Mullis v. Winchester

• Citation: 237 S.C. 487,118 S.E.2d 61
• Decision Date: 12 January 1961
• Docket Number: No. 17735,17735
• Court: United States State Supreme Court of South Carolina
• Parties: Carl W. MULLIS, Respondent, v. Annie Burns WINCHESTER et al., Appellants.

Page 61

118 S.E.2d 61

237 S.C. 487

Carl W. MULLIS, Respondent, v. Annie Burns WINCHESTER et al., Appellants.

No. 17735.

Supreme Court of South Carolina.

Jan. 12, 1961.

Bell & Bell, Lancaster, Wilson & Clark, Monroe, N. C., for appellants.

Richards, Caskey & Richards, Lancaster, for respondent.

MOSS, Justice.

Carl W. Mullis, the respondent herein, instituted this action on March 21, 1957, pursuant to Sections 65-3301-65-3306, of the 1952 Code of Laws of South Carolina, to remove a cloud on and quiet title to a tract of land, described in the complaint as containing 310 acres, more or less. The pleadings admit that prior to September 17, 1931, E. C. Winchester had a good fee simple title to this tract of land and that on said date he conveyed same to one R. H. Burns. The said deed is of record in the office of the Clerk of Court for Lancaster County, South Carolina, in Deed Book D, at page 36. It further appears that E. C. Winchester died intestate in the year 1936 and that R. H. Burns died testate. The appellants in this action are either the heirs at law of E. C. Winchester or the devisees of R. H. Burns. It also appears that the taxes on the aforesaid tract of land were not paid and that the sheriff of Lancaster County, South Carolina, pursuant to a tax execution, issued against Mrs. E. C. Winchester, levied upon and sold the said tract of land to one John S. Chonis. The defaulting taxpayer having failed to redeem said real estate, the sheriff of Lancaster County conveyed the said tract to John S. Chonis, which said deed is of record in the Clerk of Court's office for Lancaster County, South Carolina, in Deed Book I-3, at page 168. It further appears that John S. Chonis did, by deed dated December 14, 1943, for a consideration of $8,500, convey the said 310 acre tract to Carl W. Mullis, the respondent herein, and this deed was recorded in the office of the Clerk of Court for Lancaster County, South Carolina, on January 3, 1944, in Deed Book J-3, at page 445. The complaint also alleges that the respondent had been in actual, open, hostile, continuous, exclusive and notorious possession of the said tract of land since December 14, 1943, when he purchased same as aforesaid. The answer of the appellants, in so far as this appeal is concerned, denied the allegation of adverse possession contained in the complaint.

This case came on for trial before the Honorable George T. Gregory, Jr., Judge of the Sixth Circuit, and a jury, on May 12, 1958. It was stipulated that the respondent relied entirely upon adverse possession under color of title. It was further admitted that the tax deed heretofore referred to was invalid. It was agreed also that the only issue for trial was the question of whether the respondent had acquired title to the property in question by adverse possession.

At the close of the testimony in behalf of the respondent, the appellants made a motion for a nonsuit, which motion was refused by the trial Judge. Thereafter, the appellants announced that they would present no testimony in their behalf. The respondent and the appellants then made a motion for a directed verdict, which said motions were refused. The Court submitted to the jury the single question of whether the respondent acquired title to the aforesaid tract of land by exercising actual, open, notorious, hostile and adverse possession of said property, exclusively and continuously for a period of ten years or more, prior to the commencement of the action. The jury answered this question in favor of the appellants. Thereupon, the respondent moved for judgment non obstante veredicto and on January 18, 1960, by order, the motion was granted, and it was adjudged that the respondent had acquired title to the subject premises by adverse possession. The sole question for determination upon this appeal is whether the respondent established title to the property in question by adverse possession. This question, of course, embraces the further question of whether there was error on the part of the trial Judge in setting aside the verdict of the jury, which was in favor of the appellants, and granting a judgment in favor of the respondent non obstante veredicto. In order to constitute adverse possession, which results in obtaining title to property, the possession must be actual, open, notorious, hostile, continuous and exclusive for the whole statutory period. It may be stated as a general rule that claimant's possession must be such as to indicate his exclusive ownership of the property. Not only must his possession be without subserviency to, or recognition of, the title of the true owner, but it must be hostile thereto and to the whole world. 1 Am.Jur., Adverse Possession, Section 130. Gregg et al. v. Moore, 226 S.C. 366, 85 S.E.2d 279; and Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301.

