Garrett v. Weinberg
| Decision Date | 29 October 1898 |
| Citation | 31 S.E. 341,54 S.C. 127 |
| Parties | GARRETT et al. v. WEINBERG et al. [1] |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Sumter county; I. D Witherspoon, Judge.
Bill for partition by John A. Garrett and others against Rosa Weinberg and another. Judgment for plaintiffs, and defendants appeal. Reversed.
Lee & Moise, for appellants.
A Brooks Stuckey and Thomas S. Moorman, for respondents.
This case having been before this court on three previous occasions, it is not deemed necessary to make any full statement of the case, as that may be obtained from the former appeals, which will be found reported in 43 S.C. 36 20 S.E. 756; 48 S.C. 28, 26 S.E. 3; and 50 S.C. 310, 27 S.E. 770. It is only necessary now to state that the plaintiffs, recognizing the title of the defendants to one undivided half of the land in dispute, which is now in the possession of the defendants, claim title to the other undivided half, and seek by this action to establish such title for the purpose of obtaining partition of the land. The plaintiffs base their claim of title upon the allegation that the land in question originally belonged to one Thomas Garrett, who died intestate on the ___ day of November, 1865, leaving as his heirs at law his widow, Elizabeth, who subsequently intermarried with one John S. Moore, and his children named in the complaint; and the plaintiffs are the children who survived at the time of the commencement of this action, together with the descendants of those who had previously died. The plaintiffs did not undertake to trace their title back to a grant from the state, but endeavored to establish their title by offering evidence to show that their ancestor, Thomas Garrett, for more than 20 years prior to his death, had been in notorious adverse possession of the land, from which they claimed that a grant from the state would be presumed; second, by undertaking to show that both plaintiffs and defendants claimed from Thomas Garrett as a common source of title, which superseded the necessity for going back to a grant from the state. This question of title was tried before his honor, Judge Witherspoon, and a jury, who rendered a verdict in favor of plaintiffs. A motion of new trial was made on the minutes, upon grounds which will be hereinafter stated, which, being refused, judgment was entered upon the verdict. From this judgment, as well as from the order refusing a new trial, defendants, appeal upon the several grounds set out in the record. The exceptions impute error to the circuit judge--First, in his rulings as to the admissibility of testimony; second, in refusing the motion for a nonsuit; third, in his charge to the jury; fourth, in refusing the motion for a new trial.
The first specification of error as to the admissibility of testimony is in receiving in evidence the order of Graham, clerk, appointing a guardian ad litem for one of the infant plaintiffs, when it did not appear that any petition had ever been filed or recorded. The order in question was shown to have been signed by the clerk with the seal of the court attached, and there was testimony tending to show that the petition had been filed, though, after search, it could not be found. This, we think, was sufficient, in view of the testimony, as to the condition of the office. Besides, it seems to us that this objection, made for the first time after several trials of the case, came too late. The first exception is overruled.
