Appeal
from Common Pleas Circuit Court of Sumter County; Thos. H
Spain, Judge.
"To
be officially reported."
Action
by Maud O. Taylor and others against Isaac Strauss and
another. Judgment for the defendants, and the plaintiffs
appeal. Reversed and remanded.
The
exceptions of the plaintiffs are as follows:
"The
plaintiffs herein except to the rulings of the presiding
judge and his order of nonsuit in the above-stated case as
follows:
"First.
Because his honor erred in holding that section of the
revised statutes of 1893 passed in A. D. 18-- was of such
effect as that a sale of the land in this state for taxes
and a deed to the purchaser made under such sale carried
with it not only all right, title, and interest of a life
tenant but also all the right, title, and interest of any
remaindermen having a right to the title and possession
of the property in question upon the termination of the
life estate; the property in this case having been sold
for taxes assessed against and in the name of the life
tenant.
"Second.
Because his honor erred in holding a ruling that the
statute of laws of this state were so altered and amended
and subsequent to the decision of the Supreme Court on
the point involved as announced in the case of Shell
against Duncan, reported in volume 31, p. 547, of the
South Carolina Reports, that under the sale of the land
for taxes in this case assessed against the
life tenant in 1895 such tax sale carried with it to the
purchaser not only all right, title, and interest in the
property of the life tenant but also the rights of the
remaindermen in the land in question, some of whom were
not born and could not be expected to pay taxes at that
time.
"Third.
Because his honor erred in that he should have held that
a common source of title having been shown in this case
in that both that claimed by the plaintiffs and that
claimed by the defendants were derived from William
Keels, who divided the tract of land in question to his
son J. L. Keels for life and after the death of J. L.
Keels to the children of J. L. Keels, the fact being
disclosed that the defendant's title came through a
tax sale of said land assessed against the defaulting
taxpayer J. L. Keels, who owned only a life interest in
said land, and, having died since said sale, the
remaindermen under said will having now the better title
to the land according to the proof, and that the issue
should have been submitted to the jury to determine who
has the better title from such common source.
"Fourth.
Because his honor should have held that section 360 of
the Revised Statutes of 1893, limiting the right to
recover against a tax title, must necessarily be
construed with the previous sections of said statute
which require taxes to be assessed in the name of the
true owner, and therefore persons referred to in section
360 could only be such persons against whom the taxes
were assessed or those claiming by, through, or under
them.
"Fifth.
Because his honor erred in granting the motion for nonsuit in
this case in that such application of the statutes referred
to would open the door to fraud and permit any life tenant to
defeat the title of remaindermen by failure on his part to do
his duty in paying taxes on the land assessed against him and
his estate; that such was not the intention of the
Legislature and such is not the meaning of the
statute."
A. B.
Stuckey, of Sumter, for appellants. Lee & Moise, Harmon D.
Moise, and John H. Clifton, all of Sumter, for respondents.
GARY
C.J.
This is
an action to recover possession of the tract of land
described in the complaint, and the appeal is from an order
of nonsuit.
The
plaintiffs, some of whom are infants under the age of 21
years, claim title to the land in dispute under and by virtue
of the last will and testament of William Keels, deceased,
who devised it to J. L. Keels, their father, for and during
the term of his natural life, and after his death to be
equally divided between his children. The defendants denied
the plaintiffs' title and set up the following defenses:
(1) That neither the plaintiffs, their ancestor, predecessor,
or grantor, were seised and possessed of the premises within
ten years next before the commencement of the action; (2)
that the
cause of action stated in the complaint accrued more than ten
years next before the commencement of the action and is
therefore barred by the statute of limitations; and (3) that
the cause of action accrued more than two years before the
commencement of the action, and the plaintiffs are barred
under and by virtue of the provisions of section 462, Code of
Laws 1912.
In 1895
the land was sold to pay the taxes which had been assessed
against J. L. Keels and was purchased by the defendant Isaac
Strauss, to whom a deed of conveyance was made, under which
he entered into possession, and which was duly recorded. J.
L. Keels died in 1905, and this action was commenced on the
2d day of March, 1911.
At the close of the plaintiffs' testimony, the
defendants' attorneys made a motion for a nonsuit on
several grounds, but all were overruled except those based on
section 115, Code of Laws 1912, which is as follows: "In
all cases of sale, the sheriff's deed of conveyance
whether executed to a private person, a corporation, or to
the commissioners of the sinking fund, shall be held and
taken as prima facie evidence of good title in the holder,
and that all proceedings have been regular and all
requirements of the law have been complied with. No action
for the recovery of land sold by the sheriff under the
provisions of this act, or for the recovery of the possession
thereof, shall be maintained unless brought within one year
from the date of sale, and unless it be sustained by
conclusive evidence from the tax duplicates, or from a tax
receipt signed by county treasurer, or by a certificate
signed by the Secretary of State, or by his agent, showing
that all of the taxes and levies for which the land was sold,
with the costs that may have accrued thereon, were paid prior
to the sale, at the...