The respondent alleged in his complaint that he acquired title to the premises in question by adverse possession. We have held in numerous cases that the burden of proof of adverse possession is on the party relying thereon. Lynch v. Lynch, supra. We have also held that ordinarily the question of adverse possession is one of fact for the jury and only becomes one of law for the Court when the evidence is undisputed and susceptible of but one inference. McIntosh et al. v. Kolb et al., 112 S.C. 1, 99 S.E. 356; Atlantic Coast Line R. Co. v. Searson, 137 S.C. 468, 135 S.E. 567; and Lynch v. Lynch, supra.

The issue of title by adverse possession being one of law, our factual review of it is limited to determination of whether there was any evidence reasonably sustaining the verdict in the lower Court. Fogle v. Void, 223 S.C. 83, 74 S.E.2d 358; Phillips v. DuBose, 223 S.C. 224, 75 S.E.2d 56; and Seagle et al. v. Montgomery et al., 227 S.C. 436, 88 S.E.2d 357.

The deed of John Chonis to the respondent constituted color of title. This deed contains a minute and definite description of the 310 acre tract of land and there is no doubt as to the identity of the tract of land conveyed. In the case of Graniteville Co. v. Williams et al., 209 S.C. 112, 39 S.E.2d 202, 207, it was said:

'Color of title means 'any semblance of title by which the extent of a man's possession can be ascertained'. Turpin v. Brannon, 3 McCord, 261. It 'is anything which shows the extent of occupant's claim'. Sprott et al. v. Sprott et al., 114 S.C. 62, 96 S.E. 617. 'The object of color of title is not to pass title. In that case it would be title, not color of title. The only office of color of title is to define the extent of the claim and to extend the possession beyond the actual occupancy to the whole property described in the paper. * * * It is by no means necessary that the paper should be in the form of a deed. A bond or even a receipt would be sufficient'. Fore v. Berry, 94 S.C. 71, 78 S.E. 706, 709, Ann.Cas.1915A, 955. Also, see Gray v. Bates, 3 Strob. 498. Manifestly, an instrument in order to constitute color of title need not be valid as a muniment of title. The extent of the occupant's claim founded on an instrument of writing is not dependent upon the validity of such instrument. Frady v. Ivester, 129 S.C. 536, 125 S.E. 134. A deed may be color of title although the grantor was without interest or title in the land conveyed. 'There is a material difference between proving a deed as a part of a chain of title and introducing a paper to show the extent of the party's possession'. Kennedy v. Kennedy, 86 S.C. 483, 68 S.E. 664, 669.'

Hence, when one enters upon land, under color of title, his actual possession of a portion of the property will be constructively extended to the boundaries defined by his color of title. Haithcock v. Haithcock, 123 S.C. 61, 115 S.E. 727; Kennedy v. Kennedy, 86 S.C. 483, 68 S.E. 664.

It is provided in Section 10-2422, of the 1952 Code of Laws, as follows:

'Whenever it shall appear (1) that the occupant or those under whom he claims entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question or upon the decree of judgment of a competent court and (2) that there has been a continued occupation and possession of the premises, or of some part of such premises, included in such instrument, decree or judgment under such claim for ten years, the premises so included shall be deemed to have been held adversely, except that when the premises so included consist of a tract divided into lots the possession of one lot shall not be deemed a possession of any other lot of the same tract.'

Section 10-2423 of the 1952 Code of Laws, provides:

'For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases:

'(1) When it has been usually cultivated or improved;

'(2) When it has been protected by a substantial enclosure;

'(3) When, although not enclosed, it has been used for the supply of fuel or of fencing timber, for the purposes of husbandry or for the ordinary use of the occupant; and

'(4) When a known farm or a single lot has been partly improved the portion of such farm or lot that may have been left not cleared or not enclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.'

Carl W. Mullis, the respondent herein, owns and operates the Mullis Lumber Company in Lancaster, South Carolina. It was testified that in the course of his business he purchased tracts of land in order to get the timber therefrom and for the future cutting of timber growth thereon. It was further testified that of all the numerous tracts of land purchased by the respondent, all were bought for the purpose of cutting timber therefrom and growing timber thereon, and as to the...