Terwilliger v. Marion, 16662

• Decision Date: 22 August 1952
• Docket Number: No. 16662,16662
• Citation: 222 S.C. 185,72 S.E.2d 165
• Court: South Carolina Supreme Court
• Parties: TERWILLIGER v. MARION.

Page 165

72 S.E.2d 165

222 S.C. 185

TERWILLIGER v. MARION.

No. 16662.

Supreme Court of South Carolina.

Aug. 22, 1952.

Williams & Busbee, Aiken, for appellant.

Henderson, Salley & Cushman, Aiken, for respondent.

FISHBURNE, Justice.

This action was commenced in December, 1947, by the plaintiff (Appellant here), Hazel O. Terwilliger, against the respondent, Irene Marion, and numerous other defendants. The object of the suit was to exclude all defendants from any interest in the real estate described in the complaint as containing 400 acres of land located in Aiken County. This property originally belonged to the Oliveros-Holley Land Company, a corporation organized by L. M. C. Oliveros, father of appellant, and W. W. Holley, for the purpose of subdividing it into lots and selling the lots as a residential development.

A large number of defendants who had purchased lots defaulted, and thereafter those who answered were by consent substituted as individual defendants, the respondent being one of them.

This respondent, Irene Marion, alleged that she was the owner in fee of Lot 62 in Block 6 on a plat of 'Aiken Heights,' (the name of the development) made in 1907 by P. S. Norris, Civil Engineer, for the Oliveros-Holley Land Company. She alleged and proved that she derived title thereto under the terms and provisions of the will of her father, Jerry Williams, deceased, which will, it is admitted, was duly admitted to probate in the office of the Probate Court for Aiken County; and that her father, Jerry Williams, became vested with title to the lot in question by deed to him from the Oliberos-Holley Land Company of date November 19, 1908, and duly recorded in the office of the Clerk of Court for Aiken County. The respondent denied in her answer that appellant had any right, title or interest by virtue of adverse possession or otherwise, in the lot described; and alleged that all taxes on the property had been paid by her and her predecessors in title.

Upon the conclusion of the testimony, the trial court overruled a motion made by appellant for directed verdict in her favor, the basis of the motion being that the evidence is uncontradicted that she and her predecessors in title had been in adverse possession for more than ten and twenty years before the commencement of the action. Upon trial, the jury found for the defendant, and the appellant is now appealing from this adverse verdict.

Error is first assigned because the trial judge charged the jury:

'* * * I charge you in that connection that the testimony of the witnesses, although uncontradicted, is not binding upon you. You have a right to determine it in the light of all the circumstances and give it such weight as you think it is entitled to.'

We see no error in this instruction.

The court in Green v. Greenville County, 176 S.C. 433, 180 S.E. 471, 473, quoted with approval the general rule expressed in 26 R.C.L., at Page 1069:

'* * * The fact that evidence is not contradicted by direct evidence does not render it undisputed, as there still remains the question of its inherent probability and the credibility of the witness or his interest in the result. To justify a Court in instructing a jury that a witness has told the truth, and in directing a verdict based on the truthfulness of his evidence, there must be nothing in the circumstances or surroundings tending to impeach the witness or to throw discredit on his statements. If there is anything tending to create distrust in his truthfulness, the question must be left to the jury.'

Nor did the court commit error in overruling appellant's motion for directed verdict non obstante veredicto, or a new trial.

Appellant's case, as shown by the record, depends upon the establishment of adverse possession with reference to this one lot which is located in the large tract of 400 acres described in the complaint. It is needless to make any lengthy review of the evidence here. On neither side, with reference to the question of possession, was the evidence very precise or definite. However, in our opinion, the testimony made an issue to be passed upon by the jury.

Error is assigned on the ground that the court did not correctly declare the law as to adverse possession. The record tends to show that after this large tract of land had been subdivided and several hundred lots conveyed away--1907-1913--Mr. and Mrs Oliveros planted and cultivated 40 or 50 acres,--the cleared portion; and exercised certain acts of possession over the whole tract until the death of both,...