Kennedy v. Kennedy

• Decision Date: 02 August 1910
• Parties: KENNEDY v. KENNEDY et al.
• Court: South Carolina Supreme Court

68 S.E. 664

86 S.C. 483

KENNEDY v. KENNEDY et al.

Supreme Court of South Carolina

August 2, 1910

Appeal from Common Pleas Circuit Court of Clarendon County; J. C Klugh, Judge.

Action by E. Maria Kennedy against Mary L. Kennedy and others. Judgment for plaintiff, and defendant, H. A. Kennedy appeals. Affirmed.

Exceptions referred to in the opinion are as follows:

1. Because the Honorable J. C. Klugh, presiding judge erred in refusing the motion for a new trial, which was based upon the following ground: "That the jury disregarded the law as charged by the court, and rendered a verdict contrary thereto, in that the jury were charged: That in establishing title under a sheriff's deed it must appear that there was a valid judgment and execution, and that there was a levy and sale under the execution. That the judgment of Epps v. Kennedy was recovered in Williamsburg county, where debtor and creditor resided, and in order to make valid sale it must appear that the judgment was docketed in Clarendon county and execution issued thereon, and having been so charged, the jury were bound, as a matter of law and of fact to have found that the judgment had never been docketed or filed in Clarendon county; for it appears from the recitals in the sheriff's deeds and from the proof that the judgment was never lodged in Clarendon county. Nevertheless, the jury disregarded the law so charged, and their verdict shows that it is based upon the finding of the validity of the sale under the Epps judgment, as there is no proof to support the verdict as to the title acquired by actual adverse possession of the whole, or of any possession of a part of the premises under a deed of conveyance, which would give title to the whole" --in that the charge to the jury, as recited in the motion for a new trial was the law of the case, by which the jury was governed, even though the law as so declared may be erroneous, and the jury disregarded such charge; for it appears, both negatively and affirmatively from the deeds of Gamble, acting sheriff, and Clark, sheriff, and from the other testimony, that the judgment recovered in Williamsburg county was never lodged or docketed in Clarendon county, and under the charge as delivered by the court, the jury should have so found, and the jury did not so find, and this is evidenced from the fact that in order to find a verdict for the entire premises, the jury must have found that it was a valid deed, for there is no evidence to support the verdict to the effect that title was acquired by actual adverse possession of the whole premises or of any possession of a part of the premises under a deed of conveyance which would give title to the whole; and the jury were charged that it was the theory of those claiming the land against H. A. Kennedy that their title came through David Epps, under the sheriff's deed, and that excluded the idea of any title from any other source; and it was error on the part of the circuit judge to let the verdict stand, as it was clearly contrary to the law as declared by him.

2. The presiding judge committed error in charging the jury as follows:

"Suppose that the sheriff's sale and the deed made in pursuance of that sheriff's sale was a nullity, yet the deed purports to designate by metes and bounds a tract of land and purports to convey that land to Epps. That becomes a description of the land, showing the extent of Epps' claim under the deed, so it becomes what we call color of title, and by way of writing that shows the extent of the party's claim under the deed, and if Epps took possession of that 200 acres of land under that deed or supposed deed, and held it continuously, either himself or by somebody that was holding it under him and in pursuance of some arrangement with him, if he held it continuously for twenty years from the date of that sheriff's deed, March 3, 1870, that would be sufficient to establish in Epps a title by adverse possession, as I told you a while ago. As the law now is, 10 years' adverse possession gives title, but in 1870 when this sale was alleged to have been made, it required 20 years.

"If it appears that Epps took possession of the land contained in that deed of Gamble, acting as sheriff, and held it continuously for 20 years, that would give title in him to all the land embraced in that deed now, by virtue of the sale, and by virtue of the bar of the statute of limitations; so if he had held the land for 20 years adversely and continuously, that forbids any other person to claim the land as against him. If he had title by conveyance from the sheriff and by the 20 years' adverse possession and died, and that title descended to his heirs, then the conveyance by those heirs to W. W. Kennedy in 1894 would confer upon W. W. Kennedy a good title to the land, and if that should be your conclusion, then the plaintiff must recover, unless there is something else to show that she has been ousted of her right to recover.

