Ellen v. Ellen

• Decision Date: 17 October 1881
• Docket Number: CASE No. 1102.
• Citation: 16 S.C. 132
• Parties: ELLEN v. ELLEN.
• Court: South Carolina Supreme Court

16 S.C. 132

ELLEN

v.ELLEN.

CASE No. 1102.

Supreme Court of South Carolina.

Oct. 17th, 1881.

1. The failure of the Circuit judge to charge the jury more strongly than in the language of the request, cannot be assigned as error.

2. A party in possession of land under an adverse claim, conveyed to his son in fee, before ten years had expired, reserving to himself, by the deed, the use for life, and continued in possession until his death, thus completing a ten years' possession. Held, that until an adverse claim has continued for ten years, it does not ripen into a right, and, therefore, the deed of such claimant, within that time, could convey no title.

3. Nor could such a deed be sustained as a covenant to stand seised to uses.

4. The question involved being adverse possession by plaintiff's grantor, the trial judge restricted the plaintiff to proof of his grantor's acts of ownership, excluding all declarations as far as possible; but in reply to full proof by defendant of the grantor's admissions of permissive possession, plaintiff was permitted to prove the grantor's declarations accompanying his occupancy, to show adverse claim. Held, that there was no error in these rulings.

5. Tax receipts, as evidence of payment of taxes, are admissible to show a claim of ownership, but they do not sustain such claim, where it is shown that the taxes were paid under a contract with the real owner.

Before HUDSON, J., Marion, April, 1880.

Action commenced in September, 1879, by John H. Ellen, by Caroline M. Ellen, his guardian ad litem, against William B. Ellen, for the recovery of land. Verdict being for plaintiff, defendant moved for a new trial upon the same grounds, substantially, as were taken in his exceptions to the order of the Circuit judge overruling the motion. This order clearly states the case, and was as follows:

This was an action by John H. Ellen, the youngest son and only child of David Ellen by a second wife, against an elder half-brother, a son by the first wife, to recover the possession of a tract of about one hundred acres of land, of which the plaintiff had been ousted by the defendant, and forcibly kept out. David Ellen died at an advanced age in 1876, being about ninety years old.

The contest was a very bitter family quarrel, and gave rise to much testimony and a very animated contest in court. The land papers of old man David Ellen, as well as of W. B. Ellen, were lost and destroyed during the war by being carelessly buried during the passage of Gen. Sherman's forces through the country. Having not been recorded, much testimony was introduced to prove the existence and contents of deeds, and still more concerning the character of the very long possession of David Ellen of the territory in dispute-a fact which was conceded on both sides; the question being not as to the fact of his possession, but as to its character.

The plaintiff derived his title immediately from David Ellen, by deed, in 1871, in which the old man reserved a life-estate in the land to himself, and continued in possession up to his death, in 1876. This deed, coupled with possession of the land by his father for a period of about forty years anterior thereto, constituted the plaintiff's title. The defendant relied on an old grant to one Hyatt, a deed from Hyatt to Robert McKenzie, Sr., an alleged deed from said McKenzie to Zimri Ellen, which could not be produced, as it was alleged to be lost and had never been recorded, and the record copy of a deed from Z. Ellen to the defendant.

After a very tedious trial, lasting several days, and a very full argument of the case, the jury found a verdict for the plaintiff.

This motion is to set aside the verdict, and for a new trial upon the specified grounds.

The first ground rests in the misapprehension of counsel. I distinctly charged the jury that the existence of the alleged deed from R. McKenzie, Sr., to Zimri Ellen might be inferred by them from the testimony of Zimri Ellen, William B. Ellen, and the declarations of old man David Ellen; and it is a mistake in counsel when they say that the declarations of the old man, as testified to by witnesses, were withheld by me from the jury in my charge. These declarations were allowed to go to the jury as evidence against the plaintiff, his grantee.

