Lewis v. Hinson

• Decision Date: 13 December 1902
• Citation: 43 S.E. 15,64 S.C. 571
• Parties: LEWIS et al. v. HINSON et al.
• Court: South Carolina Supreme Court

43 S.E. 15

64 S.C. 571

LEWIS et al. v. HINSON et al.

Supreme Court of South Carolina

December 13, 1902

Appeal from common pleas circuit court of Horry county; Gage, Judge.

Action by Solomon G. Lewis and W. H. Smalls against Quincy Hinson and others. From a judgment of nonsuit, plaintiffs appeal. Reversed.

Fred. D. Bryant, for appellants.

Johnson & Quattlebaum, for appellee.

GARY A. J.

The appeal herein is from an order of nonsuit. The complaint of Solomon G. Lewis and Wm. H. Smalls contains the following allegations: "(1) That they have lawful title to the following described real estate, situate in the county and state aforesaid, containing one thousand acres, more or less granted to W. H. Grice 6th day of May, 1816, and conveyed by said Grice to Enoch Stevens 7th October, 1821, lying in and around Cart Wheel Bay and Fifteen Mile Bay, as the plat accompanying the grant will show. (2) That plaintiffs are informed and believe that each and all the defendants except the first-named defendant, Quincy Hinson, derive or claim title from the first-named defendant (Quincy Hinson), either mediately or immediately; and they allege the same to be true, and each is in possession of a part of the same. How much each one claims or is in possession of or cultivates is unknown to plaintiffs. (3) And that the defendants each and all are in possession of part of the said real estate, and unlawfully withhold possession of the same from the plaintiffs." The answer contains the following defenses "Fourth. The defendants, as a further defense, allege that the plaintiffs have included in their complaint nine separate causes of action, to wit, one against Quincy Hinson one against John Williamson, one against H. G. Harrelson, one against W. W. Jordan, one against Melvin White, one against Curtis Williamson, one against B. H. Hinson, one against M. D. Elliott, and one against the wife of M. D. Elliott. The said nine causes of action are against separate and distinct parties, who own, occupy, and use their respective portions of land claimed by the plaintiffs by several and distinct titles, who work, use, and occupy their several portions of the said land separately and independently of each other, having no joint use, occupation, or title to the same, and there being nothing in the complaint to show what land each defendant owns, but all are joined as holding the whole land sued for. *** Sixth. As a further defense, they allege that upon a proper location of the grant to William H. Grice for one thousand acres of land on the 6th day of May, 1816, it covers none of the land in the possession of any of the defendants, and that upon the location of the same contended for by the plaintiffs there are only one hundred and ninety-six acres of the same in possession of these defendants, as follows: Quincy Hinson is in the possession of sixty-five acres, Melvin White is in the possession of twenty-three acres, M. D. Elliott is in the possession of thirty-three acres, B. H. Hinson is in the possession of twenty-five acres, and Gaston Harrelson and W. W. Jordan are in the joint possession of fifty acres,--all aggregating one hundred and ninety-six acres; and these portions are covered by older grants, a large part of the said grant to the said Grice being covered three or four times by older grants." At the conclusion of the testimony for the plaintiffs, the defendants made a motion for a nonsuit on the grounds "that there are eight or nine separate pieces of land involved; that the boundaries and extent of no one of the pieces is given in such a way that the jury can find a verdict in favor of the plaintiffs; that there is no evidence as to what the damages are on the part of Quincy Hinson, or either of the other parties; and that the proposition of the plaintiffs probably was that the court would be called upon to instruct the jury how their verdict would be reached; that the defense was distinctly set up in the answer, and that it was supposed that the plaintiffs would see the difficulty of the situation, and would endeavor to show that the various parties were in possession under Hinson, but that they could not proceed so as to obtain a verdict against Hinson, against Williamson, against Harrelson, against White, and others, without setting forth in their complaint the boundaries and extent of the claims of each of the parties."

Upon the motion for nonsuit the presiding judge ruled as follows: "This is an action to recover land. The plaintiffs cannot maintain the action unless they are tenants in common of the land in dispute. To constitute them tenants in common, they must hold by unity of title. They both claim under Hugh G. Stevens, who appeared to hold the fee up to the Civil War. The heirs at law of Hugh G. Stevens have conveyed to the plaintiffs; but some of the heirs made one deed to one of the plaintiffs, and some another deed to the other of the plaintiffs. Some of the deeds appear to convey only an estate to one of the plaintiffs for the life of the plaintiff. The matter is not mended by a subsequent deed in fee by all the heirs to the plaintiffs together. If one of the plaintiffs had before taken an estate for his life, it would not be merged in the fee by a deed in fee thereafter to that taken and another together. If the deeds from the heirs to one of the plaintiffs conveyed not a life estate, but the fee, then the heirs could not thereafter, by another deed, lodge the fee in the two plaintiffs together. The plaintiffs do not hold by unity of title. The motion for a nonsuit is therefore granted."

The plaintiffs appealed upon the following exceptions: "First. Because his honor erred in granting the motion, his honor holding that the deed No. 8, on the abstract herewith printed, from M. C. Jenrett, one of the heirs at law of Hugh G. Stevens, to Wm. H. Small, one of the plaintiffs, for her interest in the 1,000 acres granted to Wm. H. Grice, dated 6th May, 1816, which deed it was contended only conveyed a life estate, there being no words of inheritance either in the premises or the habendum clause of the deed, did not merge in the joint deed of herself and the other heirs of the said Hugh G. Stevens, afterwards made for the interest in fee in the said 1,000-acre grant to Solomon G. Lewis and W. H. Small, the plaintiffs (No. 10 on the abstract of title herewith printed), and in not holding that, whether it merged or not, either plaintiff was entitled to recover whatever he proved himself entitled to, though they were suing jointly; and therefore the motion should have been refused. Second. It is further respectfully submitted that the motion for a nonsuit should have been refused, because the widow of Hugh G. Stevens (now Mrs. Herring) was entitled to one-third of his real estate, and she never has conveyed her interest in the 1,000-acre grant to said Wm. H. Grice until she joined her three daughters in the title (fee simple) of date 23d February, 1893 (No. 10 on abstract of plaintiff's title), to Solomon G. Lewis and W. H. Small; and, in any event, plaintiffs jointly were entitled to her one-third interest, and should, in any event, have been permitted to go to the jury with it, and should not have been nonsuited. Third. Because, under the liberal practice of the Code, it is not necessary that the interests of all who are joined as plaintiffs should be of the same quantity or quality, but it is only necessary that those who are joined as plaintiffs should have some interest in common in the subject of the action; and, the plaintiffs having introduced competent evidence of a common interest in the subject of the action, the nonsuit should not have been granted."

The following notice of appeal was served by defendants "Take notice that the defendants intend to appeal to the supreme court from the ruling of the presiding judge, made herein at the October term of court for Horry county, in not sustaining defendants' motion for a...