Garrett v. Weinberg

• Decision Date: 25 November 1896
• Parties: GARRETT et al. v. WEINBERG et al.
• Court: South Carolina Supreme Court

26 S.E. 3

48 S.C. 28

GARRETT et al. v. WEINBERG et al.

Supreme Court of South Carolina

November 25, 1896

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 seventyone, and in the ninety-fifth year of the sovereignty and independence of the United States of America. John S. Moore. [L. S.] Elizabeth x (his mark) Moore. [L. S.]

"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.

"Sworn to before me, this 28th day of November, 1871. Geo. W. Reardon, C. C. P."

Renunciation of Dower.

"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 released. Elizabeth X (her mark) Moore.

"Given under my hand and seal of office this (13th) thirteenth day of

April, Anne 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 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 within mentioned and released. Elizabeth x (her 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. Elizabeth x (her mark) Moore.

"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 that the defendants do not derive their title to the land in controversy from the same source from which the plaintiffs derive their title, that then, if they find that the plaintiffs are the heirs at law of Thomas Garrett, and that before his death he controlled and had possession of the whole tract of the land in controversy, in his own right, for the period of twenty years or more, they should find as a fact, arising by legal presumption from such possession, from such lapse of time, that he had a grant from the state, and was at the time of his death legally entitled to the whole tract, and that the plaintiffs, through him as his heirs at law, are entitled to the same, and should recover the portion of the land for which they sue, unless they are debarred from so doing by the statute of limitations, or from the rule of presumption arising from the lapse of twenty years, set up as defenses in the answer.

"(6) That if the jury find that Thomas Garrett held the plat described in the deed of Elizabeth Moore to Edwin W. Moise, and that the same covered their tract of land in question, and that he held both the plat and such possession of the land for twenty years, then they should find, as a legal presumption arising therefrom, that he had a grant from the state to all of the land covered by the plat. Duren v. Strait, 16 S.C. 465.

"(7) That for the purpose of

constituting the adverse possession set up by the defendants, if they claim title to the whole land under the deed of Elizabeth Moore to Ed win W. Moise, only that portion of the land shall be deemed to have been possessed and occupied by them which has been usually cultivated or

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