Little v. Little

Decision Date04 May 1953
Docket NumberNo. 16739,16739
Citation75 S.E.2d 871,223 S.C. 332
CourtSouth Carolina Supreme Court
PartiesLITTLE v. LITTLE et al.

Leppard & Leppard, Chesterfield, for appellant.

H. F. Bell, Chesterfield, John D. Nock, Cheraw, for respondent.

BAKER, Chief Justice.

This case was previously before this Court. See Little v. Little, 215 S.C. 52, 53 S.E.2d 884. There, an order of the Circuit Court holding that the deed to the plaintiff of the premises involved in this action was invalid for nondelivery, was reversed and the case remanded to the Circuit Court for further proceedings consistent with the views expressed therein.

For a full statement of the facts and prior history of this action, reference may be had to the previous decision. However, a brief statement of the facts may assist in a better understanding of the issues involved herein.

The action was brought on or about March 23, 1948, by plaintiff, Julian Little, against the defendant, James W. Little, and plaintiff alleged in Paragraph 2 of his complaint as follows:

'That plaintiff is the owner of, and in the lawful possession of the following described real estate, to wit:

"All that certain piece, parcel, or tract of land in the above state and county, and being a part of the Lila W. Little home plantation, containing fifty (50) acres, more or less, and being bounded as follows: On the North by lands of Geo. T. Little; on the East by the right-of-way of the Atlantic R. R. Co., which Railroad separates said lands from other lands of grantor; on the South by lands of Campbell P. Laney, Jr., and on the West by further side of woods adjoining Laney line as far as wood extend, thence continuing in a Northern direction over cultivated areas, parallel to said Railroad to George T. Little line.'

'Said lands having been conveyed to plaintiff by Lila W. Little by deed dated December 30, 1942, which was duly recorded in the office of the Clerk of Court for Chesterfield County on December 31, 1942, in Deed Book 96, at page 320, and is more particularly described by a plat thereof made by W. H. Thrower, C. E., the 5th day of December, 1947, and recorded in Plat Book 6 at page 67.'

Plaintiff further alleged a wilful and continuing trespass upon said lands by defendant James W. Little, and interference with his possession, and asked for damages for the trespass and for an order of injunction.

Defendant James W. Little entered a general denial, and set up affirmative defenses wherein he alleged that the true owner of the lands involved was his mother, Mrs. Lila W. Little, and that he had farmed a portion of the premises described in the complaint with the consent and permission of said Lila W. Little. The remaining affirmative defenses are no longer involved, such defenses having been eliminated by the making of Mrs. Lila W. Little a party to the action, and by the prior decision of this Court holding the deed to Julian Little to be valid. It is significant to note that Mrs. Little took no active part in the second trial of the action nor is she an appellant herein.

When the case came on for trial before the Circuit Court and a jury, plaintiff, respondent here, contended that only the issue of damages for trespass was involved. This was opposed by appellant's counsel who contended that the western boundary line of the tract of land involved was in issue, and considerable testimony was taken and evidence introduced to establish the western boundary line. The trial Judge declined to withdraw the case from the jury and have an official survey made, and sent the case to the jury on the question of trespass, instructing them that the western boundary would have to be determined by them, and the jury returned a verdict for the plaintiff for $200. Thereafter, Judge J. Woodrow Lewis, upon plaintiff's application and after a hearing thereon, issued an order permanently enjoining the defendants James W. Little and Lila W. Little from trespassing upon the premises described in Paragraph 2 of the complaint. The defendant James W. Little appealed, assigning as error several specifications, all of which are encompassed in the question of whether Judge Lewis was in error in granting the permanent injunction, thereby holding by necessary implication that title vested in the plaintiff to the tract of 70.9 acres described in the second paragraph of his complaint.

Upon the first trial, which was had before the late and lamented Judge L. D. Lide without a jury, plaintiff introduced a plat of the premises made by W. H. Thrower, C. E., which was made at the request of the plaintiff, according to the description contained in the deed. According to this plat the tract of land contained 70.9 acres. Defendants introduced a map also prepared by Mr. Thrower, but at the request of Mrs. Lila W. Little, in which she attempted to have the western line run according to her verbal directions, and not according to the description in the deed, and this resulted in an acreage of 40.5 acres. Upon the second trial, the defendant James W. Little introduced a third plat made at his request by T. E. Wilson, C. E., September 26, 1949, between the two trials. The western boundary on this plat varied considerably from that on the first Thrower plat and resulted in a total acreage of 55.60 acres.

