Bradley v. Drayton

• Decision Date: 06 February 1897
• Parties: BRADLEY v. DRAYTON
• Court: South Carolina Supreme Court

26 S.E. 613

48 S.C. 234

BRADLEY v. DRAYTON

Supreme Court of South Carolina

February 6, 1897

Appeal from common pleas circuit court of Charleston county; Benet Judge.

Ejectment by W. L. Bradley against Bettie Drayton. From a judgment for plaintiff, defendant appeals. Affirmed.

The presiding judge charged the jury as follows:

"Mr. Foreman and Gentlemen: The plaintiff brings his action against the defendant to recover possession of a tract of land on which he alleges Bettie Drayton is now living, and in possession of, and unlawfully withholding it from him; and he claims that he is the true owner of the land, and is entitled to possession. He claims that the fee-simple title is in him, and that she has no right to withhold possession from him. The complaint asks for damages, but I have just heard counsel say that he does not press that. Therefore you will not consider that, but only consider as to who is in possession of this tract of land. The defendant denies that Bradley has the fee-simple title in him. She alleges, in her defense, the grounds upon which the claim is set up: That in 1883 her husband gave a mortgage to G. A Douglas, of Abbeville, for fifty dollars, upon this tract of land, and that mortgage came into possession of Mr. Wilkinson in 1891, and that then there was some agreement between her and Mr. Wilkinson and the boy about the hire of the boy William Bradley; and she alleges that the boy's services (his wages) were to go as a credit on the mortgage debt, and that she also offered to pay the $23 still due after his wages; that that was the agreement; that she was ready to pay that,--to pay off the debt; and that Mr. Wilkinson would not accept the $23; and that she still has an interest in the land. You have heard the testimony as to the various mortgages given by Lewis Drayton. You recollect that the G A. Douglas mortgage contained a power of sale; that is, that the mortgagee had the right, after the conditions were broken, to advertise and sell without any proceedings in the court room. That is what is called a "Scotch mortgage,"--a self-foreclosing mortgage. Under that mortgage, it seems that Mr. Wilkinson advertised the land for sale on sales day in December, 1893, and that at that sale (December, 1893) Mr. Wilkinson, acting as attorney in fact for the plaintiff, Bradley, made a deed to himself, L. H. Wilkinson, dated 31st of March, 1894, and that on the 23d of April, 1894, Mr. Wilkinson again, as the grantee of the last deed, now becomes the grantor in the next deed, and makes a deed to Bradley; and Bradley says that under that deed he had a fee-simple title in him, and is now entitled to be put in possession of the land. I charge you that the plaintiff in all cases on the civil side of our courts, before he can recover a verdict, he must do so by a preponderance of the evidence on the issues involved, by which is meant that he must satisfy the minds of the jury by the greater weight of the testimony. The measure of proof is not as it is in the criminal court. A jury in the criminal court must be satisfied beyond a reasonable doubt before they can convict the defendant; but in this court the jury must be satisfied that there is more evidence in the plaintiff's favor than against him,--that there is heavier testimony, weighed in imaginary scales, in the plaintiff's favor,--before he can recover. He must satisfy the jury by the greater weight of the testimony, and, if the testimony fails, he has failed. And in a land case, if he recovers a verdict, he must recover only upon the strength of his own title, and not upon the weakness of the title of the defendant. In a case of this nature, a defendant is not called upon to open his month. He may sit silently in court, and not say a word, and it is for the jury to say whether the plaintiff has established his case by the greater weight of the testimony. The silence of the defendant is not to work in favor of the plaintiff at all. In a case of this character, the plaintiff must establish, by the greater weight of the testimony, either that his title can be traced back to a grant from the state since the Revolutionary War, or from the crown before the Revolution; and, if that can be shown, he has given abundant proof that the title is in him. The law has directed that twenty years' adverse possession presumes a grant; and that is that if Bradley here traces to Lewis Drayton, and if Bettie Drayton's does not trace to him, as a common source, then Bradley must satisfy you by the preponderance of the evidence that Lewis Drayton's possession was equal to a title traced back to a grant. Is it testified that he went into possession in the year 1872, and went out of possession in the year 1889? Is there any other testimony as to his possession in Lewis Drayton? If that is not proved, then, aside from the common source, the plaintiff could not recover on that; but if he can trace it back for twenty years from the time he went on the property, and took possession of it, he can recover. But if Bettie Drayton, the defendant, also claims under Lewis Drayton, which means that both Bettie Drayton and William Bradley both claim back to Lewis Drayton, then it is not necessary to inquire how long Lewis Drayton held, but, if they both claim from Lewis Drayton, which has the best title? If a common source is established by the testimony, that will relieve the jury of the necessity of going further back. You recollect that a motion for a nonsuit was made on the ground that it was not shown that there was a common source. I could not say then, as I do now, but I do say now, that that is the question for you, for it seemed to me that there was some evidence on that point, that they both claimed from Lewis Drayton. That is the question for you to decide. It is argued that Bradley traced from Lewis Drayton, but that Bettie Drayton did not. That is for you to decide. As I recollect the reading of the pleadings, she said she had an interest in the tract of land. She does not allege who she traces from at all. It is argued to you that she was living with Lewis Drayton during those years. It is for you to say whether Lewis Drayton or Bettie Drayton was the owner of the land. There are three mortgages put in evidence here,--one to Douglas, one to Hill & Co., and one to Barnwell. Do those mortgages contain renunciations of dower by this woman, and, if so, would that show that she considered this

