Hancock v. Caskey

• Decision Date: 31 October 1876
• Citation: 8 S.C. 282
• Court: South Carolina Supreme Court
• Parties: HANCOCK v. CASKEY.

8 S.C. 282

HANCOCK

v.CASKEY.

Supreme Court of South Carolina.

October, 1876.

Where lands are sold under an order from the Probate Court for partition and there is no reservation of the crops growing thereon, either in the order of sale or in the conveyance to the purchaser, such crops pass with the land conveyed and become the property of the purchaser.

Where lands are sold under a decree for partition, without reservation of the growing crops, a guardian ad litem of the infant defendants is estopped from claiming such crops as his property.

BEFORE MACKEY, J., AT LANCASTER, OCTOBER TERM, 1876.

This was an action by Burrell R. Hancock against John D. Caskey, J. M. Caskey and Wylie Q. Caskey to recover damages for a certain quantity of oats alleged to have been the property of the plaintiff, and, on the first day of July, 1874, to have been wrongfully taken by the defendants and converted to their own use.

The case was as follows:

The oats which were alleged to have been converted by the defendants were grown upon a tract of land which, in 1873, “belonged to and was held in common by Thomas H. Clyburne and the following named children of Missouri Hancock, deceased, wife of plaintiff, to wit: Henry C. Hancock, George S. Hancock, J. J. Hancock, Thomas Hancock, S. A. Hancock, Gassey Hancock and B. P. Hancock, the same being also children of plaintiff, Burrell R. Hancock, the same being the land conveyed by Henry Hancock to J. C. Campbell in trust for Missouri Hancock, deceased.”

In 1873 Thomas H. Clyburn commenced proceeding against the children above named of Missouri Hancock, deceased. Burrell R. Hancock was appointed guardian ad litem of some of the defendants, who were infants, and filed answers on their behalf. In January, 1874, the land was sold by the Sheriff under a decree made in the proceedings for partition, and was purchased by Thomas H. Clyburn, who shortly afterwards sold and conveyed the land to the defendants. Neither in the decree for partition nor in the deed of conveyance by the Sheriff to Thomas H. Clyburn, nor in the deed of conveyance by Clyburn to the defendants, was there any mention of oats growing upon the land, or reservation of the same from sale. It was shown that the plaintiff, Burrell R. Hancock, was in possession of the land in the year 1873, and that the oats which the defendants took possession of and claimed as their property under the conveyance from Clyburn to them were sown by the plaintiff and were growing upon the land when it was sold for partition.

The defendants, by their counsel, requested the presiding Judge to instruct the jury “that the oats in question, growing on the land, if there was no reservation of the same in the order of sale or in the deed to the purchaser, did pass to the purchaser, Thomas H. Clyburn, with the land conveyed under the order of sale aforesaid.” The request was denied, and the defendants excepted.

His Honor instructed the jury “that the crop in question was the property of B. R. Hancock, who produced it as a tenant at will.” To which instructions the defendants excepted.

The jury found for the plaintiff thirty-seven dollars damages, and the defendants appealed.

Kershaw, Allison & Connors, for appellants:

First. What was the character of plaintiff's possession?

a. He was not a tenant, because he was not in by virtue of an express agreement; and no agreement can be implied with his infant children, and tenancy cannot otherwise arise.-Taylor Landlord and Ten., 9, § 14.

b. He held possession in right of his children as quasi guardian.

At common law he would have held as guardian in socage.-2 Kent, 222.

But that relation has gone into disuse and does not exist in this State.- State vs. Tidwell, 5 Strob. L., 8.

Natural guardianship only extends to the person of the child and gives no control over the estate.- Anderson vs. Darby, 1 N. & McC., 369; 2 Kent, 223.

If one intrudes into possession of an infant's property he is liable as if he were guardian.- Goodhue vs. Barnwell, Rice Eq., 199.

He holds as guardian or bailiff of the infant.- Harvin vs. Reggs, Rich. Eq. Cas., 291. His possession, therefore, was the possession of the infant heirs.

Second. What effect had the judgment in partition on plaintiff's rights?

a. A judgment in partition establishes the title to the land partitioned and is conclusive upon any adverse claim of title or possession existing at the date of its rendition. The law requires the Court to ascertain and determine the rights of the parties and makes it the duty of the parties to declare their adverse claims.-Freeman on Judgments, § 304.

The proceedings in partition are conclusive upon parties and their privies.- Rabb vs. Aiken, 2 McC. Ch., 118.

Plaintiff's privity was complete. He was privy to the case and to the estate.

Growing crops standing upon the soil when the latter is conveyed pass as part of the realty, and any exceptions rest upon reservations to be made by the vendor.-4 Kent, 468.

The judgment and sale under it is a conveyance by record, and the reservations might have been made appear by plaintiff had any right existed.

Third. Assuming that he was a tenant, plaintiff has not established his right. The onus was upon him to show the...