Battle v. DeVane

• Decision Date: 06 July 1927
• Docket Number: 12231.
• Parties: BATTLE v. DE VANE et al.
• Court: South Carolina Supreme Court

138 S.E. 821

140 S.C. 305

BATTLE v. DE VANE et al.

No. 12231.

Supreme Court of South Carolina

July 6, 1927

Appeal from Common Pleas Circuit Court of Horry County; M. M. Mann Judge.

Action by M. J. Battle against J. M. DeVane and others. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded.

Lide & McCandlish, of Marion, for appellant.

Robert B. Scarborough, of Conway, Cordie Page, of Columbia, and Ford & Suggs, of Conway, for respondents.

COTHRAN J.

Action to enjoin the defendants from trespassing upon a certain described tract of land in Horry county, containing 75 acres more or less.

It appears that the defendant B. L. Soles claims title to the land in dispute; that the defendant J. M. DeVane is a grantee from Soles of the timber rights upon the land; and that the defendant Z. G. Hall is an employee or agent of the defendant DeVane in his timber operations.

The complaint alleges that the plaintiff is the owner in fee simple and in possession of the tract of land, and that the defendants DeVane and Hall are about to enter upon it for the purpose of cutting and removing the timber therefrom, and that the defendant Soles, who claims the title is aiding and abetting his codefendants in such trespasses.

The defendants DeVane and Hall answered the complaint denying the material allegations thereof, alleging a conveyance of the timber rights from Soles to DeVane, and setting up a plea of res adjudicata by reason of the fact that heretofore the defendant Soles brought an action against a lumber company to enjoin it from cutting and removing the timber on the land which it claimed the right to remove under a deed from the plaintiff Battle and his coheirs; that he participated in the trial of that case although not a formal party and is bound by the verdict and judgment rendered therein in favor of Soles.

The defendant Soles answered the complaint alleging title to the land under a deed from M. D. Soles, subject to the timber conveyance to DeVane, and claiming adverse possession for 10 and 20 years.

The case was tried before his honor, Judge Mann, and a jury April, 1925, and resulted in a verdict for the defendants. The plaintiff has appealed.

The land in question is a small tract containing 65.9 acres, lying north of Cedar creek in Horry county. It is a part of a 500-acre tract granted to one Drury Pittman by the state on April 2, 1798. He conveyed the whole of it to Henry Elliott November 11, 1808. Henry Elliott conveyed 400 acres of the 500-acre tract to John Wise August 7, 1816.

The plaintiff and the defendant B. L. Soles, each claiming title to the 65.9 acres in controversy, trace their respective titles through the conveyances just described back to the common source, Drury Pittman.

From the point of the conveyance from Henry Elliott to John Wise, August 7, 1816, the respective chains of title diverge.

The plaintiff traces his title from John Wise in this way: (1) The will of John Wise devising the tract to his daughter, Nancy Strickland. This will is dated March 25, 1853, but was never probated, having been found in the possession of one McDaniel, a grandson of John Wise. (2) The devolution of the title from Nancy Strickland to her daughter and only child, Joanna, who was the wife of one E. J. M. Todd. (3) Conveyance by E. J. M. Todd, upon which Joanna Todd renounced her dower, to Luke Floyd, Jr., September 27, 1884. (4) Conveyance by Luke Floyd, Jr., to James Battle, father of the plaintiff, March 1, 1899. (5) Conveyance by judge of probate to J. R. Battle, M. J. Battle, and F. L. Battle, heirs at law of James Battle, in the settlement of his estate November 30, 1917. (6) Conveyance by J. R. Battle and F. L. Battle to the plaintiff, M. J. Battle, January 28, 1918.

The defendant Soles traces his title from John Wise, in this way: (1) Conveyance by John Wise to James Wise December 20, 1850. (2) Conveyance by James Wise to Nancy Strickland January 4, 1868. (3) Conveyance by Nancy Strickland to John Grainger and W. J. Sarvis January 22, 1868. (4) Conveyance by John Grainger (half interest) to Nancy Strickland December 28, 1868. (5) Conveyance by Nancy Strickland to Mary Soles July 24, 1869. (6) Conveyance by W. J. Sarvis to Nancy Strickland (half interest) December 10, 1869. (7) Conveyance by Sheriff to W. W. Sellers November 9, 1871. (Sale under execution against James Wise, May 2, 1870.) (8) Conveyance by W. W. Sellers to Nancy Strickland December 6, 1872. (9) Conveyance by Nancy Strickland to M. D. Soles May 3, 1922. (10) Conveyance by M. D. Soles to B. L. Soles October 5, 1922.

