Smythe v. Tolbert

• Decision Date: 10 January 1885
• Parties: SMYTHE v. TOLBERT.
• Court: South Carolina Supreme Court

22 S.C. 133

SMYTHE v. TOLBERT.

Supreme Court of South Carolina.

January 10, 1885

1. In action for recovery of land, plaintiff need not trace his title back beyond a common source; when it is not admitted in the pleadings that both parties do claim under such common source, it is then a question of fact to be determined by the evidence. Martin v. Ranlett , 5 Rich. , 541, recognized and followed.

2. Declarations by defendant that he claimed title under S. (a common source) were admissible in evidence against him.

3. The admission of incompetent testimony that could not have affected the result, is not sufficient ground for reversing the judgment.

Before ALDRICH, J., Edgefield, October, 1883.

This was an action by J. Ellison Smythe against John R. Tolbert. The case was brought to this court upon the following exceptions: " 1. Because his honor erred in admitting any testimony as to any claim of title by the defendant, John R. Tolbert, to the land in dispute; there being no such claim set up in the pleadings when they were submitted to the jury. 2. Because his honor erred in admitting the testimony of O Sheppard, Esq., as to a claim of title by the defendant, John R. Tolbert, to the land in dispute, without requiring the deed, under which said claim is alleged to have been made, to be first produced or its loss accounted for; said deed being the highest evidence of said claim of title. 3. Because there was no competent proof of title claimed by the defendant John R. Tolbert, to the land in dispute, such as to show that such title came from a common source with that of the plaintiff. 4. Because defendant having set up no claim of title to the land, and having denied the title of the plaintiff, his honor erred in refusing to charge the jury that the plaintiff could not recover in this case without proving a perfect title-tracing it to a grant from the state or a presumed grant. 5. Because his honor erred in not instructing the jury that plaintiff had failed to prove a perfect title in himself to the land in dispute. 6. Because the plaintiff failed to prove such title in himself as would trace his title to a common source with a title of the defendant. 7. Because, if the defendant does not set up a claim of title to the land in dispute, the plaintiff cannot set it up for him, and the defendant may rely upon his defence of denial of title in plaintiff, and his honor erred in refusing to instruct the jury accordingly."

Mr. A. J. Norris , for appellant, cited 1 Tread. Con. R. , 90, 125; 1 McMull. , 450; 5 Rich. , 545; 9 S.C. 440; 15 Id. , 263; 17 Id. , 89; 19 Id. , 411; 7 Wheat. , 547.

Messrs. Sheppard Bros. , contra, cited 5 Rich. , 541; 1 Hill , 382; 1 Strobh. , 1; 2 Rich. , 581; 12 Id. , 474; 3 Strobh. , 367.

OPINION

MR. CHIEF JUSTICE SIMPSON.

The plaintiff, respondent, brought the action below to recover possession of a certain tract of land situate in Edgefield County, and for damages for the unlawful withholding thereof. The defendant, appellant, denied respondent's title, and the case at the trial turned upon the question of title.

The respondent relied upon the following papers as evidence of title, to wit, a deed from Johnson & Leopold to one J. L. Shumate, sheriff's deed to Leopold, a mortgage from Shumate to George H. Walter & Co., the foreclosure of this mortgage and a deed from the master of foreclosure sale to the respondent. Some days before the trial an agreement was entered into between the attorneys of respondent and appellant as follows: " We agree to admit the execution of the deeds to be offered in this case by the plaintiff, to wit, mortgage by J. L. Shumate to George H. Walter & Co., and deeds of J. D. Johnson and F. M. Leopold & Leopold to J. L. Shumate, and sheriff's to the Leopolds. Also deed from the master to Smythe-four papers. Also execution of deed from J. L. Shumate to J. R. Tolbert, defendant's deed." This paper was submitted to the court by the plaintiff as evidence.

The plaintiff here introduced as a witness O. Sheppard, Esq., one of his attorneys, who testified that the defendant Tolbert told him that he had bought the land in dispute from J. L. Shumate, under whom plaintiff claims, and that he had a deed from Shumate; that during the litigation to foreclose the mortgage of Shumate to Walter & Co., and up to the present time this deed had never been recorded, and, further, that defendant Tolbert told him that when he bought the land from Shumate, Shumate assured him that the said mortgage had been satisfied, and that thereby Shumate had fooled him. He further testified that he had seen the deed from Shumate to Tolbert, and that it was junior to the mortgage to Walter & Co.; and, further, that at the foreclosure sale the defendant Tolbert was present and competed in the bidding, offering to take the land at the last bid. This testimony was objected to by the defendant upon several grounds.

The defendant introduced no testimony, and no objection was taken to the charge, except " that his honor refused the following request: 'We ask the court to charge the jury that plaintiff cannot recover in this case without proving a perfect title, tracing it to a grant from the state, or a presumed grant.' " Upon which the judge endorsed as follows: " The general rule contended for is correct, but it does not apply to this case, and the request is refused." The jury found for the plaintiff the land in dispute and two hundred dollars damages.

The appeal involves, first, the legal question, whether in an action for the recovery of real estate upon the ground of title, where the pleadings do not show that both parties claim from a common source, the plaintiff may be released from the necessity of going back to a grant from the state by proving at the trial by testimony that the defendant, notwithstanding he has not set up in his answer title derived from a common source, yet that such is his claim in fact.

There is no doubt that as a general rule the plaintiff, in an action...