land to be in Lewis Drayton, and that she had a dower in it? That is for you to say, and you must be satisfied by the preponderance on that point whether they trace from a common source of not. If they do not trace from a common source, then he cannot recover; but, if traced from a common source, then you will ask the question, has he shown that he is entitled to recover on the strength of his own title as against her? You have heard the testimony as to how Mr. Wilkinson got possession of the land. Did he purchase the land at the sale made under the mortgage? Did he make title afterwards to Bradley? Did Bradley pay him afterwards by his wages, and give him a note and mortgage for $23? Is the testimony of Bradley on the stand that he was to get his money back if he did not recover the land,--did that mean that the title was a warranty deed, or that he was running the risk in court of getting the land, and, if not, it would be no risk for him, that he would get his money back?

"The facts are in a small compass, and are all for you, gentlemen. The law I have endeavored to give to you. Counsel for the defendant, Bettie Drayton, has asked me to charge you the following, which I have already charged you, but I will charge it to you again: '(1) That it is incumbent on the plaintiff to establish his title by the preponderance of the evidence, and he must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of the defendant. (2) That, in order for the plaintiff to recover, he must prove a grant from the state, or such a possession in Lewis Drayton as will presume a grant from the state, to wit, twenty years' adverse possession.' I have so charged you that that is the law. You will consider all of the testimony, and give what weight you think each witness' testimony is entitled to, and find a verdict as the facts will justify in your opinion. If you find for the defendant, say: 'We find for the defendant.' If you find for the plaintiff, you will say: 'We find for the plaintiff the land in dispute."'

Mr. Cason asked the court to charge as to common source.

The Court: "Yes, sir; of course, if there is not a common source, the plaintiff must recover on the strength of his own title."

Mr. Cason asked the court to charge as to adverse possession.

The Court: "That question of twenty years' adverse possession is for you, gentlemen of the jury, and that is possession held against the world. If Lewis Drayton entered in possession in 1872, the law at that time was that twenty years' possession was necessary to prove adverse possession; but in 1873 the law was changed, making ten years' adverse possession necessary to be proved. If you are satisfied from the testimony, not from any presumption of your own, but from the testimony, that the possession of Lewis Drayton [began] in 1872, before the act was passed, twenty years would be sufficient; but, if adverse possession did not commence until after 1873, then ten years' adverse possession would be sufficient."

Mr. Cason requested the judge to charge the jury as follows: "If the jury believe that the plaintiff and defendant claim from Lewis Drayton, the plaintiff is entitled to the verdict, if he shows the better title."

The Court: "That is what I have charged you before gentlemen. If he has satisfied you by the...