Cathcart v. Matthews

Decision Date05 September 1916
Docket Number9496.
PartiesCATHCART v. MATTHEWS ET AL.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Fairfield County; F. S Sease, Judge.

Action by William M. Cathcart, as administrator, etc., of the estate of John H. Cathcart, deceased, against John P. Matthews continued after his death against J. E. Matthews and another as his executors. Judgment for plaintiff, and defendants appeal. Reversed.

McDonald & McDonald, of Winnsboro, for appellants.

Hanahan & Traylor and G. W. Ragsdale, all of Winnsboro, for respondent.

HYDRICK J.

This action was brought December 2, 1908, by plaintiff, as administrator of the estate of John H. Cathcart, against John P. Matthews, to recover $6,000, the rents and profits of a storehouse and lot in Winnsboro. At the first trial, in 1910, a verdict was directed for defendant, which was set aside on appeal. 91 S.C. 464, 74 S.E. 985, Ann. Cas. 1914A, 36. On the second trial, in 1912, plaintiff recovered judgment for $100, and defendant appealed. Matthews died in 1913, and the action was continued against his executors.

Divested of unnecessary verbiage, the material allegations of the complaint are: That John H. Cathcart was seised and possessed of the storehouse and lot described from November 2, 1867, until his death on January 1, 1908; that in 1871 he became insane, and remained so until death; that in 1884, while he was confined in the state asylum for the insane, Matthews entered and has used and occupied the premises ever since, the rental value of which is $6,000, which sum plaintiff is entitled to recover "for the use and occupation" thereof. The defendant pleaded a general denial, paper title in himself from the common source, bona fide purchase for value without notice, adverse possession, and the statute of limitations.

In 1866 Richard Cathcart, who is admitted to be the common source of title, executed a power of attorney to John H. Cathcart which authorized him to sell and make good titles to all his real estate. On November 2, 1867, in execution of the power, John H. Cathcart conveyed the lot in question, with some other real estate of Richard's to Mrs. M. J. Shaw, who was a sister-in-law of John's brother, Samuel. The consideration expressed was $1,500. On the same day Mrs. Shaw executed the following declaration of trust:

"I hereby acknowledge that I hold the real estate conveyed to me this day by Richard Cathcart for a full and valuable consideration paid by John H. Cathcart, subject to such uses as John H. Cathcart may direct, hereby binding myself to make such conveyances as John H. Cathcart may at any time require of me."

On June 22, 1874, Mrs. Shaw, by separate deeds, conveyed the lot in question, with some others, to Elizabeth Cathcart, the widow of John's half-brother, Robert, and the residue of the property that had been conveyed to her by John under the power to Mrs. Ellen Cathcart, Richard's widow. The consideration expressed in each deed was $800. On October 16, 1884, Elizabeth Cathcart conveyed the lot in question to Matthews. The consideration expressed and paid was $650. These deeds were in the usual and regular form, with full covenants of warranty, except those from Mrs. Shaw, who warranted only against herself, her heirs and assigns; and they were all duly recorded, except the declaration of trust, which was never recorded, nor was it mentioned or referred to in any of the deeds. It was found among the papers of John H. Cathcart after his death, as was also the deed from Mrs. Shaw to Elizabeth Cathcart.

In October, 1871, John H. Cathcart became insane, and was confined in the asylum until about Christmas of that year, when he was discharged and returned home and resumed the conduct of his business. He had a large mercantile business, and owned considerable real estate. He was taken to the asylum again in the latter part of 1873 or the early part of 1874, and kept there a short time. On June 30, 1874, on petition, filed in the probate court June 23d by his brother, Samuel and his brother-in-law, Dr. Madden, it was adjudged that he was a lunatic. His brother, Samuel, was appointed committee of his person and estate, and he was again committed to the asylum, where he was kept until May, 1875, when he was again discharged. In April 1876 on his own petition, it was adjudged that his mind was restored, the proceedings in lunacy were superseded and his committee was ordered to turn over to him his property. In April, 1883, he was again adjudged to be a lunatic and was sent to the asylum, where he remained until his death, with the exception of a leave of absence for a few weeks which he spent at home.

John McIntyre, a witness for plaintiff, testified that he occupied the storehouse in question, as tenant of John H. Cathcart, from about 1870 until 1874 or 1875; he could not give the exact date of the beginning or ending of his tenancy; that he rented from John H. Cathcart by the year, at $200 a year, and knew no one else in the transaction; that he paid him the rent when he was at home, and when he was in the asylum he paid it to the clerk of the court for him; and that he settled with him for the balance due him on his return from the asylum in May 1875, and turned the key over to him.

There appears to have been a short interval--exactly how long the testimony does not disclose--after McIntyre quit before Cathcart himself took possession, which he did in person in May, 1875, and retained possession, doing a small business therein, until he was sent to the asylum in April, 1883. From that time until Matthews took possession, October 16, 1884, the store was unoccupied, except for a few months in the summer of 1883, when Mr. D. R. Flenniken put some oats in it by permission of Dr. Madden, Cathcart's brother-in-law. There was testimony that, when Cathcart was taken to the asylum in 1883, he left some books in the store, and that they remained there until they were thrown out about the time Matthews took possession, and that until then the store was locked, and Cathcart had the key. But Mr. Flenniken and other witnesses testified that it was open, when he put his oats in it, and that he put a lock on the door, and, when he vacated, he gave the key to Dr. Madden.

