GARY
A. J.
This
action was commenced on the 1st day of March, 1899, for the
recovery of certain real property hereinafter mentioned. As
some of the questions raised by the exceptions
require reference to the pleadings to determine what issues
were involved, it is deemed necessary to set out a copy of
the complaint and answer.
The
complaint was as follows: "The plaintiff above named, by
his complaint, shows: (1) That he is the owner in fee simple
and entitled to the possession of all that certain piece
parcel, or tract of land situate, lying, and being in the
county of Chesterfield, state of South Carolina, containing
five hundred and fifty-seven acres, more or less, bounded on
the north by lands belonging to the estate of Neill Crawford,
on the east by said estate and by Big Black creek, on the
south by lands of said estate and of J. M. Clark, and on the
west by lands of E. C. Clark; reference being had to grant
from the state of South Carolina unto J. J. Schroter, bearing
date December 23, 1827, and plat thereto attached, bearing
date July 20, 1827,--description thereof will more fully
appear. (2) That Neill Crawford, late of the county and state
aforesaid, was for a number of years in the unlawful
possession of a part of said tract of land, and the said
Crawford recently departed this life intestate, as plaintiff
is informed and believes, leaving as his heirs at law and
distributees his nephews, the defendants E. C. Clark, J. M.
Clark, G. N. Clark, and W. A. Clark; his nieces, the
defendants Eleanor Knight and Mary Knight; and Angus
Douglass, and D. L. Douglass, E. C. Douglass, and Ella
Douglass, the husband and children, respectively, of his
niece Nancy Douglass, who had departed this life intestate,
leaving no other heirs at law,--the said Ella Douglass being
an infant over the age of fourteen years. (3) That at the
death of the said Neill Crawford the defendant E. C. Clark,
as heir at law of said Crawford, for himself and the other
defendants above named, set up a claim to said land, and took
possession of a part of same under said claim, which said
claim is pretensive, and has no force at law, but said claim
is a cloud on plaintiff's title. (4) That the plaintiff
is entitled to the possession of all of said land, but the
defendants, as above stated, unlawfully withhold the
possession of a part thereof from him."
The answer was as follows: "For a first
defense: (1) That they deny on information and belief the
allegation of paragraphs one
and four of said complaint, and so much of paragraph two of
the same as alleges that Neill Crawford was in lawful
possession of the land described in the complaint, and that
Angus Douglass has any interest in the same, or claims any
interest therein, as heir at law of Neill Crawford or
otherwise; and they deny so much of paragraph three as
alleges that the claim of such of the defendants as do claim
an interest in the same is pretensive, and of no force in
law. For a second defense: (1) That neither, the plaintiff
nor any of his grantors or ancestors or predecessors has been
in possession of the land in dispute here, or any part
thereof, within ten years last past before the commencement
of this action; and these defendants, their ancestors,
predecessors, and grantors (except the defendant Angus
Douglass), have been in open, notorious, and avowed adverse
possession of the same (part being held by said defendants
together as heirs at law of Neill Crawford, and part being
held by J. M. Clark individually) for more than ten years
past before the commencement of this action."
The
record contains the following statements: "The complaint
was dismissed as to Angus Douglass, D. L. Douglass, E. C.
Douglass, and Ella Douglass, they neither having nor claiming
any interest in the lands. The case came on for trial at the
November term of the court of common pleas, 1899, for
Chesterfield county, before his honor, Judge W. C. Benet, and
a jury, and the plaintiff offered testimony tending to show
that the land described in the complaint--five hundred and
fifty-seven acres--was granted to J. J. Schroter December 23,
1827; the grant and plat thereto attached being introduced in
evidence. Plaintiff also introduced testimony tending to show
that at the death of the said Schroter, which occurred in the
year 1846, he left a will, by which he devised the said land
to his daughter Mrs. Ann Sutton for her life-time, and at her
death to his granddaughter Rosalie Sutton, the daughter of
the said Mrs. Ann Sutton; and that this was the only land devised to her; that the said Mrs. Ann Sutton died
in the year 1893, and that thereafter the said Rosalie
Sutton, in the year 1899, by deed, conveyed the said land to
the plaintiff herein; which said deed was introduced in
evidence. The said Rosalie Sutton is still living. The
defendants offered in evidence a grant to William White for
150 acres, dated February 4, 1793; another grant to William
White, for 660 acres, dated May 6, 1799; and a third grant to
William White for 584 acres, dated January 4, 1803. Testimony
was then introduced tending to show that the above lands were
sold by William White to William Reeder, and that thereafter
the said lands were sold at a sheriff's sale in the year
1827 as the lands of the said Reeder, and bid off by J. J.
