POPE
J.
On the
1st day of January, 1863, John G. King by his deed conveyed
to P. G. Benbow a tract of land situate in Clarendon county
in this state, and containing 500 acres, more or less, in
trust for his wife and children, in these words: "In
trust for the sole and separate use of Ann R. Benbow during
the term of her natural life or widowhood, and from and after
the death or marriage of the said Ann R. Benbow in trust for
the use of such child or children as may be alive at her
death or marriage, until they should arrive at the age of
twenty-one years or should marry, and then to be forever
discharged of the trust hereto expressed." This deed was
duly recorded in the office of the register of mesne
conveyances for Clarendon county on the 20th day of February
1867. In the year 1867 or 1868 the said P. G. Benbow filed
his petition for voluntary bankruptcy in the United States
district court for the state of South Carolina, under the act
approved March 3, 1867, and in his schedule of assets filed
in such proceedings he included the tract of land above
described. The said tract of land was purchased at the sale
of said estate of said P. G. Benbow by Henry B. Richardson at
the price of $50. Henry B. Richardson entered into possession
of said lands about January 1, 1869. Henry B. Richardson
conveyed said lands to E. W. Moise, who in turn conveyed them
to David Levi. In 1879 P. G. Benbow, as trustee for his wife
and children, brought an action against the said Henry B
Richardson to recover said lands as trustee under the deed of
trust executed by King in 1863, but was nonsuited before
Judge Fraser in 1881. Thereafter the said P. G. Benbow
brought his second action as such trustee without paying the
costs of the first action; and in this action, on October 22
1884, his honor, Judge Kershaw, because such costs had not
been paid, dismissed the complaint. The said P. G. Benbow
departed this life in March, 1895. Frank M. Benbow was his
oldest son. On May 15, 1895, Frank M. Benbow (as trustee) and
Mrs. Ann R. Benbow, as plaintiffs, brought an action to
recover this tract of 500 acres against the defendant, David
Levi, alleging the trust deed, the death of P. G. Benbow, and
that the plaintiff Frank M. Benbow was his oldest son, upon
whom the law devolved the office of trustee made vacant by
the death of P. G. Benbow, and upon whom, as such trustee,
the law devolved the legal title to said premises, but that
the plaintiff Ann R. Benbow has an equitable estate for life
in said lands, and that the defendant, David Levi, is in
possession of said lands, claiming some interest therein, and
unlawfully withholds possession of the same from the
plaintiffs. The prayer of the complaint is for possession of
said premises and $500 damages, and for such other and
further relief as unto the court may seem just and proper. To
this complaint David Levi made answer as follows: "The
defendant above named, answering the complaint herein, says:
(1) For a first defense: That he denies each and every
allegation contained in each and every paragraph of the
complaint. (2) For a second defense: That neither the
plaintiff, his ancestor, predecessor, nor grantor, was seised
or possessed of the premises described in the complaint
within ten years before the commencement of this action. (3)
For a third defense: That at the time of the commencement of
this action the defendant was, and still is, seised in fee of
the premises described in the complaint, except one hundred
and nine acres thereof, known as 'swamp land,' which
is owned by other parties, not connected with this action.
(4) For a fourth defense: That the cause of action as stated
in the complaint did not accrue within ten years before the
commencement of this action. (5) For a fifth defense: That
the defendant, his grantors, and their grantors and
ancestors, have held and possessed the premises described in
the complaint
adversely to the pretended claim of the plaintiff for ten
years last past before the commencement of this action. (6)
For a sixth defense: That the defendant, his grantors, and
their grantors and ancestors, have held and possessed the
premises described in the complaint adversely to the
pretended claim of the plaintiff for twenty years last past
before the commencement of this action. (7) For a seventh
defense: That the defendant and those under whom he claims
entered into possession of the premises described in the
complaint under claim of title exclusive of any other right,
founding such claim upon a written instrument as being a
conveyance of the premises described in the complaint, and
that there has been a continued occupation and possession of
said premises included in said instrument by defendant and
those under whom he claim for more than ten years preceding
the commencement of this action. (8) For an eighth defense:
[Same as seventh, except 20 years' instead of 10
years' possession.] (9) For a ninth defense: That the
cause of action stated in the complaint did not accrue within
twenty years before the commencement of this action. (10) For
a tenth defense: That the plaintiff cannot now have or
maintain this action: First. Because P. G. Benbow, the
alleged trustee referred to in the complaint, commenced and
prosecuted this action in this court against Henry B.
Richardson and others, and that the said action was
terminated at the October, 1880, term of this court by a
judgment of nonsuit against the plaintiff, and that judgment
was duly entered thereon by the clerk of this court on the
21st day of October, 1884, for the sum of one hundred and
forty-five and 5/100 dollars, the costs of said action, which
sum of money is yet unpaid. That the said action was for the
recovery of the tract of land described in the complaint, and
that said Henry B. Richardson was then in possession thereof,
and had been for more than ten years previous thereto in
possession of the same, holding it adversely to all the
world, claiming the same as his own, and that such claim was
fully recognized and acquiesced in by said P. G. Benbow for
more than ten years before the commencement of said action,
and that said Henry B. Richardson conveyed the said land to
E. W. Moise, who thereafter conveyed the same to this
defendant; and by reason of the facts so stated this
defendant has succeeded to all the rights which the said
Henry B. Richardson and E. W. Moise had against the said P.
G. Benbow, trustee. Second. Because the said P. G. Benbow,
commenced another action as trustee against the said Henry B.
Richardson and others for the recovery of said land described
in the complaint, and that said action was stricken from the
dockets of this court without objection from the said P. G.
Benbow, trustee and plaintiff, at the October, 1884, term of
this court, and judgment was entered in this court...