2. Upon the second exception I have to remark, that I did instruct the jury, that if they believed from the testimony that the old man Ellen did hold, occupy and possess the land adversely to the defendant and the world, from 1865 to 1876, that a title would accrue to him as against the defendant, notwithstanding the fact that he, in 1871, made a deed of the land to the plaintiff, in which he reserved to himself a life-estate. That until the death of his father, in 1876, the plaintiff had neither the possession nor right of possession, but the undisputed continuance of the old man's possession until his death inured to the benefit of his title against the defendant, and to the remainderman would pass a title thus perfected, however imperfect it might have been in 1871.

In this I do not think there was error. The conveyance of itself could not break the possession unless the life-tenant had surrendered to the remainderman; so long as he held possession adversely, still owning the life-estate, the possession would be for the benefit of that estate, and was still the old man's adverse possession (if the evidence showed it to be adverse); and the character of the possession was strictly left to the jury to determine.

3. On the main question in the case, to wit, the character of old man Ellen's possession, there was great conflict of testimony, and it was left to the jury to determine its weight and preponderance. On this question the battle was chiefly fought, and the the jury having decided it in favor of the adverse possession of David Ellen, I do not think I should disturb the verdict.

4. The fourth exception questions the competency of declarations of David Ellen, deceased, as to the character of his possession, and his claim of title.

There was an earnest contest over the testimony on this point, and a strenuous effort on the part of the court to confine the contestants to the rule governing such evidence. In the evidence in chief for the plaintiff, he was confined to proof of acts of ownership alone; but frequently in bringing out this testimony, witnesses did, before they could be stopped, repeat declarations of David Ellen, accompanying his acts of ownership and possession,amounting to a claim of the land. But the rule confining him to the naked acts of ownership without declarations was followed by him and enforced by the court as rigidly as possible.

The defendant, in developing his case, was given the unrestrained privilege of introducing against the plaintiff the declarations of David Ellen, while in possession, to qualify that possession, and to show it to be permissive and not adverse to the defendant. These ran through a long series of years, just as did the acts of ownership established by the plaintiff. When the plaintiff came to reply to this testimony, he was allowed to do so by additional proof of adverse possession, and assertions of title and claim of title accompanying and attending these acts of ownership, and during his actual possession, to show the same to be adverse to defendant and all others.

It is difficult to conceive how the character of a man's possession of land, whether in his own right or in right of another, whether adverse or permissive, could ever be proved unless it be by his acts and words accompanying such acts while in possession and occupancy. As explanatory of that possession, we think, as part of the res gestoe, they are as admissible for, as well as against, one claiming under and through the alleged adverse possession. Especially should such be admissible for the claimant in reply to alleged declarations of permissive possession; and it was only when the plaintiff came to reply that he was allowed to prove the declarations of David Ellen, accompanying possession and occupancy going to show it to be adverse and not permissive.

5. This ground is likewise based on a misapprehension. I allowed the plaintiff to prove that his father always, during his long possession, paid the taxes on the land, and for this purpose did allow tax receipts to be given in evidence of the fact of payment of taxes. On this point I told the jury that payment of taxes on land by one in possession was not evidence of title, but was a circumstance going to show a claim of ownership, but that it would amount to nothing if it were proved to have been done under contract with the real owner.

The first testimony, according to my recollection, as to payment of taxes by D. Ellen, came out (perhaps on cross-examination) while the defendant's witnesses were being examined.

Upon mature consideration, I am constrained to deny the motion for a new trial on all the grounds, and the same is dismissed with costs.

Plaintiff deed of August 18th, 1871, was as follows:

Know all men by these presents, that I, David Ellen, of the county and State aforesaid, for and in consideration of the natural love and affection which I have and bear for my son, John Henry Ellen, have given and granted, and by these presents do give and grant unto my said son, John Henry Ellen, all my real estate as well as personal. The personal consisting of *** The real consisting of a tract or parcel of land in said county containing two hundred acres more or less, on which I reside, bounded by lands of *** Together with all and singular the rights, members, hereditaments and appurtenances thereunto appertaining or in anywise incident; to have and to hold all and singular the said premises to the said John H. Ellen, his heirs and assigns forever. Nevertheless reserving to myself the use and occupation of the above-named premises and personal property during the term of my natural life.

In witness whereof,...