Massey v. Duren
| Decision Date | 29 August 1871 |
| Parties | MASSEY v. DUREN. |
| Court | South Carolina Supreme Court |
Trespass to try title. Plaintiffs claimed all the lands within the lines of a survey and plat made in 1829, which they gave in evidence as their color of title. The lands consisted, before the survey, of two adjoining parcels, having different owners, and plaintiffs claimed to have acquired title since the survey to all the lands within its limits by adverse possession, under an actual occupancy for ten years on one parcel. Defendant claimed the other parcel, but proved neither a paper title nor an actual occupancy for ten years. The presiding Judge charged the jury " that if they find that the plaintiffs or their tenants had held possession on any part of the land claimed by them for the space of ten years after the survey was made, that such possession would extend to the limits of that survey, regarding that survey and the plat produced of the same as color of title indicating the extent of their claim, together with the deeds upon which the survey was made." Held , That in this there was error, and new trial ordered.
Occupancy for ten years of one of two adjoining parcels of land included within the lines of a plat held as color of title held not to confer title by adverse possession against the owner of the other parcel.
Title by adverse possession cannot be acquired where no trespass is committed against the owner.
BEFORE THOMAS, J., AT LANCASTER, FEBRUARY TERM, 1870.
This was an action of trespass to try title.
The plaintiffs claimed all the lands included within the lines of a survey and plat of the lands made for them, or those under whom they claimed, in the year 1829, by J. H. Blair, a deputy surveyor. They consisted, before the survey, of two adjoining parcels of land, one called the Walker tract, and the other the Robinson land. The Walker tract, also, consisted originally of two parcels, one of them being part of a tract granted in 1788 to George Johnson, and conveyed to Andrew Walker in 1796, and the other a tract granted to Walker in 1792. The Robinson land consisted of part of the tract granted in 1788 to George Johnson, and afterwards conveyed to Brice Miller and of a tract granted in 1794 to Brice Miller. In 1795 Miller conveyed to Jane Robinson.
The plaintiffs gave in evidence a number of deeds and other papers, besides the grants, but failed to prove a paper title in themselves to the Robinson land, which the defendants claimed, and which was the only land in dispute in this action. They relied upon Blair's plat as color of title and proved an actual occupancy for ten years and upwards upon the tract granted to Walker, and some possession, but not for ten years, upon that part of the tract granted to Johnson, which was within the limits of the tract called the Walker tract.
The defendants failed to prove a paper title in themselves to the Robinson land, and their evidence to prove title by adverse possession was entirely insufficient.
The case was heard in this Court upon a report of his Honor the presiding Judge, which concluded as follows:
" Defendant's counsel on the trial requested that I should charge the jury that actual pedis possessio by the plaintiffs or their tenants, or the tenants of some of the parties under whom they claim, on the Robinson land , was necessary to entitle the plaintiffs to recover that land.
I considered, and so instructed the jury, that if they find that the plaintiffs or their tenants had held possession on any part of the land claimed by them for the space of ten years after the Blair survey was made, that such possession would extend to the limits of that survey, regarding that survey and the plat produced of the same, as color of title indicating the extent of their claim, together with the deeds aforenamed upon which the survey was made.
The jury found a verdict covering all the lands embraced in the Blair survey, the George Johnson grant, the Walker grant and the Brice Miller grant, referred to in this case.
The defendants moved before me for a new trial upon the grounds annexed to this statement, but, being satisfied with the finding of the jury, I refused the motion."
The defendants appealed, and now moved this Court for a new trial, on the grounds:
1. Because it is respectfully submitted his Honor should have charged the jury, as requested by defendant's counsel, that actual pedis possessio by the plaintiffs or their tenants, or the tenants of some of the parties under whom they claim, on the Robinson land, was necessary to entitle the plaintiffs to recover that land.
2. Because the only possession proven on the part of the plaintiffs was on the George Johnson grant and the Walker grant, and none whatever on the Brice Miller grant; and the plaintiffs proved title only to the Walker land and part of the George Johnson grant, and none whatever to the Brice Miller grant, and the jury erred in finding the last named land for the plaintiffs.
