Love v. Turner

• Decision Date: 28 November 1907
• Citation: 59 S.E. 529,78 S.C. 513
• Parties: LOVE v. TURNER.
• Court: South Carolina Supreme Court

59 S.E. 529

78 S.C. 513

LOVE v. TURNER.

Supreme Court of South Carolina

November 28, 1907

Appeal from Common Pleas Circuit Court of Cherokee County; R Withers Memminger, Judge.

Action by W. P. Love against M. J. Turner. From a judgment for defendant, plaintiff appeals. Affirmed.

See 51 S.E. 101; 56 S.E. 232.

Woods J., dissenting.

Exceptions 3, 4, 5, 6, and 7 are as follows:

"(3) That his honor further committed error in charging as matter of law that the supposed facts referred to in the nineteenth request would as matter of law operate as an excision from the period of plaintiff's term of possession of the Palmer heirs, although no mention was made in such request of any knowledge or absence of knowledge of such supposed facts by such heirs.

(4) That his honor further committed error of law in charging said twenty-eighth request; the error being that, even if the facts therein supposed were true, they were not sufficient to necessarily produce the legal conclusion therein announced to wit, that thereby plaintiff's adverse possession could not have begun before 1895, especially in view of the fact, as shown by the deeds of 1885 and 1886, that such deeds themselves declared that it was the intention of the grantors in said prior deeds of 1871 to 1875 to convey all the premises described in the deeds of 1885 and 1886.

(5) That his honor further erred in charging defendant's s twenty-third request, to wit: 'Under the deeds of conveyance introduced in evidence by the plaintiff, they convey only such title as they purport to convey, and, if after the conveyances were executed and delivered the grantors acquired any additional interest than is conveyed, such interest will not pass to the grantees as after acquired title by virtue of such conveyances'-the error being as matter of law that, as the deeds referred to therein were warranty deeds, the title subsequently acquired by the grantors inured to the benefit of the grantee thereof.

(6) That his honor erred in charging the defendant's twenty-fifth request, to wit: 'If neither the plaintiff nor any one under whom he claims was seised or possessed of the land within 10 years before the commencement of this action, or was out of possession for a period of 10 years before the commencement of this action, and if during that time the defendant or those under whom she claims held the same adversely to the plaintiff, then the plaintiff cannot recover'-the error being that as matter of law possession attends the legal title.

(7) That his honor erred in charging the defendant's twenty-sixth request, to wit: 'The will of Susan Love conveys no title to any land in this state'-the error being that such will did convey color of title."

The instruction referred to in exception 3 is as follows:

"If the heirs of G. B. Palmer, or any one lawfully acting for them, quit paying taxes on the land in dispute, disclaimed title to the same, allowed it to be sold for taxes under judgments, and permitted others to purchase the land, make improvements on it, and to occupy the land, for any considerable period, then such period cannot be included in any period in which the plaintiff could make any claim of title by virtue of the possession of G. B. Palmer's heirs."

The instruction in exception 4 is as follows:

"Where a party accepts a deed of conveyance to land from another, such acceptance is recognition of title in the grantor which the grantee cannot dispute. So, if in 1885 and 1886 W. P. Love accepted deeds from the heirs of G. B. Palmer, conveying the land in dispute, and if the Holloway land was not covered by the deeds of the heirs from 1871 to 1875, then the plaintiff recognized an outstanding title in the heirs to the land in dispute, and cannot show any title as against them by adverse possession before the acceptance of the deeds of 1885 and 1886."

J. C. Jefferiesand Stanyarne Wilson, for appellant.

W. S. Hall, Jr., and H. B. Carlisle, for respondent.

GARY A. J.

This is an action to recover possession of a tract of land containing 100 acres, and has heretofore been before this court on appeal. 71 S.C. 322, 51 S.E. 101. After the former trial the plaintiff amended his complaint by alleging title in himself, by adverse possession as well as by grant. The jury rendered a verdict in favor of the defendant, and the plaintiff has appealed.

Before considering the exceptions, it may be well, in a general way, to state the facts and sources of title upon which the respective parties rely. They are thus set forth by the plaintiff's attorneys: "G. B. Palmer, plaintiff's source of paper title, had granted to him in 1858 a tract of 576 acres, which included the 100 acres in dispute. He died in possession in 1865. His children (except plaintiff's wife) conveyed their interests to plaintiff. They made deeds at different dates. In the first set of deeds, from 1871 to 1875, the land was described as 449 acres. But in 1885 all of them except D. D. McCraw (and he in 1886) corrected the error of acreage by making new deeds to plaintiff, to wit, for 576 acres, stating therein: 'It was the intention of each one of us (in the deeds heretofore made) to convey all our right, title, and interest in the premises covered by said grant.' His wife afterwards devised to him her interest therein by will made in North Carolina, which had only two witnesses. She left no children. G. B. Palmer's estate was administered upon by plaintiff and T. W. Palmer, one of the sons. Plaintiff lived in North Carolina. T. W. Palmer fell out with plaintiff somewhere in the 60's and did not pay the taxes along about 1866 or 1867. The land was put up, and, as claimed by defendant, sold for taxes, and bid in by one A. P. Turner, who did not comply with his bid. Defendant does not contend that A. P. Turner acquired legal title at such alleged tax sale, but claims color of title therefrom in this way: Judgment was obtained in a suit on debt against A. P. Turner, and his interest, whatever it might be, was sold under execution, and bid in by Merrick (assignee of Casey & Cummings), and Merrick on June 17, 1886, made a quitclaim deed to G. S. Turner for $20. Defendant claims that G. S. Turner went into possession under that deed, and then began his adverse possession, which, they say, ripened into title June 17, 1896. The man whom Turner first put in possession was Z. B. Nance. Plaintiff claims that Nance was plaintiff's tenant and agent as to this land in 1885 and 1886, and proved it by documents. Nance was succeeded by Mrs. Wilkins and Mrs. Dormant; Turner claiming they were his tenants, and plaintiff claiming they were his since 1900, while those ladies claim that they were holding for themselves all along till 1900. The testimony was very conflicting as to the character of the possession of Mrs. Wilkins and Mrs. Dormant. Plaintiff proved, upon the subject of his title by possession, that G. B. Palmer was in possession from 1853 to his death in 1865. (Defendant's witness Harris says since 1840.) His heirs were in possession (of at least part, and thereby of the whole under grant covering whole) till they conveyed to plaintiff; and his own possession by tenants ever since, except when these ladies were in."

They are stated as follows by the defendant's attorneys "The defendant showed a prior grant to Moses Waters, dated August, 1817, for the purpose of showing title out of the state at the time of the Palmer grant. (2) A sale of the land in dispute by the sheriff of Spartanburg county for taxes of 1866, at which sale A. P. Turner became the purchaser. (3) A sale of the same tract under execution in the name of the state and Elizabeth Littlejohn against A. P. Turner in 1871, at which sale the land was bid off by Casey and Cummings, who transferred their bid to A. C. Merrick, to whom a deed was executed by G. Wash Thompson, sheriff...