Stokes v. Murray

• Decision Date: 28 September 1915
• Docket Number: 9199.
• Citation: 87 S.E. 71,102 S.C. 395
• Parties: STOKES ET AL. v. MURRAY ET AL.
• Court: South Carolina Supreme Court

87 S.E. 71

102 S.C. 395

STOKES ET AL. v. MURRAY ET AL.

No. 9199.

Supreme Court of South Carolina

September 28, 1915

Appeal from Common Pleas Circuit Court of Lee County; H. F. Rice Judge.

Action by J. L. Stokes and others against Elizabeth Murray and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

A. B Stuckey, of Sumter, and T. H. Tatum, of Bishopville, for appellants.

L. D Jennings, of Sumter, for respondents.

GAGE J.

This cause has been hither thrice before this. 94 S.C. 18, 77 S.E. 712; 95 S.C. 121, 78 S.E. 741; 99 S.C. 221 83 S.E. 33. The action is to recover the possession of 62 1/4 acres of land and damages to it. On the issue of title the court directed a verdict for the plaintiff, and referred the issue of damages to a jury.

There are four exceptions by the defendants; but there are really only two questions to be decided, and at most only three. The appellants contend this:

(1) That the verdict ought not to have been directed for the plaintiff; but, on the other hand, the court ought to have directed a verdict for the defendants (first and fourth exceptions).

(2) That the testimony of Jesse A. Corbett was competent, and ought not to have been excluded (third exception).

(3) That, the defendants having pleaded as a bar to the action the statute of 1712, the court ought to have charged the jury the force and effect of that statute (second exception).

These in their order:

1. The plaintiffs proved a legal title in Mrs. Francis L. Stokes in 1858, and they may rest there and go no further back. They did go further back than that date, but it was not necessary to do so. There has been, and there is now, no denial but that Mrs. Stokes did have the legal title then; for all the argument about the statute of 1712 (2 St. at Large, p. 583) is based on that assumption.

From 1858 to her death in September, 1906, Mrs. Stokes was married to John L. Stokes, and the plaintiffs are the children of that union. John L. Stokes died about 1910, and the plaintiffs are the sole heirs at law of John and Francis. The defendants contend, however, that it was not sufficient for the plaintiffs to prove a legal title in Francis; that the defendants and their parents had possession of the foot; that, "if we are only to presume that possession followed the legal title, still this was a question of fact for the jury, and not for the judge." A sufficient answer to that argument is that the plain words of the statute law are to the contrary. Code of Civil Procedure, § 126. When the plaintiffs proved, as they did, a good legal title in themselves through Francis, the possession was drawn to the title. Indeed, the defendants tendered a witness, Jesse A. Corbett, to prove that Francis sold the land to J. J. Stokes; and the paper title of the defendants, proved by the plaintiffs, shows that the defendants claim through J. J. Stokes. Plainly therefore Francis was both owner of the legal title, and she is also, by the defendants' argument, the common source of title of both the plaintiffs and the defendants. Therefore the burden was then cast upon the defendants to defeat the plaintiffs' title.

Therefore the defendants plead (1) a good paper title; also (2) ten and forty years' adverse possession; also (3) the bar of the act of 1712.

But no paper title was proven; and, so far as adverse possession is concerned, there could be no adverse holding against Francis so as to ripen into title, because she was under a disability to sue up to her death in 1906, and the action was brought in 1909. It was distinctly held upon the last appeal (99 S.C. 221, 83 S.E. 33) that the wife Francis had no right to dominion of the estate during coverture, which only ended in 1906; but that the right of possession and dominion was in her husband, John L. Stokes, who died in 1910. This action was brought in 1909 . It was also held, in the last appeal, that the cause, with reference to the statute of limitations, was controlled by the act of 1712; and that by that statute the action was brought in due time.

Reverting to the alleged bar under the act of 1712, the appellant suggests that section 16 thereof provided a way for the wife to have asserted her right; and that therefore Mrs. Stokes was under no real disability. They cite Starke v. Starke, 3 Rich. 449, to sustain that view. But that cause is no authority for such a notion. In the first place, the court thought the question there mooted was "not necessary to decide in this case." The facts of the Starke Case differ from the facts in the case at bar. Here the husband did nothing to defeat or to hinder the wife's right; nor did she. The husband might have aliened his own right, but did not; neither did he undertake to sell or to incumber, nor to do aught with his wife's right. She had no "right or claim" which enabled her to move under section 16 of the act of 1712.

Our cases distinctly hold that before 1868 when a cause of action accrued to a married woman during coverture (except under circumstances mentioned in section 16 of the act) she was under a disability to sue, and time does not run against her until after the disability has been removed, to wit, until discoverture. Fewell v. Collins, 1 Tread. Const. 202; Brown v. Spann, 2 Mill, Const. 12; Munnerlyn v Munnerlyn, 2 Brev. 2; Jones v. Reeves, 6 Rich. 13...