Rumph v. Hiott

• Decision Date: 14 March 1892
• Citation: 15 S.E. 235,35 S.C. 444
• Parties: RUMPH v. HIOTT et al.
• Court: South Carolina Supreme Court

15 S.E. 235

35 S.C. 444

RUMPH v. HIOTT et al.

Supreme Court of South Carolina

March 14, 1892

Appeal from common pleas circuit court of Colleton county; IZLAR Judge.

Action by George Rumph against Josiah Hiott and others. Judgment for plaintiff. Defendants appeal. Affirmed.

The charge of the circuit judge was as follows:

"This case has been protracted for a long time, but no longer, perhaps, than its importance demands. The questions however, which you will have to consider in making up your verdict in this case will be very few, and the charge which I propose to give you shall be very short. This is an action brought by the plaintiff, Mr. George Rumph, against Mr Josiah Hiott and others, for the purpose of recovering certain real estate described in the complaint, and damages for withholding the possession thereof. The defendant in his answer denies the allegations of plaintiff, or, in other words, denies that this is the land of the plaintiff, and pleads, also, what is called in law the 'statute of limitations' as a bar to the action. Now, it is conceded gentlemen, on both sides in this case, that the parties claim from a common source of title, namely, Mr. George Rumph, the elder. That being the case, it is not necessary for either party to go back to a grant from the state. In an action of trespass to try title, where parties go back to a common source, they may rest there, because their titles, beyond that, are the same. So you will not be troubled to go beyond that to ascertain whether or not these parties have made out a complete title going back to a grant. It is also stated gentlemen, that the land in dispute is located and covered by a deed under which the plaintiff claims, or, in other words that it was the land of which Mr. George Rumph, the elder, died seized and possessed; so that there is no question as to the location of the land. I will state right here that the Sanders tract is not in issue. It is only the Richfield tract, as shown in the plat, which the surveyor has made, which is the issue in this case. The plaintiff having consented to a nonsuit in regard to the other tract, not having connected himself, as it were, with the Sanders tract, so that tract is not in issue in this case at all. It is only in reference to the Richfield tract. So, gentlemen, if you should come to the conclusion that the plaintiff is entitled to recover in this case, why there would be no difficulty as to the title to the land which you will have to consider, and there would be no difficulty as to the location of the premises. Now, the important point in this case, which you have doubtless learned from the argument of counsel here, is whether or not George Rumph died testate; that is, whether he died leaving a will,--a valid will. If you find, from the evidence in this case, that Mr. George Rumph left a valid will, then you will go a step further, and ascertain what were the contents of that will, so far as this devise of real estate was concerned; and this is the main question involved in this case

which you are to consider. Whether George Rumph died before or after 1853 makes no difference, provided you find the contents of the will to be, as testified to by Mr. Benjamin Stokes, in the following language: 'That the real estate was to go to his two boys, John and George, for the lifetime of each, and in the event of the death of one, leaving no issue living at the time of his death, it was to go to the survivor.' I say, if you are satisfied that that was the contents and language of the will of Mr. George Rumph, (in case you come to the conclusion that he left a will,--a valid will,) why, then, your verdict would have to be for the plaintiff for the land in dispute. If you come to the conclusion, from all the evidence in this case,--and you are to decide this case upon the evidence,--that that was not the language and contents of Mr. George Rumph's will, that it was not proven to your satisfaction, why, then, your verdict would have to be for the defendants, as it would not matter what the contents of Mr. George Rumph's will was outside of this fact here. Therefore, I say, it matters very little whether he died before 1853, or whether he died after 1853; the rule of law would be the same. Now, gentlemen, this is the issue which you are to consider. It is incumbent upon the plaintiff in an action of this kind to make out his case. That is, to recover on the strength of his own title, and not upon the weakness of the title of the defendant. That is the rule in cases of this nature.