It is difficult to determine from the allegations of the complaint what kind of an action this is or was intended to be. The allegations are most appropriate to an action for the recovery of rents, or for the use and occupation of the store. Plaintiff's attorneys so regard it. In their argument they say:

"Of course, the present action is not the technical action of trespass quare clausum fregit. It is an action for the recovery of rents and profits."

And, although the defendants, too, so regard it, they have not made the point that the evidence will not sustain such an action, except upon the ground that the evidence fails to prove that plaintiff's intestate had the legal title; their contention being that it is an action for rents and profits, and that such an action can be maintained only by the holder of the legal title.

While some of them are not material to this appeal, yet, as there will be another trial, where different contentions may be made, it is deemed best to call attention to some of the erroneous positions taken by counsel. An action for rents or for use and occupation of land rests upon contract, express or implied. Ryan v. Marsh, 2 Nott. & McC. 156; Boston v. Binney, 11 Pick. (Mass.) 1, 22 Am. Dec. 353; 39 Cyc. 850. Therefore, if this must be regarded as such an action, on proper objection taken, it must fail; for there is no evidence of any contract, nor of facts from which the law will imply one. The possession of Matthews was either rightful, under his deed, or became so by adverse possession for ten years, or it was tortious ab initio and remained so. If his deed conveyed the legal title to him, his entry and possession thereunder was not tortious; for the true owner of property who also has the right to possession may take possession whenever and wherever he can do so, without committing a breach of the peace. Simmons v. Parsons, 1 Bailey, 62; Myers v. Myers, Id. 306. The jury were so instructed in defendants' seventh request. But if his entry was tortious and remained so, Ryan v. Marsh, supra, squarely decides that an action for rents and profits or for use and ocupation cannot be maintained upon it.

The contention of defendants that an action for rents and profits cannot be maintained except by the holder of the legal title is clearly unsound. The right to the possession of land, whether legal or equitable, coupled with possession in fact, ordinarily carries with it the right to rent it and collect the rents. And an equitable right to possession, coupled with possession, is sufficient to sustain a legal cause of action for trespass thereupon. 38 Cyc. 1025.

Notwithstanding the action cannot be maintained, under the proof, as one for rents and profits, nevertheless, by a very liberal construction of the complaint, enough may be gathered to make out a cause of action for trespass. Title and possession are alleged in plaintiff's intestate and a wrongful entry thereupon by Matthews, which is sufficient for an action of trespass quare clausum fregit. Investment Co. v. Lumber Co., 86 S.C. 358, 68 S.E. 637, 30 L. R. A. (N. S.) 243. True, no damage is alleged, but the law will presume damage from the trespass.

Appellants contend that the action cannot be sustained as one of trespass quare clausum fregit, not on the ground that the right of action, being for tort, did not survive, for that objection is removed by the statute (section 3963, vol. 1, Code 1912), but on the ground that Cathcart was not in possession when...

To continue reading

Request your trial
13 cases
  • Brasington v. Williams
    • United States
    • South Carolina Supreme Court
    • 30 Noviembre 1927
    ... ... of action for every day during the whole period required to ... perfect title by adverse possession." Cathcart v ... Matthews, 105 S.C. 340, 89 S.E. 1021; Hill v ... Saunders, 6 Rich, Law, 67, 68; Sims v. Davis & Tygart, Cheves, 4, 34 Am. Dec. 581; ... ...
  • Battle v. DeVane
    • United States
    • South Carolina Supreme Court
    • 6 Julio 1927
    ...91 S.C. 231, 74 S.E. 506; Pierce v. Lumber Co., 103 S.C. 261, 88 S.E. 135; Dial v. Gardner, 104 S.C. 456, 89 S.E. 396; Cathcart v. Matthews, 105 S.C. 331, 89 S.E. 1021; Gore v. Lumber Co., 110 S.C. 474, 96 S.E. Robinson v. R. Co., 117 S.C. 537, 109 S.E. 143; Powers v. Rawls, 119 S.C. 134, 1......
  • Best v. Deason
    • United States
    • South Carolina Supreme Court
    • 12 Octubre 1923
    ...with the trustee in the wrong done a cestui que trust, that they are liable for the breaches of duty by the trustee." In Cathcart v. Matthews, 105 S.C. 329, 89 S.E. 1021, is held: "If the grantee purchased with notice of the trust, she took subject to it, and became a constructive trustee"-......
  • Johnson v. Pilot Life Ins. Co.
    • United States
    • North Carolina Supreme Court
    • 28 Febrero 1940
    ... ... Mitchell, 38 N.C. 535; Parker v ... Davis, 53 N.C. 460; Slaughter v. Heath, 127 Ga ... 747, 57 S.E. 69, 27 L.R.A., N.S., 1; Cathcart v ... Matthews, 105 S.C. 329, 89 S.E. 1021; Watson v ... Banks, 154 Ark. 396, 243 S.W. 844; Chaloner v. New ... York Evening Post Co., D.C., 260 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT