State v. Pinckney
| Decision Date | 21 April 1885 |
| Citation | 22 S.C. 484 |
| Parties | THE STATE OF SOUTH CAROLINA v. PINCKNEY. SAME v. DAVIS. |
| Court | South Carolina Supreme Court |
1. Entries of surveys and sales from the original books of the commissioners of United States tax sales would seem to be admissible to show what was sold, although not to impeach the regularity and validity of the sale; but not having been considered by the Circuit judge, his admission of such testimony cannot be assigned as ground for a new trial.
2. Where information is brought by the State for the recovery of real property from an individual, the State is not required to prove her title; she is the sovereign, the source of title, and upon this prima facie showing she rests until it is removed by a counter showing.
3. Statutes of limitation, affecting only the remedy, constitute no exception to the general rule that laws operate only upon matters which arise after their passage, unless they otherwise expressly declare.
4. The limitation of time within which the State will sue, adopted in 1870, cannot affect this action under the facts of the case.
5. A deed that calls for boundaries on tidal navigable streams conveys the land down to the ordinary high water line only.
6. Under a certificate of sale of island lands by United States tax commissioners, the vacant marshes surrounding such island, being property of the State and therefore not taxable under the act of Congress, did not pass; and evidence may be introduced to show the State's ownership.
7. A judgment for the recovery of land is not voidable for uncertainty because that it will be necessary to make a location of the property designated.
8. The Circuit judge's ruling that the trespass by defendant was not wilful, not disturbed; and doubted whether this court has the right to review a finding of fact in a case of this character.
Before WALLACE, J., Beaufort, November, 1883.
These were informations filed September 20, 1882, by LeRoy F Youmans, then attorney general, in the name of the State of South Carolina, one against C. C. Pinckney, jr., and the other against W. B. Davis, for the recovery of certain salt marshes alleged to be the property of the state.
At the trial, plaintiff offered in evidence certified copies of entries of surveys and sales from the original books of A. D Smith, W. E. Wording, and William Henry Brisbane, of their surveys and sales made as United States tax commissioners during the years 1864 and 1863, under and by virtue of an act entitled " an act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes." Defendant objected to this evidence on the ground that the commissioners' tax sale certificate is prima facie evidence of title to the premises described therein, and that the papers offered are not competent testimony to rebut the same. The judge did not consider this evidence in making his decision, but thought it admissible as throwing light upon the question, what did the commissioners sell?
The case is otherwise fully stated in the Circuit decree and in the opinion of this court. The Circuit decree in the Pinckney case was as follows:
A body of land composed partly of highland and partly of marsh, lies in Beaufort County, and is bounded on the north by Coosaw River and St. Helena Sound, on the east by St. Helena Sound and Morgan River, and west by Parrott Creek and Coosaw River. It is penetrated by two creeks-Safe Harbor Creek, from St Helena Sound on the north, and Bass Creek from Parrott Creek on the south. These creeks lose themselves in the marsh. The largest piece of highland lies upon the southern side of the body, and is bounded by Morgan River on the south, on the north by Safe Harbor Creek and salt marsh, and on all other sides by salt marsh. The balance of the highland is small islands-some in the eastern and some in the western part of the main body-each of which is surrounded by salt marsh.
On June 4, 1787, a grant was issued by the state to William Fripp of " a plantation or tract of land containing one hundred and twenty acres of salt marsh and eight small islands, situate in the district of Beaufort, in St. Helena parish, bounding south on St. Helena River, commonly called Morgan River, west on Parrott Creek, north on vacant marsh, eastward on marshes from William Fripp's land, commonly called Morgan's Island, showing such shape, form, and marks as are represented by a plat hereunto annexed." The plat referred to, dated April 18, 1787, is in evidence. It describes one hundred and twenty acres of salt marsh and eight small islands situate on the southwestern part of the main body.
