Garrett v. Weinberg
| Citation | 48 S.C. 28,26 S.E. 3 |
| Parties | GARRETT et al. v. WEINBERG et al. |
| Decision Date | 25 November 1896 |
| Court | United States State Supreme Court of South Carolina |
GARRETT et al.
v.
WEINBERG et al.
Supreme Court of South Carolina.
Nov. 25, 1896.
[26 S.E. 3]
Adverse Possession—Ouster—Presumption of Deed—Disability of Owner—Married Woman —Tacking Possession—Infancy of Tenant in Common.
1. Statements in the certificate to a deed to the "fleet that the wife, who joins with her husband in its execution, releases her rights of dower and of inheritance as widow of a former husband in the land conveyed, cannot limit the express words of the deed purporting to convey the entire title in fee to the land described, and possession taken by the grantee under such deed constitutes ouster as to all other persons claiming interests in the land.
2. When adults and infants are tenants in common of land, the fact that no presumption of a deed as against the infants arises from adverse possession during the time of their minority will not avail the other tenants in common to protect them from such presumption as to their interests.
3. Where an interest in land descended to a married woman prior to the adoption of the constitution of 1868, the right to its possession, which then vested in her husband, continued in him; and, while he lived, time would not commence to run as against the wife in favor of the presumption of a deed to one in adverse possession.
4. Under Code 1870 (as amended in 1893), § 98 et seq., limiting the time within which actions for the recovery of real property or its possession must be brought, and defining the possession which, when continued for 10 years, will be deemed adverse to the holder of the legal title, possession, to be adverse, must have been continued by the same person for 10 years, and the possession of one cannot he united or tacked to that of those under whom he claims.
5. The minority of one tenant in common will protect the entire property held in common from the operation of the statute of limitations in favor of an adverse claimant in possession.
Appeal from common pleas circuit court of Sumter county; R. C. Watts, Judge.
Action by John A. Garrett and others against Rosa Weinberg and William L. Osteen to recover land. Judgment for defendants, and plaintiffs appeal. Reversed.
The deed of John S. Moore and Elizabeth Moore to Edwin W. Moise is as follows:
"The State of South Carolina. Know all men by these presents, that we, John S. Moore and Elizabeth Moore, in the state aforesaid, in consideration of the sum of five hundred dollars to us in hand paid, at and before the sealing of these presents, by Edwin W. Moise, in the state aforesaid, lawyer (the receipt whereof is hereby acknowledged), have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto the said Edwin W. Moise, his heirs and assigns, all that plantation or tract of land, containing five hundred and two acres, situated, lying, and being in the county of Sumter and state aforesaid, on the west side of Black River swamp, and bounded on the north by lands now or formerly of David Rogers, on the south by lands now or formerly of Benjamin Courtney, on the east by Black River swamp and lands of the estate of Thomas Garrett, deseased, and on the west by lands belonging to some person or persons whose names are unknown; the same being represented by a plat thereof made out and certified by Richard W. Harvin, deputy surveyor, dated March 20, A. D. 1840, which said plat is hereunto attached as part of this deed. Together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in any wise incident or appertaining. To have and to hold all and singular the said premises before mentioned unto the said Edwin W. Moise, his heirs and assigns, forever, And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Edwin W. Moise, his heirs and assigns, against us, our heirs, and against all persons lawfully claiming or to claim any part thereof. Witness our hand and seal, this thirteenth day of April, in the year of our Lord one thousand eight hundred and seventy-one, and in the ninety-fifth year of the sovereignty and independence of the United States of America. John S. Moore. [L. S.]
his
Elizabeth X Moore. [L. S.]
mark
"Signed, sealed, and delivered in the presence of Chas. H. Moise, Richard D. Lee.
"[50ct. revenue stamp affixed and canceled.]
"The State of South Carolina, Sumter County. Personally appeared before me Richard D. Lee, and made oath that he saw the within-named John S. Moore and Elizabeth Moore sign, seal, and, as his act and deed, deliver, the within deed, and that he, with Chas. H. Moise, witnessed the execution thereof. R. D. Lee.