3. Because the proof was that the Robinsons and the defendants were the only persons ever in possession of the Brice Miller grant, and the said grant is called for as the Robinson land in the deed of William McKenna produced as part of plaintiffs' chain of title, and the jury erred in finding said land for the plaintiffs.
4. Because defendant, since the finding of the jury, has discovered convincing evidence that there never was any tenancy or possession by the plaintiffs or their tenants, on the Robinson land, before the year 1853, and the tenancy or possession by them, after the year 1853, was only for two or three years, and could not, in any event, confer upon them title to said land.
5. Because the verdict of the jury was contrary to the evidence adduced on the trial.
Allison, Kershaw , for appellants:
The plaintiffs, as the heirs of one Thos. and Jane Massey, claimed the land in dispute by adverse possession, relying on the mass of paper testimony as affording them color of title.
Defendant, Wylie R. Duren, claimed for his infant son, Thos. R. Duren, under Brice Miller, under deed of said Miller to one Jane Robinson, of date 1st December, 1795, and for color of title he relied on power of attorney and deed in pursuance thereof from one Wm. Robinson, heir of Jane Robinson, to Thos. R. Duren, dated in 1858. Copy grant to Brice Miller of date 24th September, 1794, embraces (as we contend) a portion of this land. Deed from Vickory to Miller bears date 14th December, 1792, and deed from Miller to Walker 25th January, 1796. Duren's house is outside the George Johnson grant, but within the Brice Miller grant, and also outside of the Walker grant. The location of the Robinson land includes the whole of the Brice Miller Grant and the George Johnson grant. The Circuit Judge declined to charge the jury that actual pedis possessio by the plaintiffs, or their tenants, on the Robinson land, was necessary to entitle the plaintiffs to recover that land, but charged that if they find that the plaintiffs, or their tenants, had held possession on any part of the land claimed by them for ten years after the Blair survey was made, that such possession would extend to the limits of that survey; regarding that survey, and the plat produced of the same, as color of title, together with the deeds upon which the survey was made. Plat of survey by J. H. Blair made in 1829. It is not pretended that the George Johnson and Walker grants cover the whole of the Robinson lands.
He who goes into possession of land, under a contract to purchase, holds adversely to all the world, except him from whom he bought.- Bank vs. Smyers , 2 Strob. 28.
Possession of a part under any of the titles, affording color, is a legal possession of only the whole comprehended within that title.-1 N. & McC. Rep., 374.
To acquire title by possession against a grant, there must be actual pedis possessio within the limits of the grant for ten years; a constructive possession arising from an actual possession outside of its limits is not sufficient.- Slice vs. Derrick , 2 Rich. 629.
There can be no constructive adverse possession of land against the owner where there has been no actual possession which he could treat as a trespass, and bring action for, and when a tract of land within the limits of three separate grants, was adversely held against the eldest grantee-held that the possession could not be extended by construction to land outside the limits of the eldest grant.- Steedman vs. Hilliard , 3 Rich. 103.
Moore , for respondents:
I. Plaintiff's possession actually commenced in 1816. The limits of the possession were defined by the Blair survey made for their ancestor July the 11th, 1829, and included the Walker, the Johnson and the Brice Miller grants, resurveyed again when he became the exclusive owner under the four deeds of the Commissioner in Equity, made 1st November, 1842.
But conceding that their possession did not commence until the Blair survey in 1829, their thirty years' possession from that time would be more than sufficient to raise the presumption of a grant, or of any intermediate conveyances of the land embraced in the plat.- Gray vs. Bates , 3 Strob. 500.
II. The defendant does not pretend that he has any title, and utterly failed even to locate the Jane Robinson deed under which he endeavored to take shelter upon any portion of the land claimed by plaintiffs.
III. Without the aid of legal presumptions the plaintiffs showed a chain of title to the Walker and Johnson grants, but because they were unable to show a similar chain of paper title to the Brice Miller, nearly the whole of which is however covered by the location of the Walker grant, by Blair in 1829, the defendant relying upon the principle decided in the cases of Slice...
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