The next specification of error is in allowing A. B. Stuckey, Esq., to testify as to what two deceased witnesses testified at a former trial; the claim being that the stenographer's notes were the best evidence. This matter is disposed of by what was said in Brice v. Miller, 35 S. C., at page 549, 15 S.E. 272. But while we hold that there was no error in allowing Mr. Stuckey, who was one of the counsel for plaintiffs, and therefore to be presumed to have taken particular notice of what occurred, to testify as to what deceased witness had testified to at a former trial, provided such testimony is competent, yet we cannot hold that incompetent testimony can thus be injected into a case. If Mrs. Moore, for example, had been alive at the trial which is now under review, and had offered to testify as Mr. Stuckey says she did, and her testimony had been ruled out as incompetent, surely there would be error in allowing Mr. Stuckey to reproduce this incompetent testimony, whether such testimony had been objected to or not; for, when a new trial is ordered in a case, it must be treated as if there had been no previous trial, so far as this matter is concerned; and hence, if incompetent testimony is offered upon the new trial, it must be ruled out, if objected to, even though it had been received without objection at the previous trial. But as a matter of fact it seems that Mr. Stuckey admits that this testimony of Mrs. Moore was objected to at the former trial, and, though let in by the circuit court, the question of its competency was never passed upon by the supreme court, for the obvious reason that the previous judgment was in favor of defendants, and hence there was no occasion for them to appeal. So that the question as to the competency of the testimony of Mrs. Moore, as reproduced by Mr. Stuckey, is for the first time presented for the consideration of this court. In view of the fact that the plaintiffs introduced a deed from John S. Moore and Elizabeth Moore to E. W. Moise, Esq., conveying to him the whole of the land, with full covenant of warranty, without anything whatever on the face of the deed indicating that anything less than the entire interest in the land was intended to be conveyed, and Mr. Moise had gone into possession under that deed, it surely would not be competent for either John S. Moore or Elizabeth Moore, after they had thus parted with the title to and the possession of the land, to give evidence in disparagement of the title which they had conveyed to Moise. The rule is well settled that the declarations of a grantor, made after he has parted with the possession of the thing sold, in disparagement of his title, are not competent against his grantee, or those claiming under him. Kittles v. Kittles, 4 Rich. Law, 422; Renwick v. Renwick, 9 Rich. Law, 50; Hobbs v. Beard, 43 S.C. 370, 21 S.E. 305. Upon the same principle, a grantor, after conveying land with full covenant warranty, should not be heard as a witness to impeach, disparage, or restrict the title which he has, by his solemn deed, conveyed. It seems to us, therefore, that there was error on the part of the circuit judge in receiving the testimony of John S. Moore tending to contradict his deed, by showing that, while he had conveyed the entire interest in the land to Mr. Moise, he was only entitled to, and only had a right to convey, an undivided one-third interest. For a similar reason the testimony of Mrs. Moore to the same effect as reproduced by Mr. Stuckey was likewise incompetent. If it should be said that the certificates indorsed on the deed, whereby Mrs. Moore purported to release her dower and her estate of inheritance, were sufficient to show that she acquired her interest in the land as the widow and heir at law of Thomas Garrett, the answer will be found in what was well said by Mr. Justice Gary in determining the former appeal in this case (48 S. C., at page 42, 26 S.E. 17), "The certificates aforesaid cannot have the effect of contradicting the plain, express words of the deed." The exceptions complaining of error in admitting the testimony of John S. Moore, and that of Mrs. Moore as reproduced by Mr. Stuckey, above referred to, must be sustained.
The next specification of error in the rulings of the circuit judge as to the admissibility of evidence is in refusing to allow the witnesses Tindall and Winkles to testify as to the common reputation in the neighborhood as to whether Thomas Garrett was holding any property as his own at the time of his death. Inasmuch as the plaintiffs attempted to establish title in Thomas Garrett by adverse possession, which, to be effective, must be open and notorious, it would seem that the testimony objected to was relevant as to the point of notoriety; but as the circuit judge says, in his order refusing the motion for a retrial, "I do not think that the verdict of the jury can be sustained upon the ground of such adverse possession by Thomas Garrett, from which a grant of the land would be presumed," this error, if error it be, would seem to be harmless, for the inference is that, if the plaintiffs' case rested only on such adverse possession, he would have granted a new trial. The only other stipulation as to this point is that mentioned in the fifth exception. The record excluded was manifestly res inter alios acta, and was, therefore, incompetent. We are unable to perceive such a connection with the matters here in issue as would bring it within the exception to the general rule. This exception must, therefore, be overruled.
The next inquiry is whether there was error in refusing the motion for a nonsuit upon the ground that the plaintiffs, by introducing the deed from John S. Moore and Elizabeth Moore to E. W. Moise, had thereby proved title out of themselves. We are not prepared to accept that view. The plaintiffs claimed title as heirs of Thomas Garrett, and made no claim of title through or under that deed, or through the grantors named therein. It did not appear from the face of the deed or from any other competent evidence, how or when John S. Moore and Elizabeth Moore acquired the title to the land which they undertook to convey to Moise, under whom the defendants claimed; and hence, while it did not serve the purpose for which it was introduced,--to...
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