Gunter v. Fallaw

• Decision Date: 08 November 1907
• Citation: 59 S.E. 70,78 S.C. 457
• Parties: GUNTER v. FALLAW et al.
• Court: South Carolina Supreme Court

59 S.E. 70

78 S.C. 457

GUNTER v. FALLAW et al.

Supreme Court of South Carolina

November 8, 1907

Appeal from Common Pleas Circuit Court of Lexington County; R. W Memminger, Judge.

Action by Lula Gunter against Martha Fallaw and Burt Fallaw to recover possession of real estate. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted conditionally.

W. H Sharpe and E. L. Asbill, for appellants.

G. T Graham and A. D. Martin, for respondent.

JONES J.

The plaintiff brought this action to recover possession of a tract of land in Lexington county. A jury trial was waived and by consent all issues were submitted to Judge Memminger, who gave judgment in favor of plaintiff for the possession of the whole tract in dispute and $10 damages.

This being an action at law, the issue of title having been submitted to the court without a jury, questions of fact must be accepted as finally settled, since we have no jurisdiction to review issues of fact in a law case. Peeples v. Warren, 51 S.C. 560, 29 S.E. 659. Even in equity cases, when the legal issues of title paramount is raised, the conclusion of the circuit court on matters of fact involved is final. Johnson v. Jones, 72 S.C. 287, 51 S.E. 805. A verdict and judgment, however, which is absolutely without any evidence to support it, is erroneous as matter of law; and this court, upon proper exceptions, may grant a new trial for such error. State v. Shaw, 64 S.C. 569, 43 S.E. 14, 60 L. R. A. 801, 92 Am. St. Rep. 817; Colvin v. Oil Co., 66 S.C. 77, 44 S.E. 380. Usually this last question should be presented to the trial court in the first instance, and appeal taken from refusal to set aside or correct the verdict; but that method was impracticable in this case, as the testimony was taken by referee under a consent order and reported to the court, the case was heard thereon in November, 1906, and the judgment was filed December 29, 1906, after the adjournment of the court. We will therefore, under the principles above stated, look into the testimony only with a view to ascertain whether there was any testimony to support the conclusions on the facts.

There was certainly evidence tending to show that plaintiff and defendants claimed from a common source, and the ruling of the court to that effect cannot be disturbed. The plaintiff claimed under a deed by Samuel B. George, as clerk of the court, dated May 25, 1904, conveying the land in question to plaintiff as purchaser at sale under judgment in proceedings to partition the lands of Levi Rish, Sr. deceased; and defendants claimed under a deed by Levi Rish, Sr., to defendant Martha Fallaw and the heirs of her body, executed January 13, 1872. The real question, then, was whether plaintiff had a better title than defendant from the common source. This question largely depended upon a question of fact-location of the respective deeds. The deed from Levi Rish, Sr., to Martha Fallaw conveyed lands described as "my home place, including half the mill thereon, containing 500 acres, more or less, in said county, near North Edisto river, adjoining lands of Lury Ann Fallaw, Lorance Ralls, Loduska Lowman, estate of Wayne Able, and Caswell Gantt, with full mill privileges," etc. The deed under which plaintiff claimed described the land as one other tract "on Hood's Branch, containing two hundred and ten (210) acres, more or less, bounded by Levi Rish, William Merrit, Ulysses Gantt, and Alfred Gunter." The issue was whether the land claimed by plaintiff was covered by the deed of Levi Rish to defendant. Upon this issue the circuit court, after hearing the evidence of the surveyors and other witnesses, found in...