Ouzts v. McKnight

• Decision Date: 28 June 1920
• Docket Number: 10448.
• Citation: 103 S.E. 561,114 S.C. 303
• Parties: OUZTS v. MCKNIGHT.
• Court: South Carolina Supreme Court

103 S.E. 561

114 S.C. 303

OUZTS v. MCKNIGHT.

No. 10448.

Supreme Court of South Carolina

June 28, 1920

Appeal from Common Pleas Circuit Court of Florence County; S.W. G Shipp, Judge.

Action by Mary McKnight Ouzts against W. B. McKnight. Decree for defendant, and plaintiff appeals. Reversed, with direction.

Willcox & Willcox, of Florence, for appellant.

McNeill & Oliver, of Florence, and Geo. E. Dargan, of Darlington, for respondent.

GAGE J.

The parties hereto are children of the same parents. Their controversy is about 75 acres of land, intermediate two parcels confessedly owned by each, thus not accurately but illustratively:

RPT.CC.1920135254.00010

(Image Omitted)

The plaintiff owns X; the defendant owns Z; Y is in issue betwixt them.

The disagreement arose out of these circumstances, alleged in the complaint: The parties owned the whole parcel of about 1,000 acres as tenants in common, and they undertook in 1908 to partition it in kind. A surveyor was employed to that end and commissioners in partition were appointed. The intention of the commissioners was to make an equal division in kind that is, to set off to each party 500 acres of land. A plat to that end was made, and on it the correct line A, B, was laid down; but in laying that line down on the ground it was mistakenly run as A, C, thus giving the plaintiff only 425 acres and giving the defendant 575 acres. The action is to remedy that mistake, and to now do that which was intended by all parties to have been done at the outset.

The defendant by answer "admits * * * the allotment of one-half each to the plaintiff and the defendant of the * * * said tract of land"; alleges that "the parts of the said land belonging to the plaintiff and defendant are incorrectly described on (the) plat," etc.; alleges that interchangeable deeds were made by each party to the other "and to equal proportions in area"; and sets up 10 years' adverse possession of the disputed parcel as a bar to the action.

The testimony was taken by the master, and from it the circuit court concluded that the plat indicated the true line betwixt the parties, and the plat was part of the deed; that the defendant supposed that the line run on the ground was that run on the plat, and he thought the plaintiff was in actual possession of an equal quantity of land with himself; but that nevertheless the defendant went upon the land in issue and has held it...