Powers v. Rawles

• Decision Date: 11 April 1922
• Docket Number: 10860.
• Parties: POWERS v. RAWLES ET AL.
• Court: South Carolina Supreme Court

112 S.E. 78

119 S.C. 134

POWERS v. RAWLES ET AL.

No. 10860.

Supreme Court of South Carolina

April 11, 1922

Appeal from Common Pleas Circuit Court of Georgetown County; R. W Memminger, Judge.

Action by Joseph B. Powers against James M. Rawles and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The charge of the circuit judge is as follows:

Mr Foreman and gentlemen of the jury: It now becomes the duty of the court to instruct you upon the points of law involved in this case. There have been a great many points raised and discussed, one way or another; and on behalf of the defendants here there have been passed up to the court, in compliance with the rule, a number of what are known as requests to charge. They are abstract propositions of law, or points of law, that counsel desires the court to call to your attention; and, if the court fails to charge any of those points in his general charge, it is held to be an error on the part of the judge. But the judge is not required to read those requests to the jury, but has the right to make a general charge covering all of those points which he deems to be essential for the jury to understand in their proper deliberations on the case. Those requests cover 19 pages, closely written typewritten paper and you saw when they were passed up that the court was paying attention and listening to the testimony, and I will have to put in the record that I consider it to be absolutely impossible for any human being to have taken all of those points, covering 19 pages, and gone over them with any degree of intelligence whatever, so as to be able to lay them before the jury. As counsel well says, there are few people, if any, that are deeply versed in real estate law. Each one demands particular study; and yet, under our system, they have to be thrown on the court in the trial, and upon the jury, who know nothing about the controversy until they hear the pleadings read. Therefore this court does not feel warranted in taking the time of the jury in attempting to read these things in detail to you; it would take me at least a half hour to do it, and it would convey practically nothing to you whatever. Therefore the court is simply going to charge you on such points of law as it conceives to be essential for you to have before you.

Now, what are the issues involved in this case? You so often hear so many papers read in court and so much discussion and such a mass of matters brought into a case that the real issue becomes obscured; but we nearly always find, after we have threshed these things out, the issue becomes simple and can be easily stated in a brief time. What is the real controversy between these parties? The plaintiff here, Joseph B. Powers, comes into court and claims that he has a deed for this property, that it was duly executed and delivered to him, and that he has never been in actual occupation of the property; that is, that he never exercised anything like going on it and working on it. But he claims that he had this paper title, and that he has paid the taxes on the property. He claims, and it is a principle of the law, that from that paper title would follow under the law a presumption that he was in possession. A man may never have been on the land he buys, but if he buys it and has a good paper title to it, the law creates a presumption of possession, and any one going in as a trespasser against that presumption becomes responsible in damages, no matter how small it be.

The defendants come in and claim that this particular piece of land in dispute here is not included in his land, and, furthermore, that their ancestor, George E. Scott, was in possession of this land under a deed, without any notice of any prior deed having been made to the plaintiff; and therefore his possession was a lawful one, and that they are not liable to be mulcted in damages for going on the premises; but are entitled to do so, and are the owners of the property.

"Now, the question that arises at the threshold for your determination is: Is this four-acre piece--has it been proved by the plaintiff, by the greater weight of the evidence, to be within the limits of the deed which he has produced here? Unless he satisfies you by the greater weight of the testimony that those four acres are included in his deed, then, of course, his case fails altogether. Now, if he has proved that to you by the greater weight of the testimony, the next thing incumbent on him to prove, to get the presumption, of possession, which I have told you the law gives to the paper title, he must satisfy you by the greater weight of the testimony that he has a paper title within the rules of the law upon which he bases his right to this property. In order to prove that under the law, he must show you that he has a paper title and that it was duly executed and that it was delivered. Now, you have heard all the testimony upon that point. As you know, a deed would not become effective until delivery, and delivery before the death of his father who, he claims, made the deed to him.

Now, that is another question you will have to determine, if you pass the first one. Has he satisfied you by the greater weight of the testimony that there was a delivery of that deed to him, and that it was duly executed? And it having apparent marks of mutilation on it, he must satisfy you by the greater weight of the testimony that those erasures were made before the delivery of the deed; or give you such explanation of those erasures as will satisfy you that he himself was not a party to the making of the erasures which would in any important particular destroy the effect of the deed. That is the burden the law places upon him primarily who is seeking to establish his right to the possession of the land.

Now, gentlemen, there is a question of the delivery of the deed. Unless he satisfies you by the greater weight of this testimony that this deed was delivered, and was delivered to him before the death of his father--because, to make a deed and put it aside to be delivered after death, the deed never becomes effective--he must show you that the deed was delivered to him before the death of his father. After a deed is delivered to a man it becomes effective; and he has the right to put it aside to be kept by some one else if he wishes to do so. A deed becomes effective upon its delivery; and then a party might conceal it if he sees fit, so far as the custody of it is concerned, but it does not become effective until it is delivered. Now, if he has failed to make out all of those points, of course, his case would fall to the ground.

Now, what is the case sought to be made on the part of the defendant, the ancestor of these parties defending? It is that their ancestor had a point blank deed, that you have seen in evidence, for this very four-acre tract of land; and that that deed was duly executed and delivered to him and carried an absolute title to him; and that he was in possession under that deed, and continued in possession under that deed and that these defendants were in possession up to the time of the beginning of the action and were not trespassers on the premises. Now suppose you find he has such a deed, and there is no dispute about the fact that he has a deed, that Mr. Scott got a deed for those four acres; but what, on the other hand, does the plaintiff claim? The plaintiff claims that Mr. Scott got that deed with full notice and knowledge that that very property had been deeded off to the boys, to this particular plaintiff, one of the sons of John J. Powers. The plaintiff claims that he took that deed knowing that the father of this young man had already deeded off that property, and that therefore his father would have no right to deed it to anybody else. Now the object of recording an instrument is to give notice. If the facts were in this case that the deed to the son was on record before the deed was made to the ancestor of the defendant, then that would be notice under our laws that the record of the deed gives notice. That is what it is intended for, constructive notice, whether he has seen the record or not; the law gives that notice that a prior deed exists. But it is equally well established that, if a deed be not recorded, yet, if you have actual notice, if the jury decides that he knew when he took this deed--that the ancestor of these defendants knew when he took that deed that a prior deed had been executed to this plaintiff, covering that very land, why then his deed is not as good as against that prior deed because the father, having once conveyed it, could not take it back and convey it to some one else; if the father had conveyed it and delivered the deed to another person. That is a question that the jury will have to decide, if they arrive at that point in the consideration of the case.

It appears to the court that those are all the points involved in the case. First take up the question whether this land is in the deed of the plaintiff. Is this four acres included in his deed? If not, his case falls to the ground. And if it is included in the deed, was the deed to him executed and delivered? If not, the case goes out. If it was, take up the matter of the alteration in the deed. If the alterations were made subsequent to the execution of the deed, and no satisfactory explanation has been given to you on behalf of the plaintiff, as he is required to do as to any mutilation if no satisfactory explanation as to that has been made, exonerating him from any blame in respect thereto, he can not base his title on that deed. If the change was made before execution, then it is all right; if made after execution, it may be all right, if he gives you a satisfactory explanation of how the...