Nash v. Gardner

• Decision Date: 30 December 1957
• Docket Number: No. 17372,17372
• Citation: 101 S.E.2d 283,232 S.C. 215
• Court: South Carolina Supreme Court
• Parties: K. C. NASH, Plaintiff-Appellant-Respondent, v. Etson GARDNER and Hattie Gardner, Defendants-Appellants-Respondents.

Page 283

101 S.E.2d 283

232 S.C. 215

K. C. NASH, Plaintiff-Appellant-Respondent, v. Etson GARDNER and Hattie Gardner, Defendants-Appellants-Respondents.

No. 17372.

Supreme Court of South Carolina.

Dec. 30, 1957.

McEachin, Townsend & Zeigler, Florence, for plaintiff-appellant-respondent.

Tison & Tison, Hartsville, for defendants-appellants-respondents.

STUKES, Chief Justice.

This action is between owners of adjoining lands in Darlington County, much of which is in Lynches River swamp. Their respective titles are derived from a common source, W. H. Gardner, who in the year 1890 obtained deed from Segars for 163 acres, more or less, described by corners and boundaries, but no distances; and deed from his father in 1900 for 360 acres, more or less, on the east side of Lynches River, described by bounds and with reference to a plat which is lost.

The complaint alleged the ownership by plaintiff of an undivided 35/36 interest, and the defendant Hattie Gardner 1/36 interest, in the home place, pasture and swamp of W. H. Gardner, deceased, containing approximately 700 acres; and the possession by the defendant Etson Gardner of the adjoining tract which was described as in the Segars deed of 1890, ante. It was further alleged that Etson wrongfully claimed portions of plaintiff's land, trespassed upon it, prevented survey of the boundary, thereby creating cloud upon plaintiff's title for which he has no remedy at law; damages were alleged and demanded for the trespasses, injunction prayed and that the court order a survey of the boundary.

The answer contained a description of the boundaries of the Segars tract as claimed by the defendant Etson Gardner and alleged that they were shown to plaintiff before his purchase and he acquiesced and agreed thereto. Trespasses by plaintiff on Etson's land were alleged, damages demanded, and that the boundary line be established as claimed. There were other defensive allegations, with which the appeals to this court are not concerned. Likewise, the court dismissed the cross-demands of the parties for damages, from which neither has appealed.

Under Circuit Court Rule 36 and with the consent of the parties, the court appointed T. E. Wilson, C. E., to make survey and plat of the property. Mr. Wilson's plat dated March 7, 1956, was returned. It shows total acreage of 971.2, including two parcels separately surveyed and represented upon the plat, 128 acres (marsh land) and 69 acres (upland), which are on the boundaries of the respective tracts of the parties and are in dispute. Mr. Wilson was assisted in the survey by his son who is also a surveyor; both of them testified.

There was a consent order of reference to the master to take the testimony, which was reported to the court on May 12, 1956. Arguments were heard on July 17, 1956. Before decision and on October 3, 1956, counsel for the defendants moved for an order allowing the defendant Etson Gardner to interpose the defense of res judicata and also for an order to reopen the case for the purpose of taking additional testimony. Argument was heard on the motions on October 13, 1956. On January 11, 1957, counsel for the defendants by letter to the court submitted affidavits for consideration in the motion to reopen. It was agreed by counsel that the court should order the sale in partition of the land owned by plaintiff and defendant Hattie Gardner because a partition suit between these parties was pending, which appears to be the action in which decision on appeal is reported as Nash v. Gardner, 226 S.C. 165, 84 S.E.2d 375.

By decree dated May 1, 1957, the court denied the defendants' motions to reopen and amend and found in plaintiff's favor as to one of the disputed tracts of land and in the defendant Etson Gardner's favor as to the other. Plaintiff and defendants appealed.

Upon consideration of the evidence we are of opinion that the judgment of the trial court is in accord with the preponderance of it. The opinion of the surveyors, in which that of one of them was weakened on cross-examination, was not followed by the court with respect to the 128-acre disputed tract; but there a main corner in controversy was shown to plaintiff by Etson before plaintiff's purchase of the land, in connection with his prior purchase of timber, and he assented to it. Richardson v. Register, 227 S.C. 81, 87 S.E.2d 40, and cases there cited. There was considerable other evidence tending to establish this corner (S on the plat) as it was found by the court. On the other hand, in the disposition of the disputed 69 acres the view of the surveyors prevailed over the testimony of Etson and his lay witnesses. The weight of the evidence (particularly the surveyors' testimony and the description in the Segars deed of 1890) concerning the location of it is clearer than that relating to the other disputed tract. We think that, under the evidence, the court correctly disposed of both of them, and the decree thereabout will be affirmed. There may be appropriately repeated the comment in the opinion on appeal in prior litigation between the parties, Gardner v. Nash, 225 S.C. 303, 82 S.E.2d 123, that the trial judge lives in Darlington County and knows the parties and probably at least the most of the witnesses, which enabled him to better evaluate the testimony.

Nevertheless, the case has been difficult to decide--made so by the meagre information concerning the boundaries of the lands, both of record and on the ground. The old marks and monuments of some of the corners of the lines have been obliterated and lost. This may be explained by the ravages of time during the long period when both tracts were owned by W. H. Gardner, and it was then of no importance to preserve evidence of the dividing lines; nor was it of importance after his death in 1926 until about 1942, when his children kept the lands together for the benefit of their mother for her lifetime. Each claimant has been found to own far more acreage than his muniments of title call...