Smith v. Du Rant

• Citation: 113 S.E.2d 349,236 S.C. 80
• Decision Date: 08 March 1960
• Docket Number: No. 17624,17624
• Parties: Mary Lawrence Gaddy SMITH, Respondent, v. William M. DU RANT, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 349

113 S.E.2d 349

236 S.C. 80

Mary Lawrence Gaddy SMITH, Respondent, v. William M. DU RANT, Appellant.

No. 17624.

Supreme Court of South Carolina.

March 8, 1960.

Henry E. Davis, Florence, for appellant.

McEachin, Townsend & Zeigler, Florence, E. H. Whitehead, Lake City, for respondent.

STUKES, Chief Justice.

This action is for the possession of a lot of land fronting 212.37 feet on U. S. Highsay 52 in the town of Lake City to which respondent claims title as the heir at law of her parents. Appellant pleaded title in himself and further that respondent is estopped to claim the property by her silence during his use of it.

Respondent became of legal age on the 9th day of December 1946. The action was commenced by service of the summons and complaint on March 7, 1956. It is seen that insufficient time elapsed for title to have been obtained by appellant by adverse possession. His counsel conceded during the trial that adverse possession was not an issue and added, 'I will make the case squarely on the proposition that under Judge Lide's decree we go up to 56A. * * * It is a construction of Judge Lide's decree.' The meaning of this quotation will be understood upon statement of the facts which follows.

Respondent's father, T. A. Gaddy, who owned land including that in controversy, died intestate in 1935 leaving as his heirs at law respondent and her mother, Mrs. Mamie B. Gaddy who died intestate in 1953. The latter procured a subdivision of the property and a plat of it by E. L. Isenhower, Surveyor, (now deceased), dated Sept. 20, 1938, which was duly recorded. Upon it there was shown a triangular lot, 59A, at the intersection of the highway and a street now called Moore Street. Adjoining it on the northeast is lot 58A, with 58 feet frontage on the highway, then lot 57A of 65 feet frontage and adjoining the latter on the northeast lot 56A of 100 feet frontage. The evidence established that the plat was in error and the lot in dispute of 212.37 feet frontage lies between lots 57A and 56A, having been overlooked and omitted from the plat by the surveyor.

In the fall of 1945 respondent's mother and respondent by guardian ad litem, she being a minor, brought an action in the Court of Common Pleas, making appellant defendant, for authority for the sale and conveyance of respondent's undivided interest in lots 57A, 58A and 59A to appellant. The latter was their tenant in a filling station on lot 59A.

Upon proper proceedings the court by decree dated Sept. 13, 1945, authorized the sale and directed conveyance by the master to appellant of the then minor respondent's interest in the property, describing first the triangular corner lot 59A on the Isenhower plat and also, quoting from the decree, 'All those two certain pieces, parcels or lots of land adjoining the above described lot, situate, lying and being on U. S. Highway 52, and known and designated as the northern portion of lot 58A, less a road or street passing through the southern portion thereof, deeded to Town of Lake City, S. C., and lot 57A as shown on the plat hereinabove referred to.' The master's deed to appellant and the separate deed of respondent's mother to him contained the same description as has been quoted from the decree. It is noted that no boundaries of lot 57A were given although the erroneous plat, to which reference was made, showed it as joining on the northeast lot, 56A which, as a matter of fact, it did not, the disputed area lying between them. Lot 56A is now, and has long been, the property of one Burroughs.

The testimony indicates that appellant used the area for three years as a wood yard and also during two or three years planted crops on a portion of it. In 1951 he conveyed to the State Highway Department an additional right of way for the widening of the highway; and in 1955, after respondent demanded possession and shortly before this action was brought, he fenced the property.

In ignorance of the error in the Isenhower plat appellant did nothing until word of it came to her from another surveyor, Floyd, in November 1955. He and his associate in 1947 made a survey of the whole town of Lake City and discovered the error in the Isenhower plat. He is of admitted professional qualifications and no effort was made to contradict his testimony. He testified that he obtained appellant's deeds from him and told him, in effect, that the disputed area was not his property. Appellant requested the surveyor-witness 'to be quiet about it', say nothing and, quoting again, 'in a process of years he (appellant) would take the property'. The witness replied that he did not want any part in that. Then appellant proposed, 'How about you buying their (sic) property and let me buy it from you?' This conversation occurred in 1954. Mr. Floyd's (and his brother-associate's) plat of the property in question and that adjoining, made in 1955, was admitted in evidence. It conclusively shows the error of the Isenhower plat and, therefore, fully supports respondent's contention.

