Lane v. Mims, 16607

• Decision Date: 28 March 1952
• Docket Number: No. 16607,16607
• Citation: 221 S.C. 236,70 S.E.2d 244
• Court: South Carolina Supreme Court
• Parties: LANE v. MIMS et al.

Page 244

70 S.E.2d 244

221 S.C. 236

LANE v. MIMS et al.

No. 16607.

Supreme Court of South Carolina.

March 28, 1952.

Connor & Connor and Philip C. Stoll, all of Kingstree, for appellant.

Lee & Shuler and J. D. O'Bryan, all of Kingstree, for respondents.

FISHBURNE, Justice.

The plaintiff (appellant here) brought this action against the defendants alleging that he is the owner and in possession of a tract of land containing 547 acres, more or less, situate in Williamsburg County, and that the defendants were trespassing thereon and interfering with his peaceable possession. He alleged irreparable damage and prayed for an injunction.

By their answer, the defendants raised an issue of title to a portion of the above-mentioned tract of land, comprising about 100 acres; denied that they were trespassing upon lands of the plaintiff, and alleged that the defendant, R. A. Mims, was the owner in fee of the 100 acres referred to, which it is stated is a portion of the undivided lands of one John D. Mims.

The plaintiff secured a temporary restraining order, enjoining the defendants from further trespassing upon the lands described in the complaint.

At the close of plaintiff's testimony, the defendants made a motion for a nonsuit on the ground that plaintiff had failed to prove title to the property in dispute. The motion was granted and this appeal followed.

In our opinion, the trial judge misconceived the character of the action. It is one of trespass quare clausum fregit, which primarily involves the question of possession of land.

In this action, the plaintiff alleged both title and possession, and the invasion of his possession. These allegations have always been considered entirely proper in an action of trespass quare clausum fregit.

As was said in Beaufort Land & Investment Co. v. New River Lumber Co., 86 S.C. 358, 68 S.E. 637, 638, 30 L.R.A.,N.S., 243:

'The important question is thus raised whether a plaintiff alleging both title and possession is entitled to recover damages upon proof of his possession and the invasion of it by the defendant, without proving also that he had a perfect title. The question must be answered in the affirmative. One person who finds another in possession of land cannot by seizing the possession or invading it, put him whose possession he seized or invaded to proof of his title. In such a case possession is prima facie evidence of title and he who invades it must establish his title. If this were not so, a holder of land could be put to proof of title against the world by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession this gives character to the action, as one in the nature of the old action of trespass quare clausum fregit.'

The above case has been followed consistently, as will be seen by the numerous cases cited in Battle v. De Vane, 140 S.C. 305, 138 S.E. 821, 825. Quoting from Battle v. De Vane, supra:

'In an action of trespass q. c. f. the plaintiff may recover either upon his possession or upon his title. Rhodes v. Bunch, 3 McCord 66; Davis v. Clancy, 3 McCord 422; Vance v. Beatty, 4 Rich. 104. If he should allege both title and possession, and the invasion of his possession, the form of the action is not changed, and the fact of the double allegation does not prevent his recovery upon either. The defendant may, whether the plaintiff alleges title or not, set up title in himself or license from the true owner, which, if established, will amount to an adjudication that he, and not the plaintiff, is entitled to the possession, thus defeating the plaintiff's case. Upon this issue the defendant assumes the burden of proof.'

To the same effect see Lyles v. Fellers, 138 S.C. 31, 136 S.E. 13.

"Trespass to try title,' is quite a different matter from trespass 'quare clausum fregit.' In such action, to try title one must prove title, but the plaintiff here is suing for injury and damage to the possession. In such actions possession is all that is necessary; title is not material. Connor v. Johnson, 59 S.C. 115, at page 131, 37 S.E. 240; Beaufort Investment Co. v. Lumber Co., 86 S.C. 358, at page 362, 68 S.E. 637, 30 L.R.A.,N.S., 243; Vance v. Ferguson, 101 S.C. 125, at page 132, 85 S.E. 241; 26 R.C.L., [221 S.C. 241] page 938, and pages 955 to 960.' Bethea v. Home Furniture Co., 185 S.C. 271, 194 S.E. 10, 11.

Although the action of trespass quare clausum fregit is founded upon possession, this possession may be actual or constructive. Where no actual occupancy exists, it has been held that upon showing title in himself, the plaintiff may maintain the action, because the title to the locus in quo 'draws after it possession, and this in our cases has been called constructive possession.' Vance v. Beatty, 4 Rich. 104; Littleton v. Roberts, 181 S.C. 303, 187 S.E. 349.

'In ascertaining the limits or boundaries of land which a grantor intended to convey, the courts will read his deed in the light of all the circumstances surrounding the parties when the deed was executed, and also of their subsequent conduct relative to it; and when the description involves a latent ambiguity, what the parties intended it to cover becomes a question of fact for the jury, and not one of construction for the court. Foy v. Neal, 2 Strob. 156; Johnson v. McMillan, 1 Strob. 143; Norwood v. Byrd, 1 Rich. 135; ...