Stokes v. Murray

• Decision Date: 28 June 1913
• Citation: 78 S.E. 741,95 S.C. 120
• Parties: STOKES et al. v. MURRAY.
• Court: South Carolina Supreme Court

78 S.E. 741

95 S.C. 120

STOKES et al. v. MURRAY.

Supreme Court of South Carolina

June 28, 1913

Appeal from Common Pleas Circuit Court of Lee County; Henry Mullins Special Judge.

Action by J. L. Stokes and others against William M. Murray. From an order granting a nonsuit, plaintiffs appeal. Reversed and remanded.

See also, 94 S.C. 18, 77 S.E. 712.

The following are the exceptions of appellants:

"His honor erred in granting the motion for nonsuit, it is respectfully submitted, in the following particulars. (1) Having established, prima facie, a legal title to the premises in question, the plaintiffs were presumed to have been possessed of the same within the time required by law. (2) Section 109 of the Code of Civil Procedure of 1902 has no application to this case: (a) Because not enacted for 40 years; (b) because enacted after the cause of action accrued, if the view taken by attorneys for defendant is correct. (3) Section 98 of the Code of Civil Procedure of 1902 has no application in this suit, as the same was enacted after the cause of action arose, if the contention of defendant be correct. (4) Section 101 of the Code of Civil Procedure of 1870 is not applicable to this case because a prima facie legal title having been established the plaintiffs are presumed to have been possessed within the time then required by law, to wit, 20 years. (5) The statutes of limitation have no application to this case, as no right of action ever accrued to the plaintiffs, or their ancestor, until the death of F. L. Stokes. (6) The statutes of limitation do not apply in this case, as the ancestor of the plaintiffs was laboring under the marital disability imposed by law, and the law cannot, at the same time, prescribe a limitation to run during the continuation of the disability the law had imposed, as this would be depriving a person of property without due process of law. (7) No adverse holding was or could be shown, as the plaintiffs' ancestor had no right to the possession, and therefore no mere holding of possession could be adverse to her rights which did not include possession. (8) Section 101 of the Code of Civil Procedure of 1902 raises the presumption of possession within the time required by law, and this alone would require the trial judge to send the case to the jury. (9) The evidence introduced by the plaintiffs was insufficient, under the law, to sustain a verdict for them, and said evidence did make out a prima facie case."

L. D. Jennings, of Sumter, and McLeod & Dennis, of Bishopville, for appellants. Thos. H. Tatum, of Bishopville, and J. B. McLauchlin, of Columbia, for respondent.

WATTS J.

This was an action for the recovery of real property heard before Special Judge Hon. Henry Mullins, and a jury, at the spring term of the court of common pleas for Lee county in 1910. At the close of the evidence in the case, upon motion of defendant's attorneys, his honor granted a nonsuit. The plaintiffs gave notice of intention to appeal from this order, but before they perfected their appeal, Judge Mullins signed an order, setting aside his order of nonsuit, and appeal was taken from this last order, and that order was reversed in an opinion recently filed by this court (94 S.C. 18, 77 S.E. 712), with leave to the plaintiffs (appellants here) to perfect their appeal from the order granting...