Mcnamee & Co. v. Huckabee

• Decision Date: 22 November 1883
• Court: South Carolina Supreme Court
• Parties: MCNAMEE & CO. v. HUCKABEE.

20 S.C. 190

MCNAMEE & CO.

v.HUCKABEE.

Supreme Court of South Carolina.

Nov. 22d, 1883.

1. After the settlement of the “Case” by the Circuit judge, leave was given by this court to appellant to file additional exceptions to the charge of the judge as settled by him.

2. On the submission of a “Case” to the Circuit judge for settlement, he corrected his charge in particulars as to which no amendments had been proposed. Held, that no appeal lay from such settlement.

3. A deed executed in 1857, but not recorded until December 7th, 1877, has priority over a deed to the same land executed in September, 1877, but not recorded until December 20th, 1877—more than forty days after its execution. Steele v. Mansell, 6 Rich. 437, approved.

4. The act of 1876 (16 Stat. 92) applied only to deeds executed after January 1st, 1877, and, therefore, by its repeal of all acts inconsistent with it, did not repeal the registry acts then of force so far as they provided for registration of deeds executed prior to 1877.

5. Deeds executed under the registry act of 1876 and not recorded within forty days, are valid as against subsequent purchasers and creditors for valuable consideration without notice only from the date of record.

6. The registry of deeds, which were recorded between December 14th, 1876, and May 1st, 1882, without the indorsement of the county auditor, was legalized by section 1778 of the general statutes.

7. The general statutes of 1882 was not a mere compilation of pre-existing acts and joint resolutions, but a statute having the force of law as such from the time it went into operation.

Before ALDRICH, J., Aiken, September, 1882.

The opinion fully states the case.

Messrs. Henderson Bros., for appellant.

Messrs. Croft & Dunlap and W. T. Gary, contra.

The opinion of the court was delivered by

MR. JUSTICE MCGOWAN.

This action was commenced March 11th, 1878, to recover possession of twenty acres of land having upon it deposits of kaoline clay. Within the lines of the tract there is a small parcel of an acre and a half which was not claimed.

The question was one of title. Both parties claimed under one Edmund Morris. The plaintiffs' claim was as follows: (1) Deed from Edmund Morris to the Southern Porcelain Manufacturing Company, bearing date May 27th, 1857. This deed was not recorded until December 7th, 1877, and then without any indorsement of the auditor of the county upon it. (2) Judgment of Harrison, assignee, against the Porcelain Manufacturing Company, lodged in Aiken county, September 10th, 1877, and also that of H. W. & J. L. Addison against the same, October 4th, 1877. Under these judgments the land was levied December 11th, 1877, and sold by the sheriff of Aiken county as the property of the said company on salesday of January, 1878, and bid off by the plaintiffs, to whom the sheriff executed a deed January 17th, 1878, which was recorded the next day.

The defendant Huckabee put in evidence a quit-claim deed for the premises from the said Edmund Morris, bearing date September 1st, 1877, which was recorded the first time, December 20th, 1877, without having the indorsement of the auditor upon it, and on the day of the trial of this case, September 21st, 1882 it was registered in the auditor's office and recorded again. The defendant Sharpton had himself made a party after the action had been commenced against Huckabee, and set up title to the premises under the statute of limitations; but he does not appeal, and it is not necessary to state particularly the nature of his claim.

The case came on for trial before Judge Aldrich and a jury. Besides the paper title of the parties above stated, it appeared that the defendant Huckabee had purchased the little parcel of an acre and a half, embraced within the lines of the twenty acres, from one Cliffe or his heirs, and his working it within the twenty acres, excited the attention of the officers of the Porcelain Company, and led to explanations. Schaub testified that, as superintendent of the company, he had, in 1875, “a conversation with defendant (Huckabee); said I understand you are digging on land of the company. He said he was not on the twenty acres, but on one and a half acres excepted; he was working on that parcel; but Huckabee was working on the twenty acres in the month of January, 1878.” This witness also testified that he was superintendent of the Southern Porcelain Manufacturing Company for ten years, from 1867 to 1876; several times examined the twenty acres, which was seven or eight miles from the works of the company; bored for clay there in 1868; he got the deed from Morris and kept it in his desk until it was recorded; and never turned it over to Davies after he was elected president.

