Cave v. Anderson

• Decision Date: 21 August 1897
• Citation: 27 S.E. 693,50 S.C. 293
• Parties: CAVE v. ANDERSON.
• Court: South Carolina Supreme Court

27 S.E. 693

50 S.C. 293

CAVE v. ANDERSON.

Supreme Court of South Carolina

August 21, 1897

Appeal from common pleas circuit court of Barnwell county; James Aldrich, Judge.

Action by S.C. Cave against L. L. Anderson. From judgment for plaintiff, defendant appeals. Affirmed.

Bates & Simms, for appellant.

Patterson & Holman, for respondent.

JONES J.

This is an action for the recovery of a lot of land in the town of Elko, in Barnwell county, and also a tract in same county containing 252 acres. The complaint alleges that plaintiff is seised and possessed in fee of said premises, and that defendant wrongfully withholds same, to his damage $500. The answer is a general denial. At the beginning of the testimony, defendant's counsel consented that the plaintiff have judgment for the lot in Elko, leaving the 252-acre tract alone in dispute. The testimony in behalf of plaintiff tended to show that Mrs. Sarah Stansell was in possession of said tract of land for 15 or 16 years or more from the death of her husband, Edwin Stansell, up to her death; that she died in the latter part of 1891, leaving a will dated November 21, 1891, in which she devised all her property, real and personal, to Lloyd W. Stansell; and in said will the defendant was appointed guardian of said Lloyd (who was a minor), and also as executor. After the death of Mrs. Stansell the defendant went into possession of the land. Over defendant's objections, the return of the defendant to the probate office was introduced, showing that defendant had therein charged Lloyd W. Stansell with taxes paid by the defendant on the land in dispute. Then, without objections, a tax return was offered in evidence dated February 1, 1893 wherein the defendant returned this land and the lot in Elko for taxation as property belonging to the estate of Sarah Stansell. Lloyd died in 1893 or 1894, leaving the plaintiff his grandfather, as his only heir at law. It did not definitely appear when Edwin Stansell died, at which time Mrs. Stansell's possession began. According to the testimony, he died some time between 1873 and 1879. After the death of her husband, Mrs. Stansell lived on the land working it and renting it for several years, and then moved to the lot in Elko, but continued to rent out said tract. At the close of the plaintiff's testimony a motion for a nonsuit was made on the grounds that plaintiff had not connected his title with a grant from the state, nor proved 20 years' possession from which the presumption of a grant would arise, and that, having shown no color of title, plaintiff could only recover such of the land as he showed Mrs. Stansell had actual possession of, as to which there was no definite evidence. The motion was overruled.

1. In this there was no error. It is true, there was no proof of a grant from the state, and no proof of such length of possession--20 years--as would create a presumption of such grant, but there was some evidence that Sarah Stansell held the land adversely for more than 10 years previous to her death, and it is now well settled that a person who has held land adversely for 10 years has a good title by virtue of such possession which may be affirmatively asserted against one not protected by some disability. Harrelson v. Sarvis, 39 S.C. 14, 17 S.E. 368; Busby v. Railroad Co., 45 S.C. 312, 23 S.E. 50. There was also some evidence that defendant entered into possession of this land after the death of Mrs. Stansell, under her title, charging his ward, Lloyd W. Stansell, who held under Mrs. Stansell's will, with taxes paid on this land, and as late as February 1, 1893, returning this property for taxation as belonging to the estate of Mrs. Sarah Stansell, of which he was executor. This evidence tended to show that plaintiff and defendant claimed from a common source, and this is one of the well-established exceptions to the rule requiring plaintiff in an action to recover real estate to prove a perfect chain of title. See Drayton v. Marshall, 1 Mill, Const. Rep. 184; Hill v. Robertson, 1 Strob. 1; Geiger v. Kaigler, 15 S.C. 262. As said in Hill v. Robertson, supra: "It is against the moral policy of the law to permit one to dispute the title under which he took possession of the land." See, also, Johnson v. Cobb, 29 S.C. 377, 7 S.E. 601. There being some proof of actual possession of the land, or a part thereof, by Mrs. Stansell for at least 10 years, the extent to which she was entitled to recover could not be decided in the motion for a nonsuit, as that was a question for the jury under proper instructions as to what constituted adverse possession. Besides this, by the admission of defendant the plaintiff was entitled to have the verdict of the jury in his favor as to the lot in Elko. After the refusal of his motion for nonsuit, the defendant offered evidence for the purpose of showing that this land was conveyed to him by Edwin Stansell, husband of Mrs. Sarah Stansell, and defendant's father-in-law, by deed dated January 18, 1871, recorded January 20, 1871, and that Sarah Stansell's possession was permissive. The jury found for the plaintiff. The judgment entered thereon is conclusive here unless some error of law in the trial of the case is pointed out.

2. It is urged that the circuit judge erred in permitting testimony as to the taxes paid on the place and charged to L. W. Stansell. Such evidence was competent for what it was worth, as tending to show how the defendant entered into possession of the land. This evidence tended to show that at the date of the return the defendant held the land in dispute as the property of his ward, L. W. Stansell.

3. The fourth exception alleges that the circuit judge erred in holding that the land in dispute was devised to Lloyd W. Stansell by the will of Sarah Stansell, whereas it should have been left to the jury to determine whether the land in dispute was the land devised. We do not find that that circuit judge made any such ruling. The only reference to this matter that we can find is in the charge, as follows: "You have heard all the testimony in the case. Now, then, if she could devise and did devise it, as that will said she did, to Lloyd W. Stansell, the minor, then that will passed whatever interest, right, and title Mrs. Stansell possessed in those premises to Lloyd Stansell. Under that will the defendant, Anderson, was appointed executor and trustee. If he is in possession of the land now, how did he get it? Was it as executor and trustee in a fiduciary capacity as representing Mrs. Stansell's will. If so, then, as the will conveyed the property to Lloyd Stansell, and Anderson holding it for him,--for him in his representative capacity as representative and trustee,--upon the death of Lloyd Stansell, if he died without being married, without leaving a father, mother, brother, or sister of the whole blood or of the half blood, then the next would get it, and his grandfather, the plaintiff here, Mr. Cave, was his closest relative, then, under the law he would be the heir at law of Lloyd Stansell, and by operation of law it would pass to Mr. Cave," etc. It is manifest that in the above charge the judge did not undertake to decide, or even intimate an opinion upon, the question whether the land claimed to have been held adversely by Mrs. Stansell was the same land devised to Lloyd Stansell.

4. The fifth exception alleges error in holding that the tax receipt was an admission on the part of the defendant of right in the land in somebody else. We find in the case no evidence of such ruling except in his remarks refusing the motion for a nonsuit, where he says: "In regard to tax receipts while the tax is not a muniment of title, it is an evidence of fact for what it is worth; and in this case the receipt put in purports to be under a payment of taxes by the defendant,...