Mitchell v. Smyser
| Decision Date | 05 May 1960 |
| Docket Number | No. 17652,17652 |
| Citation | 236 S.C. 332,114 S.E.2d 226 |
| Parties | Olivia P. MITCHELL, Plaintiff-Appellant, v. Janie Sue SMYSER, Eloise Perkins Hall, Pinkey Perkins Brooks, James Perkins, Janie Perkins, Fountaine Bradley, Berthine Ross, Maggie Ragsdale, Walter Perkins, Richard Roe et al., Defendants-Respondents. |
| Court | South Carolina Supreme Court |
William W. Bennett, Florence, for appellant.
Willcox, Hardee, Houck & Palmer, W. Laurier O'Farrell, Florence, for respondents.
This appeal arises out of an action brought for partition of certain real estate located in the City and County of Florence.
In her complaint, plaintiff alleges that she has an interest in such property by way of descent from her father, Wellington Perkins, who died intestate, that certain defendants had an interest in the property and prayed for an Order establishing their respective rights and for sale of the premises. One of the defendants, Janie Sue Smyser, filed answer alleging title through James and Walter Perkins, admittedly sons of Wellington Perkins, and that they were the sole heirs-at-law of Wellington Perkins.
Plaintiff sought to establish her interest by showing a common law marriage between her father and Martha Perkins, the birthof three children to this union, the death of her mother and father, and the survival of herself and a sister as heirs-at-law. The defendant sought to establish her interest by showing the common law marriage of Wellington Perkins to Isabella Perkins, the birth to them of James and Walter Perkins, and the death of Wellington Perkins, survived by his widow and the two sons.
The crucial question for determination was who was the lawful wife of Wellington Perkins, and the Circuit Judge found her to be Isabella. Plaintiff in this appeal challenges the correctness of this finding. The question being one at law, we are not at liberty to pass on conflicting evidence except that we may review the Circuit Decree for the purpose of determining whether or not there is any evidence reasonably warranting the factual conclusions reached by the Circuit Judge. Campbell v. Christian, 235 S.C. 102, 110 S.E.2d 1; Johnson v. Johnson, S.C., 112 S.E.2d 647.
Plaintiff claimed that sometime between December 22, 1890, and June 8, 1911, Wellington Perkins married Martha Gary Perkins and introduced as exhibits a mortgage recorded in the Office of the Clerk of Court of Florence County, dated December 22, 1890, given by Wellington Perkins but having no renunciation of dower thereon, and a deed recorded in the Office of the Clerk of Court, dated June 8, 1911, signed by Wellington Perkins with the renunciation of dower thereon by Martha Perkins as his wife.
James Perkins, an...
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Collier v. City of Milford
...the evidence is in conflict, the determination of whether there exists a common law marriage is for the trier. Mitchell v. Smyser, 236 S.C. 332, 333-34, 114 S.E.2d 226 (1960); Johnson v. Johnson, supra, 235 S.C. 551, 112 S.E.2d 647; Campbell v. Christian, supra. The findings of the trier of......
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...the finding of the trial judge on this cause of action. Snell v. Parlette, 273 S.C. 317, 256 S.E.2d 410 (1979); Mitchell v. Smyser, 236 S.C. 332, 114 S.E.2d 226 (1960) (in this equitable action for partition of real property, Supreme Court found scope of review for determination of legal is......