Norwood v. Gregg

• Decision Date: 28 July 1903
• Citation: 45 S.E. 163,67 S.C. 224
• Parties: NORWOOD et al. v. GREGG et al.
• Court: South Carolina Supreme Court

45 S.E. 163

67 S.C. 224

NORWOOD et al. v. GREGG et al.

Supreme Court of South Carolina

July 28, 1903

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

Action by Josephine B. Norwood and others against William M. Gregg and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

W. F Clayton, for appellants. Wilcox & Wilcox, for appellees.

GARY Circuit Judge, Acting Associate Justice in place of Mr Justice Woods, disqualified.

This is an action at law to recover possession of certain real estate and damages for its detention. On the trial of the issues made by the pleadings in the circuit court the presiding judge (Klugh) directed a verdict for the defendants, and the appeal to this court is upon the exceptions imputing error to the circuit judge in instructing the jury to find a verdict for the defendants. The facts of the case are that J. Morgan Timmons, in whom it was admitted was the common source of title, was seised and possessed at the time of his death of two separate and distinct tracts of land lying adjacent, but having been acquired by him at different periods of time, and from different individuals. The first tract acquired by said J. Morgan Timmons is bounded as follows: "All that plantation and tract of land containing 420 acres, more or less, being land purchased by John M. Timmons from Robert T Askins, and more particularly described in a plat of the same made by Thomas Eady, deputy surveyor, dated 30th and 31st of December, 1835. Said land is situated [[situate] in the district of Marion, in said state, on the north side of Lynche's creek, bounded north by lands of the estate of John Leach, northeast by lands of the estate of A. H. Leach, east and south by J. J. Cox's land and Lynche's creek, and west by Robert E. Askin's land," etc. On the 1st day of January, 1859, the said John M. Timmons purchased from Benjamin P. Byrd the other tract of land, containing 135 acres, more or less, situated [situate] in Marion district, on the north side of Lynche's creek, lying on De Hay's Branch, and bounded north by J. Leach's land, on the east by John M. Timmons' land, on the south by Lynche's creek, and on the west by De Hay's Branch. This last-mentioned tract is the tract now claimed in this action by the plaintiffs.

The answer admitted the fact that J. Morgan Timmons died intestate, as alleged in the complaint, and at the time of his death and the commencement of this action the plaintiffs were his sole heirs and distributees at law. The answer however, alleged good title in the defendants to the property, in that they were purchasers of the property on the 4th day of October, 1888, at a judicial sale thereof in the county of Marion, and held the title to said premises from the master for that county (the property now being located in the county of Florence); that the judicial sale was in consequence of a partition of the premises among Josephine B. Norwood, J. Maxcy Timmons, and John M. Timmons, initiated by an action brought in Marion county on or about the 7th day of May, 1885, in which O. F. Weiters was plaintiff and the plaintiffs herein defendants; that, as a result of said action, the land in question was partitioned by a final decree of the circuit court, affirmed in the Supreme Court (25 S.C. 488, 1 S.E. 1), and thereafter duly advertised, sold, and purchased by William M. Gregg and A. J. Howard, who are now defendants, and that the then defenda...