly showed that line, with a length of 140 chains. This testimony, along with that of other witnesses, tended to establish the claims of the respondents. In other words, the evidence on this point was in sharp conflict, and the issue was correctly submitted to the jury under proper instructions.

But the appellant further contends that, even if the court was right in overruling its motion for a directed verdict as to the first ground, there was error in not granting it upon the second ground, which was, in substance, that the evidence was susceptible of no other reasonable inference than that the plaintiff had shown title, in 1903, in Betty Orr, its predecessor, to the lands which the defendants claim were granted to them by the state in 1926, and that Mrs. Orr and her successors in title had possession of the lands in dispute for more than twenty-three years, thereby giving rise to a presumption of a grant to her by the state, which had the legal effect of an actual grant.

In 1903, the sheriff of Greenville county, under a judgment execution sale of the Townes grant, conveyed to Mrs. Betty Orr a tract of land "containing sixteen hundred acres, more or less, but upon a recent survey this tract has been found to contain twenty-six hundred acres, more or less, " etc. Appellant's contention is, for the present purpose, that even if the original Townes grant embraced only 1, 600 acres, the sheriff's deed, by reason of the survey therein referred...