In the spring of 1877, Huckabee, by appointment, met Mr. Davies, the president, in Augusta, and proposed to refer the matter of title to Mr. Jenkins. On that occasion President Davies said that “the secretary, Schaub, had informed him that Huckabee was on the land of the company; but he had investigated,and finding no record he thought the company did not own the twenty acres.” Davies had been elected president a short time before, and had not seen the papers, which, as before stated, were in possession of the secretary.

In August, 1877, John M. Cook, a civil engineer, was sent by the president to locate the land, who, taking with him Bauknight, the then superintendent of the company, went upon the land and informed Huckabee that they had come to make a survey of the twenty acres for the Porcelain Company. “Dr. Huckabee asked if they had any papers to make such survey by; and upon our saying no, Dr. H. (the defendant) refused to allow the survey to be made as a matter of business.” It seems that soon after this incident, Huckabee went to Georgia, where Morris lived, and obtained from him for $40 the quit-claim deed above mentioned, of date September 1st, 1877. It also appeared that when the land was sold under the judgments against the Porcelain Company, and bought by the plaintiffs, in January, 1878, the defendant Huckabee caused public notice to be given that “he had a title to the twenty acres.”

The plaintiffs presented a number of requests to charge, some of which were charged, and others refused or charged with modifications. Under the charge the jury found “for the defendant Huckabee the land in dispute.” The plaintiffs appealed; but the parties, not being able to agree as to what was the charge, referred it to the judge to settle some particular point, and he reported his charge in full, embracing points upon which there had been no disagreement, as well as those specially referred to him. After the report of the charge, this court gave the appellants leave to file additional exceptions, made necessary, as was alleged, by the authentic charge as reported by the judge himself.

First. The plaintiffs' first request to charge was as follows: “That the deed from Morris to the Southern Porcelain Company [covering the land in dispute] being older than, and having been recorded before the deed from Morris to Huckabee, though recorded after the date of said last deed, takes priority in law over the same, which was recorded after the statutory time; and, thence, that the plaintiffs have a better title to the said land than the defendant Huckabee, and must recover as against him.” The judge charged: “This is good law if the deed to the company was recorded; but that is the very question of law submitted. Was it recorded? The requisites of the law were not complied with, and although the paper may have been placed in the record book, it is no record unless the prerequisites have been observed.”

Second. The plaintiffs' second request to charge was “that the judgments under which Sheriff Holley sold the land in dispute to the plaintiffs, having become liens upon the said land before the deed of Morris to Huckabee was recorded, no subsequent laches of the Porcelain Company could defeat the lien of said judgments; and said sale transferred a title to the plaintiffs paramount to the title of the defendant Huckabee.” The judge charged: “Admit this to be so; then the question for you is, Did the purchaser have notice of Huckabee's claim on the day of sale through Mr. Jordan? This becomes important in considering the question of notice. In addition, if the company's deed was not recorded, then there was no lien. If the deed of the company is not genuine, that is an end of the case. Did President Davies, by word or deed, induce or encourage the defendant to buy? If he did, defendant's title cannot now be disputed. Was the keeping of the deed so long from the record a fraud on the defendant?”

The plaintiffs' exceptions to the charge as settled, were: “1. That his Honor erred in modifying the first request to charge preferred by the plaintiffs by adding thereto. [See statement of charge, ante.] 2. That his Honor erred in modifying the second request preferred by plaintiffs by adding thereto, &c. [[[[[[See statement of charge, ante.] 3. That his Honor erred in submitting to the jury this question: ‘Was the keeping of the deed so long from the recording office a fraud on the defendant?’ whereas, it is submitted that the non-recording of the deed cannot be termed fraud under the circumstances of this case. 4. That his Honor erred in settling his charge in this, that though the attorneys admitted that his Honor charged the plaintiffs' first request without qualification as stated in the settlement, and refused to charge their second request in toto, yet his Honor, in settling the case, settles the same differently; whereas, said questions were not submitted to him for settlement.”

In reference to the last ground of appeal, we need only say that we know of no authority for an appeal from the settlement of a case by the judge who heard it. The alleged error is certainly not one of law, of which we have cognizance. There must be some final arbiter, and an end of...