Mitchell v. Cleveland

• Decision Date: 09 March 1907
• Citation: 57 S.E. 33,76 S.C. 432
• Parties: MITCHELL v. CLEVELAND.
• Court: South Carolina Supreme Court

57 S.E. 33

76 S.C. 432

MITCHELL v. CLEVELAND.

Supreme Court of South Carolina

March 9, 1907

On Rehearing, March 26, 1907.

Appeal from Common Pleas Circuit Court of Spartanburg County; Klugh Judge.

Action by Minnie V. Mitchell, in her own right and as guardian of Margaret Mitchell, against Jesse Cleveland. Judgment for plaintiffs, and defendant appeals. Affirmed.

The following are defendant's exceptions:

"(1) Because the presiding judge erred in allowing the introduction of evidence against the objections of the defendant, as follows: (a) The answer of Margaret Trimmier in the case of Dodd against Rowland et al.; the error in its introduction being: It undertook to prove the fact that a deed had previously been made of the land involved in this suit to H. J. Rowland for the benefit of Margaret Trimmier by Margaret Trimmier's collateral statement, rather than by the best and competent evidence, viz., the deed itself. It undertook to show the contents and terms of the deed just mentioned when the deed itself was the best evidence of such contents and terms. The answer amounted at best to no more than a statement under oath of Margaret Trimmier as to the provisions of the deed to H. J. Rowland, referred to, and it was incompetent to introduce such a statement to show the contents and terms of such deed, even if there was proof that such deed had been lost. The introduction of this answer was further incompetent, for the reason that there was no sufficient evidence before the court of the loss of said deed alleged to have been made to H. J. Rowland. The answer was not competent evidence as a statement of Margaret Trimmier made against interest, so as to be binding upon the defendant in this case. (b) The answer of H. J. Rowland in the case of Dodd against H. J. Rowland et al.; the error in its introduction being: It undertook to prove the fact that a deed had previously been made of the land involved in this suit to H J. Rowland for the benefit of Margaret Trimmier, by H. J Rowland's collateral statement, rather than by the best and competent evidence, viz., the deed itself. It undertook to show the contents and terms of the deed just mentioned when the deed itself was the best evidence of such contents and terms. The answer amounted at best to no more than a statement under oath of H. J. Rowland as to the provisions of the deed to H. J. Rowland, referred to, and it was incompetent to introduce such a statement to show the contents and terms of such deed, even if there was proof that such deed had been lost. The introduction of this answer was further incompetent, for the reason that there was no sufficient evidence before the court of the loss of said deed alleged to have been made to H. J. Rowland. The statements in the said answer were mere hearsay and, therefore, incompetent. The plaintiffs were allowed to introduce in evidence report of the case of Trimmier against Darden, in 61 S.C. 220, 39 S.E. 373. This was error, for the reason that it was not the best evidence of the records and other facts therein contained, and further, because all the matters in the said action were res inter alios acta, and not binding upon the defendant here.

(2) Because the presiding judge erred in refusing to allow the witness, R. J. Gantt, to testify in behalf of the defendant that in examining the title to a part of this Trimmier land, he was unable to find the record of any deed for such land to Margaret Trimmier, F. M. Trimmier, or any other Trimmier; the error being that inasmuch as the plaintiff claimed title under F. M. Trimmier, who was for many years clerk of court, it was entirely competent for the defendant to show by this evidence that he allowed an irregular and incorrect record of the deed under which the plaintiffs claimed through him to remain on the books, did nothing to have it corrected, or to make any claim of title to the property involved in this action, and, therefore, he and the plaintiffs claiming in his right were estopped from asking a recovery in this action, and the evidence was competent on such question of estoppel.

(3) Because the presiding judge erred in refusing to allow the defendant to introduce in evidence as a circumstance tending to show that F. M. Trimmier made no claim to this property a letter written to him by his brother, Theodore Trimmier, of date August 14, 1859, holding that the contents of such letter were hearsay evidence.

(4) Because the presiding judge erred in refusing to sustain the position taken by defendant on motion for nonsuit that the plaintiffs had failed to trace their title back to a grant, or to such a possession as would presume a grant, or to a common source as the defendant's only claim of title, and that there was no evidence tending to show any of these facts, and in not sustaining the motion for a nonsuit on this ground.

