Foster v. Foster

• Decision Date: 11 September 1908
• Citation: 62 S.E. 320,81 S.C. 307
• Parties: FOSTER et al. v. FOSTER et al.
• Court: South Carolina Supreme Court

62 S.E. 320

81 S.C. 307

FOSTER et al. v. FOSTER et al.

Supreme Court of South Carolina

September 11, 1908

Appeal from Common Pleas Circuit Court of Lancaster County; J. C Klugh, Judge.

Action by J. Harry Foster and others against Charlotte R. Foster and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for new trial.

R. B Allison and Abney & Muller, for appellants.

J Harry Foster and Green & Hines, for respondents.

WOODS J.

The land involved in this case was a part of the property of the late Joseph H. Foster. After his death, his widow, Mrs. Charlotte R. Foster, became administratrix of his estate, and on 20th April, 1887, undertook to grant a right of way, over the lands of the estate of the Charleston, Cincinnati & Chicago Railroad Company. That company entered under the grant, and appropriated the land described in the complaint to its use as a part of its right of way. The defendant Southern Railway Company, having acquired the interest of the Charleston, Cincinnati, & Chicago Railroad Company, now holds and uses the property as part of its right of way. The plaintiffs, the children of Joseph H. Foster, allege in their complaint, in this action for partition, that the railroad company acquired under this grant from Mrs. Foster a one-third interest in the land, and that they are the owners in fee of the remaining two-thirds. Mrs. Foster by her answer admits all allegations of the complaint, except that the railroad company owns one-third interest in the land under the grant from her, and joins in the prayer of the complaint. The Southern Railway Company sets up the following defense: First, that it acquired a good title to the land for its roadbed and right of way by the grant of Mrs. Foster in 1887; second, that the plaintiffs brought an action for the recovery of the identical land in the court of common pleas for Lancaster county in 1899, against the South Carolina & Georgia Extension Railroad Company, the lessee and predecessor in title of the Southern Railway Company, and, after issue joined took an order of discontinuance, more than two years before the commencement of their present action, and therefore is precluded from bringing this action against the Southern Railway Company, under the terms of subdivision 2 of section 98 of Code of Civil Procedure of 1902; third, that in a proceeding to marshal assets and for partition, to which the plaintiffs were parties, all the lands of the estate of Joseph H. Foster, including the fee in the land now in dispute, were sold and duly conveyed to other persons, and the plaintiffs, therefore, have no interest in the land. On the trial of the issue of title thus made, after all the evidence was in, the circuit judge refused to direct a verdict for defendant, and, after a verdict had been rendered for plaintiffs, refused a motion for a new trial. Error is assigned in the refusal of these motions, in the charge to the jury, and in the exclusion of testimony. As the same points are made in several different forms, it will not be necessary to refer in detail to the 30 exceptions appearing in the record.

The first defense may be at once eliminated from the case, for it is obvious the conveyance of Mrs. Foster could not affect the interests of the plaintiffs as heirs at law of their father, Joseph H. Foster. C. & W. C. Ry. Co. v. Reynolds, 69 S.C. 481, 48 S.E. 476.

Due consideration of the effect on this action of the former action for the recovery of the land, as well as of that for partition of the lands of Joseph H. Foster, requires a statement of the relation of the several parties to the land after the execution of the deed of Mrs. Foster purporting to convey to the railroad company a right of way. Mrs. Foster did not undertake to convey the fee to the railroad company but only an easement; and therefore, after the execution of her deed, her relation to the land remained that of tenant in common with her children; her interest having imposed upon it the easement of the railroad right of way, coextensive with her one-third interest. The South Carolina & Georgia Extension Railroad Company, to whose rights the ...