At the second trial, both of the surveyors testified fully as to how they arrived at the western boundary of this tract and both contended that they did so according to the wording of the deed. Nowhere along the way did either party ask for a Court ordered survey, as provided by Sections 8867 et seq., Code of 1942, § 57-452 et seq., 1952 Code of Laws, to settle a disputed boundary, or official survey under Circuit Court Rule 36. At the conclusion of the defendants' case, counsel for appellant moved that such a survey be made; but coming at such a late date, the trial Court refused the motion. Had the motion been timely made, the Court would probably have followed the method prescribed by the Code in settling boundary disputes.

Appellant raises the issue that the action is one of trespass quare clausum fregit and not an action of trespass to try title. The difference is, of course, that an action of trespass quare clausum fregit is based upon possession only and not necessarily upon legal title and sounds in monetary damages, whereas a suit in trespass to try title puts the title in issue and a finding determines not only the issue of trespass but also of title. Conner v. Johnson, 59 S.C. 115, 37 S.E. 240; Sims v. Davis, 70 S.C. 362, 49 S.E. 872; Warren v. Wilson, 89 S.C. 420, 71 S.E. 818, 992; Bethea v. Home Furniture Co., 185 S.C. 271, 194 S.E. 10; Love v. Turner, 71 S.C. 322, 51 S.E. 101. See also, Beaufort Land & Investment Company, v. New River Lumber Co., 86 S.C. 358, 68 S.E. 637, 30 L.R.A.,N.S., 243; Battle v. De Vane, 140 S.C. 305, 138 S.E. 821; Lane v. Mims, 221 S.C. 236, 70 S.E.2d 244.

In this case the plaintiff alleged that he was the owner of and in lawful possession of the premises described in the complaint, alleging a trespass on his property. Stated alone, this would be an action of trespass quare clausum fregit. The defendant however, not only denied both plaintiff's possession and title, but set up as an affirmative defense that the land was owned by Mrs. Lila W. Little, mother of the parties. Thus, having denied not only plaintiff's possession but also his title, the title was put in issue.

It seems to have been determined at an early date in this State that a plea of liberum tenementum (freehold) does not necessarily put title in issue, but that when such a plea is coupled with the plea of general issue, the title is thereby put in issue. Henderson v. Kenner, 1 Rich. 474, 482; Jones v. Muldrow, Rice 64; Shettlesworth v. Hughey, 9 Rich. 387; Parker v. Leggett, 13 Rich. 171 (also 12 Rich. 198, 200).

In the case of Shettlesworth v. Hughey, supra, there was an action of trespass to try title in which the plaintiff put in evidence the record of a former action of trespass quare clausum fregit brought by plaintiff against the defendant, where the defendant pleaded the general issue, and there was a verdict for the plaintiff. It was held that in the action of trespass quare clausum fregit the defendant, under the general issue, had put title in issue and the verdict, being against him on that issue, such verdict was conclusive on the question of title to the premises involved and that defendant was estopped by the verdict in the first action.

In the case of Parker v. Leggett, supra, which was likewise an action of trespass to try title, the plaintiff put in the evidence the record in a...

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6 cases
  • Miller v. Leaird
    • United States
    • South Carolina Supreme Court
    • 7 Diciembre 1989
    ...to try title" puts the title in issue and a finding determines not only the issue of trespass, but also of title. Little v. Little, 223 S.C. 332, 75 S.E.2d 871 (1953). Because an adverse possession claim is an action at law, the character of the possession is a question for the jury or fact......
  • Rush v. Thigpen, 17293
    • United States
    • South Carolina Supreme Court
    • 15 Mayo 1957
    ... ... Metze v. Meetze, S.C., 97 S.E.2d 514 ...         Essentially, this is an action of trespass to try title, Little v. Little, 223 S.C ... 332, 75 S.E.2d 871; and its nature was not changed by reason of its being cast under the declaratory judgment statute, ... ...
  • Metze v. Meetze
    • United States
    • South Carolina Supreme Court
    • 8 Abril 1957
    ...another surveyor who testified in his behalf and whose conflicting plat was in evidence. See for a similar situation, Little v. Little, 223 S.C. 332, 75 S.E.2d 871. It appears from the testimony that the surveyors, who were separately employed by respondents and appellant for the purpose of......
  • Rosenbaum v. S-M-S 32, S-M-S
    • United States
    • South Carolina Supreme Court
    • 18 Mayo 1992
    ...Whereas, in a suit for trespass, the focus of the action is the rightful possession of the property at issue. Little v. Little, 223 S.C. 332, 75 S.E.2d 871 (1953). It is to be noted in the case under consideration that the respondents were proceeding under a specific remedy created by the l......
  • Request a trial to view additional results

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