Schroter, who held possession until 1835, and then assigned
his bid, and directed this deed to be made to Edward Burch,
to whom a deed was made by A. M. Lowry, sheriff, dated 11th
September, 1835, and that said Burch deeded same to Neill
Crawford January 30, 1837. They also introduced a plat made
by D. Feagen, surveyor, dated March 27, 1827. The
surveyor's certificate thereon stated that it was made
for J. J. Schroter, and was a plat of the Reeder lands under
the William White grants hereinbefore set out. The field
notes of the surveyor corresponding with the plat were also
introduced in evidence. The said plat contained 2,400 acres,
whereas on its face it purported to contain 1,460 acres. It
was located by order of the court in this action, and it was
shown that it covered the three William White grants and the
land in dispute. The defendants also introduced evidence
tending to show that in 1832 the said J. J. Schroter was sold
out by the sheriff, and placed in jail for debt, and
introduced a deed from John Evans, as sheriff, to Hugh
Crawford, under said sale, for the lands described as the
Reeder or White lands; also a deed from Hugh Crawford to
Neill Crawford for said lands. Testimony was also introduced
tending to show that Neill Crawford was in possession of said
lands from the date of his deed, in 1837, up to the time of
his death, in 1897, and that the defendants
have been in possession thereof since said time. The
plaintiff offered testimony tending to show that the land in
dispute, to wit, the tract covered by the grant to Schroter
dated December, 1827, while included in the plat made by
Feagen, was not covered by the White grants, hereinbefore set
out, but that the land in dispute was adjacent thereto, and
bounded on the east thereby. The plaintiff also offered
testimony tending to show that after the death of the said
Schroter, which occurred in 1846, all the other devisees
under his will received and took possession of and still hold
considerable tracts of land thereunder, but said tracts were
no part of the grants which covered the lands in dispute. The
plaintiff also offered testimony tending to show that those
under whom the defendants claim did not hold possession of
any part of the lands in dispute until about 1861, and that
the defendants had not held possession thereof for ten years
next preceding the commencement of this action. *** No
question was made on the trial at any stage, or presented to
the judge in any way, that the issues passed upon and
referred to in exceptions 4, 5, 7, and 9 were not raised in
the pleadings." The jury rendered a verdict in favor of
the defendants.
The
plaintiff appealed upon exceptions, the first of which is as
follows: "(1) Because the circuit judge erred in
charging the jury as follows: ' Because, if such be the
case, that neither the plaintiff nor any of those through
whom he claims (his grantors, predecessors, or ancestors) has
been in possession at all in the last ten years, then the
right of action would be barred if the defendants have
been in possession of any of them,'--whereas he should
have added the proviso that, ' unless such plaintiff, or
the person through whom he claims, was under some disability,
such as infancy, lunacy, or, as in this case, having or
claiming an estate in remainder after the death of another
person during the lifetime of the life tenant.' "
His honor, the presiding judge, used the language mentioned
in this exception when stating to the jury what issues were
raised by the pleadings. The words which it is
submitted should have been added as a proviso are nowhere to
be found in the pleadings, and, furthermore, if the presiding
judge failed to state any of the issues, it was incumbent on
the party to the action desiring to make this a ground of
appeal to have called his attention to the omission. This
exception is overruled.
The
second exception is as follows: "(2) Because his honor
the circuit judge erred in charging the jury as follows:
' Now, you have heard that old saying that
"possession is nine points in the law," and it is
well that it is so,...