"The State of South Carolina, Sumter County. I, Guignard Richardson, notary public, do hereby certify unto all whom it may concern that Elizabeth Moore (ne Garrett) did this day appear before me, and, upon being privately examined by me, did declare that she does freely, voluntarily, and without dread or fear of any person whomsoever, renounce, release, and forever relinquish unto the within-named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also her right and claim of dower, as widow of Thomas Garrett, deceased, of, in or to all and singular the premises within mentioned and re-
her
leased. Elizabeth X Moore.
mark
"Given under my hand and seal of office, this (13th) thirteenth day of April, Anno Domini 1871. Guignard Richardson, Notary Public.
"The State of South Carolina, Sumter County. I, Guignard Richardson, notary public, do hereby certify unto all whom it may concern that Mrs. Elizabeth Moore did this day appear
[26 S.E. 4]before me, and, upon being privately, and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within-named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also all her right and claim of dower, of, in, or to all and singular the premises
her
within mentioned and released. Elizabeth X
mark
Moore.
"Given under my hand and seal, this thirteenth day of April, Anno Domini, 1871. Guignard Richardson, Notary Public.
"The State of South Carolina, County of Sumter. I, Guignard Richardson, notary public, do hereby certify that Elizabeth Moore did this day appear before me, and did declare that she does freely, voluntarily and for value, renounce, release, and forever relinquish unto the within-named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also all her right of inheritance as heir at law and distribute of her late husband, Thos. Garrett, deceased, of, in, or to all and singular the premises within mentioned and released.
her
Elizabeth X Moore.
mark
"Given under my hand and seal, this 13th day of April, A. D. 1871. Guignard Richardson, Notary Public."
The plaintiffs presented to the judge the following requests to charge:
"(1) That if the jury find that the defendants derived their title to the land in question, directly or through others, from the same source from which the plaintiffs get their title, and that both derived their title from Thomas Garrett, as his heirs at law, as a common source to all the land, then it is not necessary for them to consider whether Thomas Garrett had a perfect title or not to any of the land, but the sole question for the jury will be to determine whether the plaintiffs or the defendants have the better title to the land.
"(2) That if the jury find that the defendants derived their title to the land in question, directly or through others, from the same source from which the plaintiffs get their title, and that both derive their titles as heirs or through the heirs at law of Thomas Garrett, that then they must find that the plaintiffs are entitled to recover the portion of the land for which they sue, unless they are debarred from so doing by the statute of limitations, or by the rule of presumption arising from the lapse of twenty years, set up as defenses in the answer.
"(3) That, if the jury find that the plaintiffs and defendants so derive their title to the land in question from the common source of Thomas Garrett, they then, in order to sustain either of said defenses, under the statute of limitations, or under the rule of presumption arising from the lapse of time, must find that the defendant either took possession of the land under explicit notice to the plaintiffs of the denial of their rights to the interest in the land claimed by them, or that their possession has been continuously so visibly hostile and notorious, and so apparently exclusive and adverse, as to justify an inference of knowledge on the part of the plaintiffs, and of their laches in failing to discover and assert their rights.
"(4) That if the jury find that the plaintiffs and defendants do not derive their title to the land in question from the common source of Thomas Garrett, but if they do find that the plaintiffs are the heirs at law of Thomas Garrett, and that he did purchase the land at the sheriff's sale thereof at Sumter C. H., in 1829, or at any time twenty years prior to his death, and took possession and held possession of the land under such purchase, that the jury should presume as a fact that the sheriff executed and delivered to Thomas Garrett his deed to the land as described in the sheriff's book of sales for said county, and that then they should find that the plaintiffs are entitled to recover the portion of the land for which they sue, unless they are debarred from so doing by the statute of limitation, or from the rule of presumption, arising from the lapse of twenty years, set up as defenses in the answer. Bank v. McMahon, 37 S. C. 309, 16 S. E. 31.
"(5) That if the jury find...
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