Folk v. Graham

• Decision Date: 28 November 1908
• Citation: 62 S.E. 1106,82 S.C. 66
• Parties: FOLK v. GRAHAM.
• Court: South Carolina Supreme Court

62 S.E. 1106

82 S.C. 66

FOLK v. GRAHAM.

Supreme Court of South Carolina

November 28, 1908

Appeal from Common Pleas Circuit Court of Bamberg County; R. C Watts, Judge.

Action by John H. Folk against Benjamin Graham. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

R. C Holman and B. T. Rice, for appellant.

James Aldrich Wyman, for respondent.

POPE C.J.

The plaintiff by his amended complaint alleges that on the 26th day of February, 1901, the defendant, for a valuable consideration, conveyed by deed, to the plaintiff in fee simple, a certain tract of land situate in Bamberg county containing 1,276 acres, more or less, while the grantor only warrants 1,000 acres. That the deed contained the usual covenant: "And I do hereby bind myself and my heirs," etc.; that the plaintiff lawfully entered upon a part of the said premises and became seised thereof accordingly, but a portion was in the possession of one Mrs. Julia R. Carroll, who claimed the same as her own; that the defendant has not warranted and defended that portion occupied by Mrs. Carroll; that plaintiff brought action in the court of common pleas for the recovery of same, and a verdict was rendered in favor of Mrs. Carroll, and that Mrs. Carroll still lawfully holds him out of the same to his damage $500; that the said premises so occupied are within the bounds of the land conveyed by the defendant to this plaintiff. The second and third causes of action are the same as the first, except a different parcel of land held by one Jacob Butterfield, and for which he claims damage for $100, and another portion of said tract, being in possession of persons claiming under Abraham Middleton, for which he claims damages for $600; the plaintiff demanding judgment in all for $1,200. The answer of the defendant denies the first, second, third, and fourth paragraphs of the complaint, and alleges that on the 26th day of February, 1901, in consideration of the sum of $1,000, this defendant conveyed to the plaintiff a tract of land in Bamberg county, but the deed only warranted 1,000 acres, and that in a suit in the court of common pleas the plaintiff agreed in open court to a verdict vesting the same to Julia R. Carroll, and such action relieves defendant from any liability. The answer to the second cause is practically the same as the first, except that defendant denies that the 7 acres of land held by Joseph Butterfield was not described in his deed to plaintiff. The third cause of action, relating to the 69 acres of land held by persons claiming under Abraham Middleton, is not a part of the land conveyed to the plaintiff, but that Middleton holds the land by a title older and better than that of the plaintiff. Wherefore defendant demands judgment that the complaint be dismissed, with costs. This case came on to be heard before Judge Watts in April, 1906, and the following is a copy of the judge's order: "The above-entitled cause coming on to be heard upon the pleadings, a demurrer having been interposed by the defendant on the grounds that the complaint does not state facts sufficient to sustain a cause of action, and upon the additional grounds that the court has no jurisdiction of the defendant, after hearing B. T. Rice, Esq., for the defendant, and J. Aldrich Wyman, Esq., for the plaintiff, it is ordered that the demurrer of the defendant be overruled in all respects except as to the first cause of action, and, as to the same, the second ground of demurrer alone is sustained. Further ordered that the plaintiff have leave to amend his complaint as to the first cause of action set forth in his complaint, and he shall serve a copy of said amended complaint upon the attorney of the defendant, and the said attorney shall have 20 days, after service of amended complaint, within which to answer said complaint." The cause then came on to be heard before his honor R. W. Memminger, and a jury, at the fall term, 1907. After the charge by his honor the jury rendered a verdict in favor of the plaintiff for $695.80. The defendant now appeals upon six exceptions, which we will consider in their order.

"(1) Because his honor erred in refusing defendant appellant's motion for nonsuit at the trial of the cause, upon the ground that the deed from Benjamin Graham to John F. Folk, dated February 26, 1901, contained a limited warranty to 1,000 acres of land only, and that the testimony of plaintiff John F. Folk, showed that he was in the peaceable possession of at least 1,000 acres of land; and his honor erred in not granting the motion of nonsuit made by the defendant at the close of plaintiff's case." The presiding judge erred in refusing defendant's motion for a nonsuit on the ground that the...