Felder v. Fleming
| Decision Date | 28 September 1982 |
| Docket Number | No. 21790,21790 |
| Citation | 295 S.E.2d 640,278 S.C. 327 |
| Court | South Carolina Supreme Court |
| Parties | Mack FELDER, Appellant, v. Billie S. FLEMING, Minnie Wells, York Mack, Rosenna Mack, Honaker Mack, Hester M. Burgess, alias Hester M. Buggas, Henry Mack, Henrietta M. Jenkinson, Sarah Huff, Unity Mack, Mancie Felder, Mary Felder, Arthur Loyd Lawrence, Abram Lawrence, Ruth Lawrence, Margaret Lawrence, Adrena Lawrence, Aleck Lawrence, Tee Felder, Bentley McNullage, Isiah Felder, Jr., Lily May Scott, Pearl Murray, Margaret McClary, Daisy Ruth Chandler, James Felder, Suzie May Robinson Jones, Rosa Robinson Mack, Corrine Robinson Jones, Lucille Robinson Collins, Preston Robinson, Inella Felder, Rosa Mae Felder, Queen Ester Felder, Josephine Felder, Dranford Felder, Dorothy Mae Felder, Luella Felder, Paul Felder, Siliah Felder, Lueanna Felder, John Doe, Representing any other unknown persons having or claiming to have any right, title or interest in and to the lands of the estate of Joseph Mack described in the Complaint herein, and Richard Roe, representing any minor, incompetent, or other person or persons under disability having or claiming to have any right, title or interest in and to said lands, Respondents. |
Edward V. Atkinson, of Atkinson, Davis & Newman, Sumter, for appellant.
Ralph F. Cothran, of Cothran & Cothran, and Ray E. Chandler, of Coffey, Cooper & Chandler, Manning, for respondents.
Appeal is from a judgment of the lower court denying partition of a tract of land among tenants in common on the ground that one of the cotenants and his heirs had held the land adversely for over twenty (20) years so as to constitute an ouster of the other cotenants.
This is an equity matter, and the appeal is from concurrent findings by the Special Referee and the Circuit Judge. The extent of our review is accordingly governed by the well settled principle that concurrent findings of the Special Referee and Trial Judge will not be disturbed by this Court unless found to be without evidentiary support or against the clear preponderance of the evidence. Ex Parte Guaranty Bank and Trust Company, 255 S.C. 106, 177 S.E.2d 358.
The lands in issue were owned by Joseph Mack who died in 1913, leaving a will in which he devised the property to his five (5) children: York Mack, Sr., John Mack, Peter Mack, Henry Mack, and Rosa Mack Felder, as tenants in common. All of the children of Joseph Mack are deceased, with no record of any probate of their interests in the land.
Henry Mack apparently left children, but none of these children or their heirs appear as parties to this action and are not mentioned in the referee's report.
After the death of their father and prior to 1935, York, Sr., Peter, and John Mack lived on the property in their respective homes which each had constructed on separate portions of the land. Prior to 1935, John Mack died without issue; and Peter Mack moved to Buffalo, N. Y., never returning to live on the property. Peter also died without issue. Rosa Mack Felder had married and resided in a community nearby.
After Peter Mack left the property, York Mack, Sr., moved his family into one of his brother's home and began cultivating the entire tract of land. He and his descendants have occupied the land since that time and his descendants now claim absolute ownership through adverse possession. This claim was upheld by the lower court and is challenged in this appeal. We think the lower court was in error and, therefore, reverse.
York Mack, Sr., occupied and farmed the tract of land until his death in 1945. Witnesses from the community testified that they knew it as the "York Mack place." After the death of York Mack, Sr., his widow, Louvenia, and son continued to live on the land, renting portions thereof and retaining the proceeds. Later, Louvenia's daughter, Rosenna Mack, and granddaughter Joanne Nelson, lived with her. They paid all taxes on the land and retained all proceeds from its use. Some years before her death Louvenia Mack moved to Fayetteville, North Carolina. Rosenna Mack and her daughter Joanne remained on the land until fire destroyed the house in the mid 1960's, at which point they moved into Manning, South Carolina, leaving the land unoccupied.
In 1968 or 1969, Louvenia Mack and eight (8) of her children executed a deed to Society Hill AME Church purporting to convey to the church a portion of the subject lands. After Louvenia's death, eight of the York Mack children executed deeds purporting to convey a portion of the land to Billie S. Fleming who has been made a party to this action. All of the foregoing deeds recognize the existence of other heirs by reciting that one of the boundaries to the parcel sold is adjoining lands "of the heirs of Joseph Mack."
There is testimony by Joanne Nelson, granddaughter of Louvenia Mack, that she lived on the land for a number of years with her grandmother and that there would never have been any objection to plaintiff-appellant or any other heirs of Joseph Mack coming upon and using the property.
Rosa Mack Felder apparently had eight (8) children, of...
To continue reading
Request your trial
-
Freeman v. Freeman
...adverse possession, he must overcome the strong presumption that he holds possession in recognition of the cotenancy. Felder v. Fleming, 278 S.C. 327, 295 S.E.2d 640 (1982); Horne v. Cox, 237 S.C. 41, 115 S.E.2d 513 (1960). Actual ouster of a tenant in common by a cotenant in possession occ......
-
Furlow v. Macdonald (In re), C/A No. 19-06512-JW
...adverse possession, he must overcome the strong presumption that he holds possession in recognition of the cotenancy. Felder v. Fleming, 278 S.C. 327, 295 S.E.2d 640 (1982) ; Horne v. Cox, 237 S.C. 41, 115 S.E.2d 513 (1960). Actual ouster of a tenant in common by a cotenant in possession oc......
-
Fender v. Heirs at Law of Smashum
...hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable. Felder [v. Fleming], 278 S.C. [327] at 330, 295 S.E.2d [640] at 642 [(1982)]. Only in rare, extreme cases will the ouster by one cotenant of other cotenants be implied from exclusive posse......
-
Johnson v. Scott
...hostile to the rights of the other cotenants while the intention to disseize is clear and unmistakable. Felder v. Fleming, 278 S.C. 327, 330, 295 S.E.2d 640, 642 (1982). "Only in rare, extreme cases will the ouster by one cotenant of the other cotenants be implied from exclusive possession ......