Burroughs, who owns lot 56A as shown on the Isenhower plat, which bounds the disputed area on the northeast, and moved his business there in 1953, testified that he used some of the area for a driveway and storage to which no one objected at the time and he knew nothing of claim to it by appellant. He measured and found 'about 200 feet extra.' He asked appellant who owned it and appellant replied that he did not know. Quoting from his testimony: 'I said it was some extra footage in here, and if it is agreeable with you (appellant) we will use the property together and not put a building on it until we found out whose it is. He agreed to that.' Later the witness and appellant agreed to divide the property for their respective use, but afterward appellant offered to rent it to the witness which the latter declined.

The appellant denied in his testimony that he told Burroughs that he did not own the disputed area and said that the latter used it by his permission. But appellant testified that he did not know whether he admitted to Surveyor Floyd that he did not own it. He testified to the operation of a wood yard on the property for two or three years, to the planting of tobacco on it for two years and truck for one year, then he let it 'lay out'. He fenced it after demand of respondent for possession in 1955, and put up no trespass signs.

At the conclusion of the evidence for respondent (plaintiff) the appellant (defendant) moved for nonsuit, which was overruled. At the conclusion of all of the evidence appellant and respondent moved, respectively, for directed verdict and after argument and consideration the court rendered its judgment in favor of respondent, to which this appeal has been prosecuted. There is no contention that the issues should have been submitted to the jury.

Appellant's questions on appeal will be discusssed in the order in which they are presented in the brief. The first is, Were the issues in this case res judicata against the plaintiff by the decree in the former suit between the same parties? We do not think that the principles of res judicata are applicable. The issue in the present action is title to the disputed area, which was not represented upon the Isenhower plat. The former proceeding was simply to obtain the authority of the court of equity for the conveyance of the undivided interest of the then minor, now respondent, in the property which appellant had bargained to purchase. It could hardly be called an adversary proceeding. The issue, if it may be called such, was only the propriety of the sale of the minor's interest in the property, not the title to that beyond it to the north which was omitted from the Isenhower plat. There is no question but what appellant got all of lots 59A, 58A and 57A for which he bargained and that they contained all of the frontage on the highway which the Isenhower plat showed them to contain.

Upon res judicata appellant cites Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195, Willoughby v. North Eastern R. Co., 52 S.C. 166, 29 S.E. 629, Greenwood Drug Co. v. Bromonia Co., 81 S.C. 516, 62 S.E. 840, Cathcart v. Hopkins, 119 S.C. 190, 112 S.E. 64, and Dent v. Bolar, 125 S.C. 63, 118 S.E. 26. This case (if the prior proceeding be deemed an action between the parties for the purpose of res judicata, which we do not decide) falls within the following which was quoted in the Willoughby case from Cromwell v. County of Sac: 'Where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' [52 S.C. 166, 29 S.E. 632.]

Under this first question, in addition to the contention of res judicata by reason of the former proceeding, appellant argues the inadmissibility of the testimony of Surveyor Floyd. He objected to it and made a motion to strike it out. But, in view of the authorities hereinafter cited, we think it was admissible to show the error in the Isenhower plat. It made plain the error which, according to the testimony, had been discovered years before by Burroughs, owner abutting the disputed area on the north and by appellant, himself, whose lot 57A joined it on the south. Respondent learned of it for the first time in the fall of 1955 and instituted this action a few months afterward.

The early case of White v. Eagan, 1792, 1 Bay, 247, was an action of trespass to try title. The court held and said that, quoting, 'parol testimony might be given in evidence, to explain the situation of land, contrary to the face of the deed; if it is evident from the nature of the thing itself, that there is a mistake in the deed, as where north is mentioned for south; or south for north, et vice versa, &c. The land in question being described in the deed to bound on Sir John Colleton to the north, and...