Duren v. Sinclair
| Decision Date | 17 March 1885 |
| Parties | DUREN v. SINCLAIR. |
| Court | South Carolina Supreme Court |
1. The necessary oath and notice being given, a certified copy of a recorded power of attorney, under which a deed was executed may be offered in evidence without other proof of the execution of the original.
2. The record book of the register of mesne conveyance is not admissible in evidence to prove a deed, not even as color of title, no oath of loss having been made nor notice given of intent to introduce.
3. Occasional acts of trespass by others, even though claiming under color of title, and an action of trespass during the period, would not necessarily prevent the ripening of an adverse possession into title.
4. Adverse possession must be peaceable, without force and violence, notorious and visible, and founded upon a claim of ownership; but it will not be broken by every trespass or claim by another inconsistent with a recognition of such adverse holding.
Before FRASER, J., Lancaster, October, 1883.
This is a continuation of the case of Duren v Strait , 16 S.C. 465, George Sinclair having been appointed administrator in place of S. L. Strait, executor removed from office. It was an action to recover the value of certain timber alleged to have been cut and carried from plaintiff's land by John Sinclair, defendant's testator.
The points of evidence raised are sufficiently stated in the opinion. The judge refused to charge the jury that any acts of ownership by others than the plaintiff over the land claimed under color of title within the statutory period or any action for trespass thereon against him within such period will prevent his possession from ripening into title; but charged that for a possession to be peaceable in the contemplation of law it must be without force or violence, and might be peaceable even if during the statutory period there were occasional acts of trespass by others, even if they were claiming under some color of title, or even if actions of trespass were brought in consequence of the adverse possession of the party who claimed the benefit of it.
The jury found a verdict for plaintiff and from the judgment entered thereon defendant appealed upon the following exceptions:
1. Because the presiding judge, it is respectfully submitted, erred in holding that a certified copy of the record of the power of attorney alleged to have been executed in 1858 by one William Robinson to Wylie R. Duren could, upon notice, be introduced as part of the chain of title without any proof whatever of the execution of the said paper by the said Robinson.
2. Because the presiding judge, it is respectfully submitted, erred in holding that the record of the deed by Abden Alexander, sheriff, to Alexander Craig could not be introduced by the defendant as a copy of the original which was more than thirty years old, upon proof of loss of original, & c., but on the contrary held that only a certified copy of such record could be introduced under the act and after notice.
3. Because the presiding judge erred, it is respectfully submitted, in holding that the said record of the deed by Abden Alexander, sheriff, to Alexander Craig could not be introduced as color of title for the defendant upon proof of claim under the original and loss of the same.
4. Because the presiding judge erred, it is respectfully submitted, in refusing to charge the jury that any acts of ownership by others than the plaintiff over the land claimed under color of title, within the statutory period, or any action for trespass thereon against him within such period, would prevent his possession from ripening into title.
5. Because the presiding judge erred, it is respectfully submitted, in charging the jury that the peaceable possession which would confer title was any possession held without a breach of the peace and not by strong arm or force of numbers, and that the possession would be peaceable and confer title although within the statutory period others claiming adversely should be in possession of a part of the same land under color of title to the whole.
6. Because the presiding judge erred, it is respectfully submitted, in charging the jury that possession by the plaintiff for ten years under color of title, although within the ten years others were in possession under color of title covering the whole of the same land and claiming adversely to plaintiff continuously, would give title to the plaintiff not only to the part in actual possession but also to the limits of his color of title.
Mr. Ernest Moore , for appellant.
Messrs. R. E. & R. B. Allison , contra.
The questions of law involved in this case, we think, can be understood without a statement of the facts. Such statement will therefore be omitted. The legal questions referred to are as follows:
1. Whether a certified copy of a power of attorney, under which a certain deed had been executed, and which had been recorded with the deed-both of which had been lost-could be introduced in evidence, the party offering it having made oath of the loss, and having given the ten days' notice as required, but offering no proof of its execution.
2. Whether the defendant or any party, in an action to recover real estate, relying upon adverse possession with color of title, can be allowed to sustain his color of title by introducing the books of the register of mesne conveyance, showing the record of a...
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