On July 2, 1787, another grant was issued by the state to William Fripp, conveying to him " a plantation or tract of land containing thirty (being nine small islands) acres, situate in the district of Beaufort, in St. Helena parish; three of the islands bound westwardly on Safe Harbor Creek, the other six islands all sides on marsh lands, having such shape, form, and marks as are represented by a plat hereunto annexed." This plat, dated April, 1787, is in evidence. It describes nine small islands upon the eastern part of the main body. For the largest body of highland, that bounded on the south by Morgan River, no grant is produced. It is referred to in the grant of June 4, 1787, mentioned above, as " William Fripp's land, commonly called Morgan's Island," and it is conceded that William Fripp had title to this land.
Thus stood the title to this property, as far as appears from the evidence, until March 10, 1863. On that day, under " an act for the collection of direct taxes in the insurrectionary districts within the United States, and for other purposes," the United States commissioners sold and conveyed to Edward S. Philbrick " the tract of land known as Morgan Island, bounded northerly by Coosaw River, southerly by Morgan River, easterly by St. Helena Sound, westerly by Parrott Creek, containing two hundred and fifty-five acres, more or less." This description is taken from the tax sale certificate which is in evidence.
On January 27, 1865, E. S. Philbrick conveyed the same land to Geo. M. Wells. In January, 1867, Geo. M. Wells executed to E. S. Philbrick a mortgage of the same land. In pursuance of a judgment of foreclosure of the above mortgage, the same land was sold and conveyed by Alfred Williams, sheriff of Beaufort County, to Louis A. Phillips on December 22, 1869. On February 4, 1871, Louis A. Phillips conveyed to Theodore G. Eiswald " all that plantation or tract of land *** known as Morgan Island, bounded on all sides by the waters and marshes of St. Helena Sound and of Coosaw and Morgan Rivers, measuring and containing eight hundred acres, more or less." Eiswald conveyed to W. B. Davis " that piece, & c., *** known as Morgan's Island, bounded on all sides by waters of Coosaw River, St. Helena Sound, Morgan River, and Parrott Creek, measuring and containing four hundred acres, more or less."
On August 29, 1879, W. B. Davis executed a quit-claim deed to C. C. Pinckney, jr., of all his interest in " all that piece or parcel of land situate, lying, and being in the County of Beaufort and state aforesaid, being the northwestern portion of the island known as Morgan Island; bounded on the north by Coosaw River; on the east and south by a line beginning on Parrott Creek, forty-five chains to the southward of the mouth of Bass's Creek, and running north by forty-five degrees east (N. 45° E.) to Coosaw River or St. Helena Sound; and on the west by Parrott Creek, as indicated on the map of the United States Coast Survey of the entrance to Bull and Combahee Rivers, No. 435, A. D. 1871, attached to and made a part of this deed, and containing two thousand acres, more or less."
These deeds, from the tax sale certificate down to and including the deed of Davis to Pinckney, together with the state grants to Fripp, constitute all the paper title put in evidence.
This information was filed by the state to recover the marsh land included within the boundaries of Parrott Creek, Coosaw River, St. Helena Sound, and Morgan River; the state conceding that the highland has been granted and so much of the marsh as is granted in the grant of June 4, 1787, to William Fripp.
To the demand of the state, the defendant opposes three grounds of resistance: 1. That in this action the state, to be entitled to recover, must show title affirmatively, and has failed to do so; 2. That the state is barred by the statute of limitations of actions by the state. 3. That defendant has title under a tax sale certificate issued under the laws of the United States.
It is hardly necessary to say that the state can only be brought into court with her own consent, and when she voluntarily comes into any of her own courts to assert a right of property, she is of course bound by the rules established there for the administration of justice between individuals, and to recover a demand must establish her right by proof. Has she done so in this case? The state at the close of the revolutionary war succeeded to the territorial rights of the British crown, and became the owner in fee of all the lands within her limits vacant at that time. She has no paper title; she acquired her right by the strong hand, and her title has been conceded by the British crown, the former owner by right of discovery and conquest. These are historical facts, of which the court will take judicial notice, and need not be formally proven. As to the right of the state as successor to the British crown, see 3 Kent Com. , 377.
That salt marsh has for one hundred years been considered by the general assembly of this state as such land as when vacant was owned by the state, appears from the act of 178...
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