(5) Because the presiding judge erred in not sustaining the defendant's motion for nonsuit, on the ground that the evidence offered by the plaintiffs showed affirmatively that Margaret Trimmier had claimed the title to the land in dispute from a source and by a title prior to, entirely different from, and independent of, the title through which the plaintiffs claim, and that, therefore, there was no question of fact to be submitted to the jury.

(6) Because the presiding judge erred in not holding on the motion for nonsuit that even if Margaret Trimmier's only claim of title was through the deed from H. J. Rowland to Hiram Mitchell, executed in 1843, that under a proper construction of that deed, Margaret Trimmier had the right upon the death of F. M. Trimmier, without children, to convey or will the fee simple title to the land embraced therein, and the proof showing that she had done this, the motion for nonsuit should be granted.

(7) Because the presiding judge erred in not holding, on the motion for nonsuit, that even if the only claim of title Margaret Trimmier had to the land in dispute was through the deed of 1843, inasmuch as the estate of F. M. Trimmier held in the land was a remainder interest, and by his will he undertook to give the remainder interest to his mother for life, the life estate so undertaken to be given to his mother was absolutely void, and all subsequent interests depending thereon, including those given under F. M. Trimmier's will to the plaintiffs in this action, failed, and in not sustaining the motion for nonsuit on this ground.

(8) In not holding on the motion for nonsuit that under a proper construction of the will of F. M. Trimmier, and under the laws of the state of South Carolina, the said F. M. Trimmier did not intend, and if he did intend, could not have legally effected such intention, viz., to give his remainder

interest after the death of Margaret Trimmier, the only interest he had in the estate, if he had any interest at all therein, to Margaret Trimmier for life, and at her death to his sister, Margaret L. Trimmier, for life, and on her death to the plaintiff, Minnie V. Mitchell, and on her death to her children, and that as the testator could not have had any such intention under a proper construction of the said will, he must be considered to have died intestate as to his interest in such lands, if he had such interest, and if not, on this ground sustaining the motion for nonsuit.

(9) Because the presiding judge erred in not holding, on the motion for nonsuit, that the plaintiff, Margaret Mitchell, was not entitled to recover in this action, as she could not in any event have any interest in the land before the death of her mother, and in not, therefore, at least sustaining the defendant's motion for a nonsuit as to the plaintiff, Margaret Mitchell.

(10) Because the presiding judge erred in not holding, on the motion for nonsuit, that the deed of 1843 from H. J. Rowland to Hiram Mitchell, trustee, was absolutely void, and the previous deed to H. J. Rowland, if such deed ever existed, was also absolutely void, for that, according to the plaintiff's own testimony, both deeds were, if made at all, made for the express purpose of defeating creditors of William Trimmier, and the latter deed for the further reason that it was never recorded, and is not, therefore, on this ground, granting the motion for nonsuit.

(11) Because the presiding judge erred in not holding, on the motion for nonsuit, that even under the plaintiff's testimony, Mrs. Margaret Trimmier had a beneficial interest in the land in dispute prior to the deed of 1843, and that the only way in which the said Margaret Trimmier could legally part with her interest in the said property, so as to cut off her heirs at law from inheriting the same, was by renouncing her inheritance under the statute of the state of South Carolina then of force, and there being no evidence of such renunciation, it was error for the presiding judge to refuse to grant the motion for nonsuit on this ground.

(12) Because the presiding judge erred in charging the jury that the fact that Mrs. Margaret Trimmier could not take the life estate given to her in the land in dispute by F. M. Trimmier under his will, and if he did will it to her, did not necessarily destroy the gift of the second life estate of Margaret L. Trimmier, and the third to the plaintiff in this action, when he should have held that the failure of the first life estate destroyed all subsequent estates resting upon it.

(13) Because the presiding judge erred in charging the jury that if they believed from the testimony that a deed was made by H. J. Rowland to Hiram Mitchell, as trustee for Margaret Trimmier for life, and at her death to Franklin M. Trimmier, and that subsequently F. M. Trimmier willed his remainder interest to his mother, Margaret Trimmier, and at her death to Margaret L. Trimmier, and at her

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