Love v. Turner
| Decision Date | 06 April 1905 |
| Parties | LOVE v. TURNER. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Cherokee County; Gage Judge.
Action by W. P. Love against M. J. Turner. Judgment for plaintiff and defendant appeals. Reversed.
Hall & Willis, for appellant. Stanyarne Wilson and J. C. Jeffries for respondent.
The contest in this case is over a tract of land of 100 acres situated in Cherokee county, and known as the "Holloway Tract." The exact nature of the action is in dispute. Plaintiff claims it is for the recovery of possession of real property. This is denied by defendant, who contends that the only cause of action stated in the complaint is for trespass upon the land. The circuit judge held it was an action for the recovery of real property, and as such the cause was tried.
Plaintiff claimed under the following chain of title set out in his complaint: (1) Grant to G. B. Palmer, January 18, 1858, the survey dated December 15, 1857, being attached. (2) Warranty deeds from all the heirs of G. B. Palmer, except Mrs. Love, conveying to plaintiff all their rights and interests in the Palmer Gold Mine tract of land, of which the Holloway tract was a part. (3) Will of Mrs. Susan L. Love, executed in the presence of two witnesses in North Carolina, purporting to devise to her husband, the plaintiff, all of her property. Plaintiff also introduced tax receipts showing that one of the Palmers paid taxes on the gold mine tract in 1842, 1846, 1850, 1857, 1861, 1862, 1863, 1870, 1871, and 1873, and that plaintiff himself paid taxes on the same tract from 1872 to 1898, inclusive, with the exception of 1873, 1878, and 1891. The land was returned as 484 acres in 1874, from 1880 to 1885, and from 1893 to 1898; all the other years as 576 acres, the number named in the Palmer grant. Plaintiff testified that this difference in acreage was without his knowledge or consent.
Defendant, in her answer, denies plaintiff's title, setting up title in herself, and also pleads the statute of limitations, adverse possession, estoppel, and the pendency of another suit on the same cause of action. Defendant's documentary and record proof was as follows: (1) Sheriff's sale book, showing the sale of the land in dispute by the sheriff under tax execution, May, 1868. (2) Sheriff's sale book, showing the sale of the same land in May, 1871, under the judgment in the case of Elizabeth Littlejohn v. A. P. Turner, the land being bid in by A. L. Casey and A. W. Cummings, who assigned their bids to A. C. Merrick. (3) Deed of the Holloway tract from the sheriff to A. C. Merrick, dated October 11, 1879. (4) Deed from A. C. Merrick to Geo. S. Turner, conveying the whole tract in dispute, June 17, 1886. (5) Deed from Geo. S. Turner to Duncan & Sanders, conveying one-half interest in the land, November 24, 1888. (6) Deed from Duncan & Sanders to R. B. Powell, conveying the same one-half interest, September 3, 1894, Powell giving a mortgage to secure the purchase money. (7) Sale of this one-half interest by the mortgagees, Duncan & Sanders, under power in the mortgage, and conveyance of Powell by the mortgagees, as his attorneys in fact, to themselves, April, 1896. (8) Deed of their one-half interest from Duncan & Sanders to W. N. Turner, defendant's husband, March 15, 1899. (9) Partition suit between W. N. Turner and the heirs of Geo. S. Turner, under the decree in which the entire Holloway tract was sold by the clerk of court, and bid in by Mrs. M. J. Turner, she receiving a deed therefor from J. Ebb Jefferies, clerk of court, December 5, 1899. Defendant offered in evidence a grant, with survey attached, to Mose Waters, dated August 6, 1817, which purported to convey the Holloway tract. She did not attempt to connect herself with this grant, however, but introduced it merely to show that the state had already parted with its title at the time of the Palmer grant in 1858.
Evidence was offered tending to prove that G. B. Palmer continued in possession under his grant until 1865, when he died intestate, and his two sons and the plaintiff administered upon his estate. His son, T. W. Palmer, who seems to have represented the estate as to this land, having failed for several years to pay the taxes, it was sold for taxes in 1868, and bid in by A. P. Turner, but it appears that he failed to comply with his bid. There was also evidence to the effect that plaintiff was in possession of the land prior to 1886, but that George S. Turner entered under color of title in that year; and defendant offered much testimony for the purpose of showing that George S. Turner and his heirs, under whom she claimed, had held it adversely for the statutory period. The jury found for the plaintiff the possession of the land in dispute, and $1 damages, and defendant made a motion for a new trial, which was refused. An order was then made by the court adjudging that plaintiff recover possession of the land, and enjoining the defendant from trespassing upon or interfering with it. From this judgment the defendant appealed. The effort will be made to discuss the questions involved in the appeal without special mention of each of the 28 exceptions, covering 12 pages of the record.
The defendant first insists the action was for trespass on land, and not for the recovery of its possession, and therefore the circuit judge erred in charging that the jury might find "for the plaintiff the land in dispute and so many dollars." Even if defendant's view of the nature of the action were correct, he would not be entitled to a new trial for error in the form of the verdict; the finding for the recovery of the land would be rejected as surplusage, not being responsive to the pleadings. 22 Ency. P. & P. 977; Massey v. Duren, 7 S. C. 310. The verdict for damages would be decisive of the title. Sims v. Davis, 70 S.C. 362, 49 S.E. 872.
But the defendant introduced a grant from the state to a third party, not for the purpose of supporting her own title--for she did not pretend to connect herself with it--but for the sole purpose of showing that there was a title outstanding older and better than the title under which the plaintiff claimed. In an action to recover possession of real estate or of trespass to try title, the plaintiff must establish his title against the world, or show that he has title from a common source, and the defendant, therefore, may defeat the plaintiff's claim by showing title in a third party; but in an action of trespass quare clausum fregit, the plaintiff has to establish possession only, and the burden is on the defendant to show title to himself, or that he entered upon the land under a license from the true owner. That is, in the latter action, if he relies upon the title of a third party, it is necessary for him not only to prove such title, but that he rightfully entered under it. Connor v. Johnson, 59 S.C. 131, 37 S.E. 240.
To determine, therefore, whether the defendant could avail himself of the older grant to a stranger to defeat the action, it is necessary to decide whether, under the pleadings, the action is for the recovery of land or in the nature of trespass quare clausum fregit. It is essential to an action of the former class...
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