Duren v. Strait
| Decision Date | 27 February 1882 |
| Docket Number | CASE 1145. |
| Parties | DUREN v. STRAIT. |
| Court | South Carolina Supreme Court |
1. In action against an executor upon an implied contract of the testator to pay for timber trees of the plaintiff cut and removed by the deceased, it is not essential to a recovery that plaintiff should prove title to the land from which the trees were cut; but the Circuit judge erred in instructing the jury that mere proof of plaintiff's possession of the land would entitle him to recover the value of the trees, unless the defendant showed a better right. The real issue involved was the ownership of the trees.
2. In such action, a plat found among the records of a prior cause between this plaintiff's father as defendant, (then holding in right of his son, a minor,) and another party as plaintiff, involving the title to the land from which the trees were cut, was competent evidence to show the extent of this plaintiff's claim under color of title.
Before FRASER, J., Lancaster, February, 1881.
Action by Thomas R. Duren against S. L. Strait, as executor of John Sinclair, deceased, begun in 1876 and revived in 1878. The opinion states the case.
Mr. Ernest Moore , for appellant.
Mr. R. E. Allison , contra.
This action was originally commenced against John Sinclair to recover damages for trespass upon land claimed as the property of the plaintiff. Sinclair having died pending the action, the plaintiff obtained an order to continue the action against the present defendant as the duly qualified executor of the last will and testament of the original defendant, John Sinclair. The executor demurred and his demurrer was sustained, but leave was granted to plaintiff to amend his complaint so as to convert the action into an action to recover the value of certain timber trees alleged to have been taken from said land by Sinclair in his life-time and converted to his own use.
It will be at once perceived that the present action differs very materially from the one originally instituted. The original action was in substance nothing more than the old action of trespass quare clausum fregit , the object of which was to recover damages for an injury done to plaintiff's possession , and, therefore, the title to the property damaged was not necessarily put in issue. Hence to maintain that action it was only necessary for the plaintiff to prove his possession and the trespass upon such possession, and unless the defendant, by the plea of liberum tenementum , put the title in issue, it would be unnecessary for the plaintiff to prove any title in himself. This being an action of tort, did not survive, and, therefore, upon the death of Sinclair the plaintiff's right of action of this character was gone, and his only remedy was that pursued by his amended complaint-to waive the tort and sue for the value of the property taken upon an implied assumpsit. To maintain this kind of action it was necessary for the plaintiff to allege and prove ownership of the timber trees; and this might have been done by showing title to the land from which the trees were cut, or by showing ownership of them in some other way, or such a possession of them as would invest him with the character of temporary owner; but mere proof of possession of the land from which the trees were cut would not entitle him to recover their value in an action ex contractu .
The plaintiff having obtained a verdict, the defendant moved for a new trial, which was refused, and from the judgment entered on the verdict the defendant appeals on several grounds.
The first position taken by the appellant is that the Circuit judge erred in refusing to charge the jury " that, in an action of this kind, under the pleadings, the plaintiff, in order to recover, must show actual paper title to the land from which the timber was taken or possession for the statutory period, with color of title, embracing the same," and on the contrary instructing the jury " that actual possession of said land, or constructive possession under color of title, for less than the statutory period is sufficient to enable the plaintiff to sustain the action in its present amended form, unless the defendant has shown title or possession by himself, or title...
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