Freeman v. Freeman, 2535

CourtCourt of Appeals of South Carolina
Citation323 S.C. 95,473 S.E.2d 467
Docket NumberNo. 2535,2535
PartiesCharles FREEMAN and Mae Freeman Hall, Respondents, v. Carl FREEMAN, Errol Freeman, Wanda Freeman Ravenel, John Freeman Jr., Lawrence Freeman, Kenneth Freeman, Marvin Freeman, Barbara Freeman Washington, Sophie Gathers, Beatrice Gathers Venning, Edward Gathers, Mary Alice Gathers, Gloria Freeman, if they be alive, and Richard Roe and Mary Roe, adults whose true names are unknown, John Doe and Jane Doe, infants, incompetents, persons under disability, or persons in the military service, if any, whose true names are unknown, these four names being fictitious names designating the unknown heirs, devisees, distributees, issues, executors, administrators, personal representatives, successors, and/or assigns of Lawrence Maxwell, John R. Freeman, Hardy Freeman, John Freeman, Mary Freeman Gathers, Walter Freeman, Fred Gathers, Palmer Gathers, and James Gathers, deceased, and also all other persons unknown claiming any right, title, estate, interest in or lien upon the real estate described in the Complaint herein; and The United States of America, by and through its agency, The Internal Revenue Service, Defendants, of whom Carl Freeman, Errol Freeman, Wanda Freeman Ravenel, John Freeman Jr., Lawrence Freeman, Kenneth Freeman, Marvin Freeman and Barbara Freeman Washington are, Appellants. . Heard
Decision Date07 May 1996

[323 S.C. 97] Ivan N. Nossokoff, and Bruce A. Berlinsky, Charleston, for appellants.

John A. Von Lehe, Mt. Pleasant, for respondents.

HOWELL, Chief Judge:

Charles Freeman (Charles) and Mae Freeman Hall (Mae) brought an action to quiet title and for partition and sale of real property against the heirs of John R. Freeman (John I). The case was referred to the master in equity for final judgment, with any appeal being directly to the Supreme Court. The master found in favor of Charles and Mae, and the heirs of the second John R. Freeman (the Freemans) appeal. We affirm in part, reverse in part and remand.


This case involves the ownership of about one acre of property in Charleston County. Title to the property was acquired by John R. Freeman by deed in 1936. There are two persons with the name "John R. Freeman." John R. Freeman (John I) had five children: Walter Freeman, who died intestate and left no heirs; Marie Gathers, who died intestate and was survived by eight children; John R. Freeman (John II), who died intestate and left eight surviving children; Henry Freeman, a/k/a Hardy (Henry), who died intestate and was survived by Mae, who claims to be Henry's illegitimate daughter; and Charles Freeman. Charles and Mae entered into a contract to sell the property and brought this action to quiet title and to partition the property by sale. Following a hearing, the master determined (1) the 1936 deed was to John I; (2) Mae was an heir of [323 S.C. 98] John I by virtue of representation through Henry; and (3) the contract for sale of the property was fair and valid. This appeal followed.


This is an action in equity. Van Every v. Chinquapin Hollow, Inc., 265 S.C. 474, 219 S.E.2d 909 (1975) (an action to remove a cloud on and to quiet title to land is one in equity); Wilson v. McGuire, 320 S.C. 137, 463 S.E.2d 614 (Ct.App.1995) (a partition action is equitable). Therefore, this court may view the evidence to determine facts in accordance with its own view of the preponderance of the evidence, though we are not required to disregard the findings of the master. Friarsgate, Inc. v. First Fed.

Sav. & Loan Ass'n., 317 S.C. 452, 454 S.E.2d 901 (Ct.App.1995); Provident Life & Accident Ins. Co. v. Driver, 317 S.C. 471, 451 S.E.2d 924 (Ct.App.1994). Nor are we required to ignore the fact that the master, who saw and heard the witnesses, is in a better position to evaluate their credibility. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981)
I. Title to Property

The Freemans first argue the master erred in finding the deed was to John I and not John II. We disagree.

On November 13, 1936, the Forfeited Land Commission deeded the Charleston property to "John R. Freeman." At the time of the conveyance both John I and John II lived on the property. John I was the father of John II, who was seventeen years old at the time of the conveyance. If the 1936 deed was to John I, then his heirs, including Charles and arguably Mae, own the property; however, if the deed was to John II, only his heirs own the property, so that Charles and Mae have no claim.

