Lyles v. Fellers

• Decision Date: 08 December 1926
• Docket Number: 12116.
• Citation: 136 S.E. 13,138 S.C. 31
• Parties: LYLES v. FELLERS.
• Court: South Carolina Supreme Court

136 S.E. 13

138 S.C. 31

LYLES v. FELLERS.

No. 12116.

Supreme Court of South Carolina

December 8, 1926

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Mary E. Lyles against Edgar M. Fellers. Judgment for defendant, and plaintiff appeals. Affirmed.

The following is a portion of the court's charge, and appellant's exceptions 5, 6, 8, and 9:

In order to sue a trespasser, if one is a trespasser, one does not necessarily have to have the title in the first instance. One can come in and allege that one has the possession.

One may not have had that possession more than a day, maybe a year more or less, but, if one has that possession, and another invades that possession, one has a right to come into court and sue that other for damages. If one has made out that case of possession, and by that the law means actual possession of the premises in dispute, then, if it is so set up in the answer, the defendant can bring the title of the property into dispute before the court, then it might happen that the jury has to decide who owns the property.

Now she alleges that she had the possession of it, peaceable and quiet possession, and that that was invaded.

Now, she admits in court here that she had no deed to it, that it was a verbal gift of the land to her, but that did not take away from her her right, whether she had been given it or not. That did not take away her right to come into court, if she had actual possession, and sue another who invaded that possession, because the law considers possession a very strong characteristic of a property right. It is something which the law will protect, not only because it deals with property, in which, after all, any country finds its economic strength, but because in connection with that possession, if others are allowed to interfere with that possession unduly or improperly, it might give rise to breaches of the peace, it might eventually give rise to murder; so that, if one has actual possession, and the plaintiff has to prove that to settle it, that burden is on her to prove that she had actual possession of that property, and, if she had that, the law would presume what? In order to protect that possession as against another-an outsider entering on it-the law would then presume that she had actual title; if she showed actual possession, and was occupying the piece of land, or was using it, or that piece of land was cultivated, to the world, or presented to the world that she actually was entitled to it, and had possession of it, the law would presume from that possession that she had title to it, or it would say otherwise if she did not show that. But that presumption, even if she has proven actual title, that presumption of title would only be prima facie. It would not be conclusive; but, if she has proven actual possession, then the law would assume or presume that she had title, then what would happen? She would be entitled to recover if that possession was invaded, unless the defendant has come in and shown by affirmative evidence that he had a good or perfect paper title, because, if he should come in and prove that he has a perfect paper title, the presumption, which the law might indulge in from her actual possession, if she had actual possession, that she had a title, would fall in the face of a perfect paper title.

(5) Because it was error for his honor to charge the jury, in effect, that they might find that the defendant had proven a perfect paper title to the lot in question, when the deeds from the Brodie estate to the Fair lot called for the Ferguson lot as its western boundary, and when the Ferguson lot from the Brodie estate calls for the Fair lot as the eastern boundary and no mention was made in either of the deeds of any physical marks or boundaries, and plaintiff had offered testimony tending to show that the disputed line is the boundary between the two lots.

(6) Because his honor refused the plaintiff's seventh request to charge, which was as follows: "There is no evidence in this case to show actual possession of the disputed lot in question by the defendant or any one through whom he claims prior to the time when it is alleged in the complaint that he tore down the fence which had been erected by the plaintiff"; the error being that the said request contained a correct proposition of law applicable to the issues raised by the pleadings and evidence.

(8) Because his honor charged defendant's sixth request, as follows: "Where defendant's title is founded on a written instrument, he does not have to show inclosure or cultivation"; the error being that by such request the judge charged the jury, in effect, that defendant's title was founded upon a written instrument, and that plaintiff's title was not.

(9) Because his honor charged the defendant's eighth request, which was as follows: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for ten years before the commencement of such action," and then adding: "I charge you that. You notice that expresses it that 'in every action for the recovery of real property, or the possession thereof.' This action or this claim brought by the plaintiff did not start out with the idea of being an action for the recovery of real property, but for the invasion of possession which she alleges she had at that time, but this section does apply to the issues that have arisen in the case since the issue of title has now come in and it is for the jury to decide"; the error being that first the trial judge first charged that plaintiff's action had been, in effect, changed to an action for the recovery of real property, and was, in effect, a charge as to the weight to be given by the jury to plaintiff's testimony as to her possession of the lot in question.

James S. Verner, of Columbia, for appellant.

Weston & Aycock and U. L. Rast, all of Columbia, for respondent.

RAMAGE, A. A. J.

This is the second appeal in the above case. The first appeal will be found in 131 S.C. 387, 127 S.E. 841, to which reference is here made.

Many years ago Alexander Brodie owned a tract of about 20 acres of land situate, north of Elmwood avenue and east of Scott's alley, now known as Sumter street, in which tract the land in controversy was embraced. At the death of Mr. Brodie his land was cut up into lots which were sold by the commissioner in equity under an order of court on February 2, 1863. The lots were platted by a surveyor, but the plat has been lost. It is admitted that the parties to this action trace their title to Alexander Brodie as a common source. The lot lying at the intersection of Scott's alley and Elmwood avenue, said to contain about eight-tenths of an acre (there being no measurements given in the deed), was sold to Robert Ferguson. Through a succession of deeds the northern portion of the Ferguson lot came into the ownership of Mr. W. H. Lyles, the grantor of the plaintiff; the lot conveyed to Mr. Lyles in his deed being bounded on the "east by land then or formerly owned by Simeon Fair," This deed was dated March 15, 1886.

The lot on the east had been conveyed by the commissioner in equity to Simeon Fair. While it appears that the lot of Mr. Lyles was bounded on the east by the Fair lot, yet there is nothing in the record to show the actual boundary between the two lots before the deed next mentioned.

On September 17, 1901, Mr. W. H. Lyles made a deed to the plaintiff, being the northern portion of the lot previously conveyed to him, in which plaintiff's lot was described in part as "extending back 175 feet and bounded on the east by property of _____ from which it is separated by a ditch."

The ditch referred to was at that time a barrier between the plaintiff's lot and the lot lying to the east thereof, being wide and deep. This ditch began at the southeastern Ferguson corner, and extended in a northerly direction. Mr. Lyles limited plaintiff in the deed made to her to the ditch as her eastern boundary. The dispute is as to the land east of the ditch. Plaintiff claims that the land was the property of Mr. W. H. Lyles, who gave the property to her by a parol gift; that Miss Fannie Earle conveyed the land to Mr. W. H. Lyles on March 15, 1886; and that the lot in question here was contained in the deed from Miss Fannie Earle to Mr. W. H. Lyles, which said deed is claimed by plaintiff as a "color of title," by reference to which she (plaintiff) claims the land by adverse possession. She claims to have gone into possession of said land when the parol gift was made to her by her father, Mr. W. H. Lyles, in 1901, when he made the deed to the other lot just across the ditch.

This action is one for damages for trespass upon plaintiff's possession of the lot described in the complaint. In his answer defendant pleaded a general denial, and also a second defense, as follows:

"That neither the plaintiff, her grantor, predecessor, nor ancestor, has been seized or possessed of the premises described in the complaint within ten years next preceding the commencement of this action; but this defendant, his grantor and predecessor in title, has been in actual, continuous, open, and notorious possession of the premises described in the complaint under claim of ownership founded on a written instrument for more than ten years next preceding the commencement of this action. And this defendant alleges that he,

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