Fogle v. Void, 16707

• Decision Date: 30 January 1953
• Docket Number: No. 16707,16707
• Citation: 223 S.C. 83,74 S.E.2d 358
• Court: South Carolina Supreme Court
• Parties: FOGLE et al. v. VOID et al.

Page 358

74 S.E.2d 358

223 S.C. 83

FOGLE et al. v. VOID et al.

No. 16707.

Supreme Court of South Carolina.

Jan. 30, 1953.

Hydrick & Hydrick, Orangeburg, for appellants.

L.A. Hutson, Orangeburg, for respondent.

STUKES, Justice.

Counsel for appellants and respondent agreed upon argument of this appeal that the only question for decision is whether the judgment for respondent should be affirmed upon the ground that he has acquired title to the land in dispute by adverse possession. 1 Code of 1952, § 10-2421 et seq., p. 992 et seq., Possession and Adverse Possession. The special referee and trial court so held and, as it is a legal issue, if there was any evidence which reasonably sustains the conclusion, it is binding upon this court. Harrison v. Lanoway, 214 S.C. 294, 52 S.E.2d 264. The case has become similar in its appellate aspect to McGowan v. Reid, 33 S.C. 169, 11 S.E. 685, in which it was said: "This case involves the features of both an action at law and an equitable action. In so far as it was sought to recover the land in dispute, it was an action at law, and although it was tried by the judge, a jury trial being waived, yet it was still a law case, and must be governed by the rules applicable to such cases, one of which is that the facts cannot be reviewed on appeal." Appellants' counsel also conceded that respondent is the owner of an undivided one-third interest by reason of the formal conveyance to him in 1946 by the widow of the deceased intestate whose land it was. The judgment therefore affects only the remaining two-thirds interest. The whole is a small tract of eighteen acres of farm land, under cultivation but without buildings or timber.

The facts found by the referee and lower court, which are supported by the evidence, are that the respondent, William M. Void, a distant relative of the appellants, purchased for $295.10, and had assigned to him, the mortgage of the land by Wash Void, deceased, in the year 1926, was thereupon put in possession by the widow and children of Wash, all sui juris, and has thenceforward continued in uninterrupted possession, cultivating it and claiming it as his own, except during the two years 1946 and 1947 when he was wrongfully (as it turned out) dispossessed by the sheriff under a purported tax title. Having neglected to pay the taxes for several years, a defective tax sale was had and the purchasers were put in possession by the sheriff. The respondent promptly brought an action to set the sale aside and recover possession of the land, in which he was successful and regained possession by judgment filed October 29, 1947, by which he was required to pay all past-due taxes.

Moreover, many of the appellants, including the one who testified, heretofore (in 1948) brought a similar action to this against the respondent, which he defended and counsel for plaintiffs in that action consented to an order of dismissal dated January 18, 1949. The present action was subsequently instituted by service of summons and complaint on October 13, 1950.

The answer of respondent alleged purchase of the land from the heirs of Wash Void in 1926 for the consideration of the amount due on the outstanding mortgage which he paid and procured assignment to him from the holder of the mortgage, whereupon the heirs of the former owner, quoting from the answer, "conveyed to and put the defendant in possession of the property," and he has since held possession as owner in fee, planting and improving the property; he further expressly pleaded adverse possession of over ten years, and of over twenty years. The prior action, similar to this, was also pleaded as a bar, as was the tax title litigation. It is reasonably inferable from the evidence that at the time (1926) of respondent's purchase of the mortgage, the land was worth no more than he paid.

Appellants mainly rely upon the authority of Ham v. Flowers, 214 S.C. 212, 51 S.E.2d 753, 7 A.L.R.2d 1124, with exhaustive annotation following the last cited report. However, distinguishing factual features are readily apparent in the case sub judice. There is no evidence that the respondent took possession as a mortgagee except the assigned mortgage, itself. He and the other parties are uneducated and appear to have acted without legal advice. It is otherwise inferable, as he claimed in his testimony, in effect, that he took the mortgage, which he purchased and had assigned to himself, as the...