In the early 1930s, John I and his family moved into a home owned by Mr. Oree and remained there while John I worked, first as a farmer and then with the government under the WPA. John I purchased and stored lumber until he accumulated enough to build a home. The property was purchased in 1936. In the late 1930s, John I built a home upon the property. Eventually John II built a home on the property in front of John I's house. John I continued to live on the property until his death in 1961. John II also lived on the property and paid the taxes as far back as 1953. When John II received $2,000 from the highway department when the road near the property was widened, he distributed the money to people other than his immediate family. John II died intestate in 1992.

The evidence is consistent with John I obtaining title to the property and allowing John II to live there rent-free so long as he paid the taxes and maintained the property. Significantly, John II was only 17 years old when the property was purchased. From our own view of the evidence, we find it more likely than not the 1936 deed was to John I, and not to his 17 year old son. Accordingly, we affirm the master's finding the deed was to John I.

II. Ouster

The Freemans next contend the master erred in failing to find they established acts which constituted "ouster" of Charles and Mae. We disagree.

"Ouster" is the actual turning out or keeping excluded a party entitled to possession of any real property. Grant v. Grant, 288 S.C. 86, 340 S.E.2d 791 (Ct.App.1986). The possession of one tenant in common is the possession of all and, for one tenant to establish title against a cotenant by 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 occurs when the possession is attended with such circumstances as to evince a claim of exclusive right and title and a denial of the right of the other tenants to participate in the profits. Woods v. Bivens, 292 S.C. 76, 354 S.E.2d 909 (1987); Brevard v. Fortune, 221 S.C. 117, 69 S.E.2d 355 (1952). The acts relied upon to establish an ouster must be of an unequivocal nature, and so distinctly hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable. Felder, 278 S.C. at 330, 295 S.E.2d at 642. Only in rare, extreme cases will the ouster by one cotenant of other cotenants be implied from exclusive possession and dealings with the property, such as collection of rents and improvement of the property. Id., 278 S.C. at 331, 295 S.E.2d at 642; see also Horne, 237 S.C. at 45, 115 S.E.2d at 515 (while a "turning out by the heels" is not necessary in establishing title by a tenant in common by adverse possession, nevertheless an actual ouster and an exclusion of the other tenants from possession must be shown and the acts relied upon to establish such ouster must be of an unequivocal nature and so distinctly hostile to the rights of the other cotenants that intention of ouster is clear and unmistakable).

The master found John II's failure to indicate there were joint owners of the property when he applied for a homestead exemption for the property was not adverse to the rights of the other cotenants. Rather, the master found the net effect of this action was to reduce taxes. Furthermore, although John II spoke of devising the property to his son, he never followed through with the transfer. Finally, the fact that John II paid the taxes during his occupancy of the property does not amount to ouster. See Watson v. Little, 224 S.C. 359, 79 S.E.2d 384 (1953) (payment of taxes by a cotenant ordinarily entitles him only to a proportionate contribution from the other cotenants). Accordingly, we agree with the master that John II's adverse acts were not sufficient to show the clear and unmistakable intention required to constitute ouster.

III. Mae's Right to Inherit

The Freemans argue the master erred in finding Mae could inherit a portion of John I's estate by virtue of representation of Henry's share. We agree.

Mae argues she is the rightful heir of Henry and the master's decision to allow her to share in the proceeds from the sale of the property should be affirmed because: (1) she was treated as a family member until this action to quiet title; (2) she took care of Henry for the last few years of his life; (3) she shared in the proceeds paid by the highway department after it widened the road and took a portion of the property; (4) she was consulted by Charles about selling the property because he considered her an heir and because he thought "it was the right thing to do;" and (5) nothing was done to contest her paternity within six months of Henry's death.

Mae contends the master correctly relied on Parker v. Parker, 313 S.C. 482, 443 S.E.2d 388 (1994). We disagree. In Parker the South Carolina Supreme Court held if paternity is questioned by an interested party then the action must be brought within the time required by statute. Parker, 313 S.C. at 486, 443 S.E.2d at 390. In Parker, heirs were barred from questioning a daughter's paternity because they waited nearly four years after the father's death to challenge paternity. Parker, 313 S.C. at 485-86, 443 S.E.2d at 390 ...

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