"You will observe then that the 20 years' possession from the date of the sheriff's deed in 1870, if it was adverse, whether Epps held it himself by hostile possession or permitted somebody else to hold it by some arrangement under him, would give him title. Only adverse holding would give him title by adverse possession. Under the statute, peaceable possession, whether he held it himself or by those living on the land who recognized his right superior to theirs, peaceable possession of the land 20 years would presume he held it because of a grant from the state, either to himself or to somebody else and the grant came to him, so if he held the land 20 years either peaceably or adversely, continuously, openly, and notoriously, and exclusively of everybody else's rights, even though he may have allowed other people to live there, if they lived there in recognition and in subordination of his rights, then that establishes in Epps the title which this plaintiff relies on, and that title passing to the plaintiff and her children by inheritance would inure to them now as a valid title, upon which they would be entitled to recover the land."

There was error in this charge, so given, in that there was no pretense, or claim on the part of the heirs of W. W. Kennedy or proof that David Epps or his heirs had ever been in possession of the land in question or any part of it for any time whatsoever, or that they ever claimed any part of it; on the contrary, the contention on the part of the heirs of W. W. Kennedy, now suing, was that W. W. Kennedy was in possession of the land in 1883, claiming it as his own, and the claimants based their claim before the jury upon such alleged possession.

There was error further in making reference to any party to this action holding land in subordination to the claim of David Epps or his heirs, in that there was no such claim put forward by the claimants or by H. A. Kennedy, and such charge so given as aforesaid, raised an issue before the jury which, it is respectfully submitted, had a tendency to confuse them and suggest that the land might have been so held, and to the prejudice of the defendant, H. A. Kennedy; and there being error further in this charge because it appeared affirmatively that W. W. Kennedy did not enter into possession of the premises in question, under claim of title, exclusive of any other right, founding such claim upon a written instrument, to wit: Of either the deeds of Gamble or Clark, acting sheriff and sheriff, respectively, or under a deed made to him by the heirs of David Epps; but, on the contrary, he claims to have gone into possession in 1883 and to have held the land independently of any of them; and in that it was a faulty proposition of law to charge the jury that the Code of Civil Procedure contemplated that a person could enter into possession under an invalid deed and by occupying a part of the premises, draw to such part the possession of the whole, it being respectfully submitted that the law does not so contemplate, and the charge is contrary to a proper construction of the statute.

3. There was error on the part of the circuit judge in charging the jury that if they found a verdict against H. A. Kennedy, it should be for the land in dispute, and this was several times done; in that it included the idea that if the plaintiff and her children recovered at all, that they were entitled to the entire premises; whereas, while claiming the entire premises, and while claiming under a deed and also by alleged possession, if they did not find that the plaintiff was entitled to the whole by virtue of a deed or by possession of the whole, but were entitled to a part, based upon actual adverse possession which excluded the idea of holding under a deed, then they would have been entitled only to so much as had been actually occupied by W. W. Kennedy and no more, and there was error in not so instructing the jury.

4. There was error on the part of the circuit judge in refusing to charge the third request of H. A. Kennedy, which was as follows: "That in order to trace the title claimed by plaintiff, through the sheriff of Clarendon district, to the said W. W. Kennedy, the plaintiff is required to show by competent testimony that the defendant named in the alleged execution and deed of sheriff, one J. M. Kennedy, was at the time of the alleged sale the owner of the said tract of land and having failed to make such proof, the plaintiff can take nothing by the sheriff's deed to David Epps"--in that it contained a correct proposition of law, and should have been so charged; and further in saying that it had not for the last expression it would have been charged, which was virtually charging the request to the effect that title had to be shown in J. M. Kennedy, and having...