Munn v. McWhite

• Decision Date: 08 July 1908
• Citation: 61 S.E. 970,80 S.C. 472
• Parties: MUNN et al. v. McWHITE et al.
• Court: South Carolina Supreme Court

61 S.E. 970

80 S.C. 472

MUNN et al. v. McWHITE et al.

Supreme Court of South Carolina

July 8, 1908

Appeal from Common Pleas Circuit Court of Florence County; J. C Klugh, Judge.

Action by S. A. Munn and another against J. A. McWhite and others. Judgment for defendants, and plaintiffs appeal. Reversed, and new trial granted.

The following are plaintiff's exceptions, referred to in the opinion:

"(1) His honor erred, it is respectfully submitted, in refusing to admit in evidence the application for loan and the sketch or plat attached thereto, the execution thereof having been proven, and it having been made to appear that this application and plat constituted a part of the same transaction which resulted in the mortgage which constitutes plaintiffs' source of title. He should have held that the description in the mortgage was ambiguous, and the testimony of this character was admissible to show the intention of the parties at the time of the execution of the mortgage.

"(2) His honor erred, it is respectfully submitted, in permitting the witness A. A. Myers, over the objection of plaintiffs, to testify that the Dundee Mortgage & Trust Investment Company bought the land in question, and sent a man from Columbia who inspected the three tracts, there being no evidence whatever that the Dundee Mortgage & Trust Investment Company purchased the land, and no proof having been introduced tending to show that the party in question had any right or authority to represent the Dundee Mortgage & Trust Investment Company.

"(3) His honor erred, it is respectfully submitted, in permitting the witness A. A. Myers to testify that the first time any objection was made by the owners of the land in question, and the first time any claim to the property in question was made, was after it came into the possession of the Atlantic Coast Lumber Corporation, the answer to the question being entirely irrelevant and injurious to the plaintiffs, on the ground that it tended to prejudice the jury against the plaintiffs' claim.

"(4) His honor erred, it is respectfully submitted, in permitting the witness A. A. Myers to testify, over the objection of plaintiffs, that the defendants built their home and began to live on this property immediately after the sale, and that they built on it in about two years; this testimony being irrelevant to the issue of title which was the only issue in the case, and tending to prejudice the jury against the plaintiffs' claim.

"(5) His honor erred, it is respectfully submitted, in refusing to allow the application of B. B. McWhite to the Dundee Mortgage & Trust Investment Company to be introduced in evidence when offered in reply to testimony of the defendants. He should have held that the declarations of B. B. McWhite contained in this application were admissible for the reason that they tended to contradict the testimony of defendant to the effect that B. B. McWhite owned lands which he did not mortgage.

"(6) His honor erred, it is respectfully submitted, in charging the jury that 'in a trial of a question like that presented in this case, and in a tribunal like that in which the case was tried, where the issue is a naked question of title to land depending on the description, we are bound to resort simply to the terms of the deed itself.' He should have charged that extraneous evidence may be introduced to show the surrounding circumstances and conditions of the parties to the contract at the time in order to enable the jury to ascertain and render certain a description uncertain in its terms.

"(7) His honor erred, it is respectfully submitted, in charging the jury as follows: 'It is not a question of what the parties intended to convey and failed to express in the deed, but what the deed itself expresses. This is not an equity court, where we can go into speculations about the intention of persons, but it is a court of law, where we are bound to take the exact terms used, and if those terms aided, as I have said, by proper evidence, can make the thing certain, then that may be done.' He should have charged that in this, as in all other cases, the intention of the parties is to be sought, and that intention can be arrived at by the consideration of all competent testimony.

"(8) His honor erred, it is respectfully submitted, in charging the jury as follows: 'If the description is so imperfect that it cannot by the terms of the instrument itself, aided by the surrounding circumstances, be made to include the property, then the plaintiffs must be held to have failed to establish their rights to recover the land.' He should have held that parol testimony might be given in evidence to explain the situation of the land, contrary to the face of the mortgage, if it were evident from the nature of the land itself that there was a mistake in the mortgage.

"(9) His honor erred, it is respectfully submitted, in refusing to admit the application and plat attached thereto offered in evidence and marked for identification 'X,' when the same were offered in reply to the testimony of J. A. McWhite, wherein he testified that the third tract of land described in the mortgage was known as 'the Toney Mitchell tract,' the purpose of the plaintiffs in offering said application and plat being to show by the declaration of B. B. McWhite that this testimony of J. A. McWhite could not possibly have been true; this declaration being to the effect that tract No. 3 did not join any other property; that he mortgaged all the property he owned; and therefore that there could not have been a tract No. 4 as testified to by J. A. McWhite.

"(10) His honor erred, it is respectfully submitted, in not admitting in evidence the application and plat above referred to when offered in reply to the testimony of J. A. McWhite and others to the effect that 'the Toney Mitchell tract' was a tract separate and distinct from the Home tract; the application and plat tending to absolutely contradict all of the testimony of this character introduced by the defendants.

"(11) His honor erred, it is respectfully submitted, in admitting in evidence, over the objection of plaintiffs, deed of B. B. McWhite to C. E. McWhite, dated the 20th day of March, 1885, and recorded the 20th of December, 1899, the same being irrelevant to any issue in the case, and tending to prejudice the jury against plaintiffs' claim."

Willcox & Willcox, for appellants.

J. P. McNeill and S.W. G. Shipp, for respondents.

POPE C.J.

The plaintiffs began their action on the 16th day of January, 1906, and in their complaint allege that they are the owners and entitled to 141 1/2 acres of land, situate in Florence county, in said state, and bounded on the northeast by Georgetown Road, on the southeast by lands of P. I. Bostick, and on the southwest and northwest by lands known as the Mary J. McWhite estate lands; and that the defendants are in possession and refuse to yield possession to the plaintiffs. In due time the defendants answered, denying each and every allegation of the complaint, and prays that the same be dismissed with costs. The case came on to be heard at the March term, 1907, of the court of common pleas for Florence county before Judge J. C. Klugh and a jury. After hearing of the testimony and the charge by his honor, the jury rendered a verdict for the defendants. Whereupon the plaintiffs appealed to this court upon 11 exceptions. We will now consider those exceptions. Let the exceptions be reported.

The first, fifth, ninth, and tenth will be considered together as they relate to the same subject. It seems that Capt. B. B McWhite of Florence county was so unfortunate in 1871 as to have recovered against him a judgment for the sum of $1,351.42, and that h...