Harvey v. Harvey

• Decision Date: 01 March 1887
• Citation: 2 S.E. 3,26 S.C. 608
• Parties: HARVEY v. HARVEY and others.
• Court: South Carolina Supreme Court

2 S.E. 3

26 S.C. 608

HARVEY v. HARVEY and others.

Supreme Court of South Carolina

March 1, 1887

Appeal from circuit court, Spartanburg county.

J. S R. Thomson, for appellant.

Duncan & Sanders, for respondents.

MCIVER J.

The conflicting claims of the several parties to this action except those arising between the defendant Swink, on the one hand, and the defendants Jane Ward and William Harvey, on the other, have heretofore been adjudicated by the former decision in this case, and by the judgment recovered by Swink in the action at law against Jemima Harvey and A. H. Ward. But, the judgment rendered by Judge COTHRAN, heretofore appealed from, having omitted to determine the controversy between Swink and Jane Ward and William Harvey, this court while affirming the judgment in all other respects, sent the case back for the determination of that controversy. This is now an appeal from the decree of Judge HUDSON, in which he held that the defendant Swink had failed to establish any right to recover possession of the land in question from his co-defendants Jane Ward and William Harvey, on numerous grounds set out in the record, which need not be repeated here, as many of them seek to reopen questions already determined. Judge HUDSON held, in substance, that, Jane Ward and William Harvey being in possession of the land, they could not be ousted by Swink unless he showed title in himself, which he had failed to do, and he therefore determined that Jane Ward and William Harvey, although they had shown no title in themselves, were entitled to retain the possession "until a rightful owner arises and makes a claim." In reaching his conclusion the circuit judge says expressly that, though there was some incompetent and irrelevant testimony received by the referee, "in passing upon Swink's title I have been governed by the muniments which he introduced, and by perfectly competent testimony as to the nature of the possession of Caroline Harvey and her boy, who were there for twenty years on the land using it and claiming it as the boy's property;" so that the only substantial questions presented by this appeal are (1) whether the circuit judge erred in holding that Swink had failed to show that he ever had title to the land; (2) whether, assuming that he did once have title, he had lost that title by the adverse possession of Jonas Harvey through his mother, Caroline.

If Judge HUDSON was right, as we think he was, in holding that...