(Note.-It does not appear how the property which had been conveyed by James Wise to Nancy Strickland in 1868 could be sold under an execution against James Wise in 1870, or what became of the half interest conveyed by Nancy Strickland to Mary Soles July 24, 1869. It may be that the execution against James Wise was issued upon a judgment existing at the time he conveyed to Nancy Strickland. If so the intermediate conveyances numbered 3, 4, and 5 may bed disregarded.)

It appears that on the south side of Cedar creek there lies a body of land covered by grants to Richard Lewis of about 1,000 acres, in 1796. Upon a part of it James Wise built his home and lived. The contention of the plaintiff is that the deeds upon which the defendant Soles relies to establish his title cover this land and not the land on the north side covered by the Drury Pittman grant. The controversy then is as to the location of the land, and whether covered by the defendant's chain of title or that of the plaintiff. Upon this issue much testimony and many plats were introduced. Testimony also was offered by each party tending to establish his possession of the disputed area. With these issues, of course, we have nothing to do.

I. The appellant contends that his honor, the presiding judge, committed error in holding that the plaintiff had failed to make proof of a good paper title.

In view of the patent break in the plaintiff's chain of title in the devolution from John Wise to Nancy Strickland, a link which he attempted to establish by the production of the will of John Wise, we think that there was no error in the judge's ruling. The will was never probated, and it is not contended by counsel for the plaintiff that an unprobated will can constitute a proper link in the chain. He says: "The will was never probated, and for this reason the court held that it could only be introduced as color of title and to show the extent of the plaintiff's claim. This ruling was not excepted to." Counsel appears to have been content with this ruling, which admitted the will in support of his claim to adverse possession.

It is suggested by counsel for the plaintiff that if the will should be entirely excluded, Nancy Strickland would take the land by inheritance. It appears that John Wise had three daughters, Alice, nancy, and Margaret, and left a widow, Nancy. Margaret married McDaniel; Nancy married Strickland; there is no record of Alice. So that if John Wise died intestate the property would have descended to these heirs at law. Besides, the will gives a life estate to the widow and the fee as joint tenants to the three daughters.

There is another break in the plaintiff's chain, in the devolution from Nancy Strickland to her daughter Joanna, who married Todd. It does not appear that Joanna was the only child of Nancy Strickland or that her husband was not alive at her death. The claim that Joanna inherited from her mother has not been established. There is still another break in the plaintiff's chain-the devolution from Joanna Todd to Luke Floyd, Jr. The plaintiff relies upon a conveyance from E. J. M. Todd, the husband of Joanna, to Luke Floyd, Jr., upon which conveyance Joanna renounced her dower. We do not understand that the case of Wilkins v. Baker, 77 S.C. 244, 57 S.E. 851, cited by appellant's counsel, holds that the renunciation of dower by a married woman, upon a conveyance by her husband of land which belonged to her, conveys the legal title of the wife to a grantee of the husband. As far as it goes is to hold that under certain circumstances the wife may be estopped from asserting her title, which of course presupposes that the title is still in her.

The ruling of his honor, the presiding judge, specifically reserved to the plaintiff the right to establish adverse possession.

II. The appellant further contends that his honor, the presiding judge, committed error in excluding evidence of the mortgage from James Wise to W. W. Sellers.

The defendant Soles claims under the deed executed by James Wise to Nancy Strickland dated January 4, 1868. Although the deed from John Wise to James Wise conveys land covered by the Lewis and the Drury Pittman grants, the deed from James Wise to Nancy Strickland refers only to the Lewis grant; it conveys:

"All that plantation or tract of land containing 370 acres, more or less, being part of two surveys granted to Richard Lewis, Sen.; one the 1796 February the 9th other the 17 day of January 1815."

The defendant contends that this deed from James Wise to Nancy Strickland conveys also the land in the deed from John Wise to James Wise covered by the Drury Pittman grant, as well as that covered by the Lewis grant. The defendant concedes that James Wise had title to the land in dispute covered by the Pittman grant; in fact it is a link in his chain. If the deed to James Wise conveyed the land in dispute covered by the Pittman grant, it will be presumed that he continued in possession until the contrary appears.

In order to sustain his contention that the deed from James Wise to Nancy Strickland did not cover the land in dispute, a part of the Pittman grant, the plaintiff offered in...