Carolian Timber Co. v. Holden

• Decision Date: 02 March 1912
• Citation: 73 S.E. 869,90 S.C. 470
• Parties: CAROLIAN TIMBER CO. v. HOLDEN et al.
• Court: South Carolina Supreme Court

73 S.E. 869

90 S.C. 470

CAROLIAN TIMBER CO. v. HOLDEN et al.

Supreme Court of South Carolina

March 2, 1912

Appeal from Common Pleas Circuit Court of Oconee County; G. W. Gage Judge.

Action by the Carolian Timber Company against W. V. Holden and another. From a judgment for plaintiff on a directed verdict defendants appeal. Affirmed.

J. R Earle and M. C. Long, for appellants. Haynsworth & Haynsworth, for respondent.

WATTS J.

This is an action of trespass upon a tract of land described in the complaint; both parties claiming under a deed bearing date March 13, 1866, and made by Robert Johnson to Artemissa Chapman. The action was tried before his honor Judge Gage, and a jury on March 2, 1911. After all the testimony was in, upon motion of plaintiff's attorney, the court directed a verdict for the plaintiff. Judgment was entered thereon, and defendants appeal on 10 grounds.

In the deed from Johnson to Chapman, the habendum reads, "unto Artemissa Chapman and the heirs of her body and assigns forever, reserving a life estate to her husband, Jackson Chapman." The language of the granting clause was similar. On January 11, 1890, Artemissa and Jackson Chapman, having at that time children, executed a deed purporting to convey this land to M. C. Newton, who, on January 16, 1890, conveyed it to W. J. Duffie. W. J. Duffie having died, his executors, in accordance with authority contained in his will, conveyed it to R. E. Bowen by deed, dated March 1, 1902; and Bowen on the same day conveyed it to the Benedict-Love Company, who in turn conveyed it to the Montvale Lumber Company on February 2, 1904. This company conveyed it to plaintiff on June 10, 1909. The defendants claim title under deeds made by children of Artemissa and Jackson Chapman, both of whom have died. There was evidence as to the alleged acts of trespass. The defendants by their answer to the complaint denied, for the purpose of this action, that the plaintiff had capacity to sue, and that plaintiff was the owner of the land, and that the defendants had trespassed on the land. W. V. Holden denied plaintiff's title to land, and asserted and set up title in himself, alleging that the Chapmans only had a life estate in the lands, and that after their death their children took possession of the land, and remained in possession until they sold to him, and that defendants had no notice of the claims of any one to the land until the commencement of this action. They further allege that the deed under which plaintiff claims was obtained by fraudulent representations from the Chapmans and for a nominal sum and inadequate price.

Exception 1 "assigns error and abuse of discretion for the court to force defendant to trial under the peculiar circumstances as set out in the case." We see no error on the part of Judge Gage in refusing to grant a continuance of the case on the showing made. Granting of a continuance is a matter entirely in the discretion of the judge; and the record shows no abuse of this discretion. This exception is overruled.

Exception 2: "That it was error for the court to admit in evidence the deed of Artemissa Reid Chapman and Jackson Chapman to M C. Newton, as it appears that W. J. Roark was the real party in interest who was purchasing the land, and that he was one of the subscribing witnesses thereto. That the said grantee never had any knowledge or gave her consent to the transaction, or no delivery of the deed was made." The deed from Artemissa and Jackson Chapman to Newton was witnessed by W. K. Stewart, and W. J. Roark. The testimony shows that, before the execution of the deed, Roark had bid off the land in question at tax sale, and that J. H. Newton had told him that he could sell the land to Duffie if he (Roark) would get a deed to it from the Chapmans to Mrs. Newton. Roark undertook to obtain the deed, and was to receive $50 from Newton. Roark was to have no interest in the land itself, but was to be paid upon the condition that he obtained the deed. When Mr. Haynesworth read the testimony of W. J. Roark, taken before the clerk of court under an order of Judge Gary, Mr. Earle objected and said: "We object to that We would like for the court to pass upon that question first as being the interest witness; further on in his testimony he was a beneficiary under this deed which he was undertaking to execute. I think the balance of his testimony which follows this shows that he is an incompetent witness, and we would like for your honor to pass upon this question." Judge Gage made no ruling. The plaintiff put up W. K. Stewart, the other subscribing witness, who testified that he saw the Chapmans sign the deed, and that he and W. J. Roark witnessed it. R. R. Roark, a son of W. J. Roark, testified for the plaintiff that...