Harrelson v. Sarvis

• Decision Date: 31 March 1893
• Citation: 17 S.E. 368,39 S.C. 14
• Parties: HARRELSON v. SARVIS et al.
• Court: South Carolina Supreme Court

17 S.E. 368

39 S.C. 14

HARRELSON v. SARVIS et al.

Supreme Court of South Carolina

March 31, 1893

Appeal from common pleas circuit court of Horry county; W. H Wallace, Judge.

Action by N. Orilla Harrelson against D. Jay Sarvis and another to recover land. There was a judgment of nonsuit, and plaintiff appeals. Reversed.

The grounds of appeal are as follows:

"(1) If the defect in the chain of title apparent to his honor was the failure to produce a grant, in not holding that the evidence of a grant was sufficient to go to the jury, and in the absence of evidence the long possession under title raised the presumption of a grant. (2) In not holding that the plaintiff held the property in question by an unbroken chain of title in regular succession from Abram King in 1822 to the present time, accompanied by actual possession in herself and those under whom she claimed during the whole time, and was therefore entitled to recover in the absence of paramount title; and that, in the absence of such a chain of title, the tortious eviction, ouster, and disseisin of the plaintiff from premises of which she was in the actual possession under color of title entitled her to recover. (3) If the defect apparent to his honor was the absence or defect in the partition proceedings of the estate of D. J. Blanton, in not holding that the deed of Isaac G. Long, probate judge, as the final order of the said proceedings, with the parol testimony as to the existence and loss of those proceedings, and the plaintiff's possession thereunder for a period of more than ten years, was sufficient at least to put the defendants who had committed an ouster, to the proof of paramount title; and, even in the absence of this deed or other evidence of proceedings in partition, the deed alone of J. M. Blanton and Susan J. Todd, other heirs at law of D. J. Blanton, accompanied by the possession of plaintiff and ouster by defendants, entitled the plaintiff to recover. (4) If the defect apparent to his honor was the want of words of inheritance or perpetuity in the deed from J. T. Moody to D. J. Blanton in not holding that this deed by liberal construction under the light of all the circumstances, vested a fee-simple title in the grantee but, if not, the possession of the plaintiff and other heirs of D. J. Blanton since his death had matured their title, and at all events the subsequent deed of the heirs at law of Moody to the plaintiff conferred upon her the title and entitled her to recover. (5) In not holding that the plaintiff's possession under any color of title, and tortious evictions, ouster, or disseisin by defendants, entitled her to recover. (6) In not holding from all the facts in the case that the plaintiff had proven sufficient to go to the jury, and was entitled to recover, in the absence of paramount title."

Appendix "A," mentioned to the opinion, was as follows:

"Know All men By these presant that I J. T Moody of the State and Dest a fore saide for & inconsidration of the sum of Six Hundred Dollars to me in Hande paide. By D. J. Blanton of the state & Dest a fore said that I the said J,, T Moody have grantede bargende solde & releast un to the said D. J. Blanton all that plantation or tract of lande contaninge three Hundred Achors more or Less situated in the Destrict a fore said bein a parte of a tract of lande granted to John Sarvis Sean the 4 of March 1793 & bounded *** to Gether with all & singler I J T Moody Doo Binde my Self my Heirs Exeters admnitrators & a signs to warent ande for Ev Difende all & Singler the rights membrs Heireditnnents of the primises before mentioned un to the saide D J Blanton from & a gante my Self my heirs & from Evry other pearson pearsons lawfully Clamin the saim or any parte there of as witness my hande & Seal this July 27 A D 1861 Sinde Sealde & Delivred in the presence of us

Witness Samuel Grainger

James Williamson

J,, T,, Moody [LS]"

Ferd D. Bryant, for appellant.

R. B. Scarborough, for respondents.

McGOWAN J.

This was an action to recover a tract of land (300 acres) in the county of Horry. The answer of the defendants did not state under what title they claimed, but put in a general denial alleging adverse possession by themselves and their ancestors more than 20 years under claim of title, and interposing the statute of limitations. After the plaintiff closed her testimony, the judge granted a nonsuit in general terms, because "the plaintiff had failed to make out her claim of title to the premises in question." That makes it necessary to consider all the testimony, in order to find out whether any error was committed. No "case" was regularly "stated," but the record shows that the plaintiff offered in evidence the following "abstract of title:" (1) Certified copy of plat of land surveyed for John Sarvis September 25, 1792, (1,100 acres.) (2) Fee-simple deed, Abram King to Benjamin Dorman, January 28, 1822, for 100 acres of land, being part of a tract granted to John Sarvis, Sr., March 4, 1793, covering the land in question. (3) Fee-simple deed, Benjamin Dorman to Thomas Dorman, dated February 20, 1843, for same land as that described in No. 2, above. (4) Fee-simple deed, Thomas Dorman and wife to J. T. Moody, December 2, 1859, for 300 acres, covering the land described in Nos. 2 and 3, above, being part of land granted to John Sarvis, Sr., March 4, 1793. (5) Deed, J. T. Moody to D. L. Blanton, July 27, 1861, for same land as that described in No. 4, above. (See Appendix A, deed without the word "heirs.") (6) Deed purporting in its premises to be from the widow and two children of J. T. Moody, deceased, to plaintiff for their interest in the land described in No. 5, above, but executed by the two children only, a copy of which, except description of land. December 30, 1890. (7) Deed, Isaac G. Long, probate judge Horry county, to heirs at law of D. J. Blanton, of whom plaintiff is one, based upon the partition proceedings of the 300-acre tract of land of the estate of D. J. Blanton, described in Nos. 4 and 5; this paper being the final order in partition of said estate, and in which the land in question is set apart to the plaintiff in fee simple. February 3, 1878. (8) Submission to and award of arbitrators in a controversy between Celia Harrelson, widow, and heirs at law of D. J. Blanton and W. P. Pridgeon, as to the location of a certain line of the land in question, in which the line as now claimed was established. June 10, 1882. In addition to the foregoing, the plaintiff proved her actual possession of the premises for more than 12 years next prior to the commencement of the action under title, and the actual possession of D. J. Blanton, her ancestor, and his heirs, under deed of J. T. Moody, from 1861 down to the time of her entry under proceedings in partition in 1878; also the actual possession of Benjamin Dorman and Thomas Dorman during the terms indicated by their deeds respectively, from 1822 to 1859, and the possession and use by Moody during the term indicated by his deed, and the trespass and ouster as alleged in the complaint, defining the scene of trespass and the extent of her claim by reference to the plat attached. The plaintiff also proved the death of D. J. Blanton about the close of the Confederate war, the loss or displacement of the records of partition in the probate court, and also loss or displacement of records of circuit court, in proceedings to confirm said partition. Also actual personal notice to the defendant not to enter upon the land in question. The plaintiff then closed, and the defendants moved for a nonsuit on the ground that the plaintiff had not shown perfect title in three particulars, to wit: (1)...