I have been requested, gentlemen of the jury to charge you upon behalf of the plaintiff in this case: First. 'That if the jury believe from the evidence that the last will and testament of George Rumph, deceased, was admitted to probate in the court of ordinary, whether before or after the year 1858, such probate is conclusive evidence of its due execution and validity; and such probate is equally conclusive as to devises of real property as it is to bequests of personal property.' On that request I say this: I think the principles of law contained in this request are, in the main, correct. But I hold that the act of 1858 established only a rule of evidence, to be followed thereafter; and that when a will was admitted to probate prior to the passage of said act, and it is desired to prove such will as a part of a chain of title to real estate, the rules of evidence existing prior to the passage of said act should be observed. If the will is lost or destroyed, and the subscribing witnesses are alive and known, they should be called. If, however, the will is lost or destroyed, and the subscribing witnesses are dead or unknown, the execution may be established by other competent evidence satisfactory to the jury. Second. 'That one credible witness is sufficient to establish the contents of a lost will, and that the whole of the lost will need not be proved by such witness or any other person.' I charge you that request, modified as follows: In order to prove a devise of real estate in an action like the present. Third. 'That it is the duty of an executor or administrator cum testamento annexo, under which he acts, to defend the genuineness and validity of such will.' I charge you that that is the law. Fourth. 'That if the jury believe from the evidence that the defendants claim under and through the will of George Rumph, deceased, they are in law estopped from denying the due execution, genuineness, and validity of such will.' I so charge you. Fifth. 'That the defendants are estopped by the recitals in the deed from John Rumph to A. D. Blocker, under and through which they claim, from denying the execution, validity, and genuineness of said will.' I charge you that, as both parties admit that they claim from a common source. Sixth. 'If the jury believe that George Rumph, in his last will and testament, devised the lands in dispute to his sons, John and George, and if either died without lawful issue living at the time of the death of such deceased son, then over to the survivor. Then, if you further believe that John Rumph is dead, and that he died not leaving issue living at the time of his death, and that he died within the past ten years, then the plaintiff is entitled to recover.' I so charge you.

Now, gentlemen, the defendants have submitted certain requests to charge: First. 'You are not to decide this case upon the preponderance of the testimony. Unless the plaintiff has established the contents of the lost will, upon which he relies, by the clearest, most stringent and satisfactory evidence, you must find for the defendants.' Second. 'In order to render a verdict in favor of the plaintiff, you must first find, as a matter of fact, that the contents of the lost will, upon which he relies, have been established to your satisfaction by the clearest, most conclusive, and stringent evidence.' Third. 'Unless you find that the contents of the lost will and testament of George Rumph, the testator, have been established by the clearest, most satisfactory and conclusive evidence, you must find for the defendants.' These three requests, gentlemen, involve the same principle of law, and might have been included in one request. I cannot so charge you in the language of these requests, but will charge you what I conceive to be the law on that point by a modification of the sixth request to charge, as follows: 'To authorize the establishment of a lost will by parol proof of its contents, depending on the recollection of witnesses, the evidence must be sufficient to convince and satisfy you of the fact sought to be established; and you are to find the facts from the testimony, and not from your conclusions upon inference or probabilities.' Fourth. The fourth request I charge you as follows: 'If you find as matter of fact that George Rumph, the testator, died prior to the year 1853, and that the will provided that the real property was to be divided between the two sons, John and George, and, in the event that either should die without lawful issue, it was to go to the survivor, then you must find for the defendants.' I have already, in effect, charged you that. I told you that it did not matter whether he died before or after 1853. If you come to the conclusion that the language of the will was established, as contended for here by the plaintiff,--if you come to that conclusion, as I have already said, your verdict will have to be for the plaintiff. If you come to the conclusion that that was not the language of the will, your verdict will have to be for the defendants. Fifth. 'In the event that you find that any part of the will of George Rumph has been established to your satisfaction by the clearest, most conclusive and satisfactory evidence, then I direct that you

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