Terwilliger v. White

• Decision Date: 22 August 1952
• Docket Number: No. 16661,16661
• Citation: 72 S.E.2d 169,222 S.C. 176
• Parties: TERWILLIGER v. WHITE.
• Court: South Carolina Supreme Court

Page 169

72 S.E.2d 169

222 S.C. 176

TERWILLIGER v. WHITE.

No. 16661.

Supreme Court of South Carolina.

Aug. 22, 1952.

Williams & Busbee, Aiken, for appellant.

Henderson, Salley & Cushman, Aiken, for respondent.

FISHBURNE, Justice.

This was an action to try title to a small lot of land which the plaintiff claims to have acquired by adverse possession. The jury found for the defendant, Malinda Green White, and awarded damages, actual and punitive. The appeal brings up for review several questions, but the main issue, as we view it, is whether the trial court erred in refusing to direct a verdict in favor of appellant.

We will not undertake to state in detail the testimony relating to the character of the adverse possession asserted by appellant. A general review of the evidence will demonstrate that in submitting the case to the jury, the court adopted the correct course.

Shortly before April 8, 1908, appellant's father, L. M. C. Oliveros, and W. W. Holley organized and obtained a charter for a corporation which was given the name of Oliveros-Holley Land Company, each owning one-half the corporate stock. Thereafter, the corporation purchased four hundred acres of land about three miles out of Aiken on the Edgefield Highway, for the purpose of subdividing it into blocks, lots and streets as a residential development, and gave it the name 'Aiken Heights.' The corporation sold over 300 lots, comprising about 100 acres of the tract, and made conveyances, therefor, which were recorded in the office of the Clerk of Court for Aiken County. The lots conveyed by the corporation were scattered over the tract and did not adjoin; the unsold lots between were retained by the corporation in the hope and with the expectation that the purchasers of the other lots would erect dwellings thereon, and that thereby the value of the unsold lots would be enhanced. Apparently the last lot sold and conveyed was in 1913.

The undertaking was a complete failure as a residential development. Not one house was built by a single purchaser on this large tract of land, which consisted of woods, highland and bottom land. Thereafter, it may be inferred, W. W. Holley transferred his stock to Oliveros, and he became the sole owner of the corporation. However, no transfer or certificate of stock or deed was introduced in evidence. The appellant, who is a daughter of Oliveros, simply testified that her father acquired the interest of Holley.

The record tends to show that sometime after the last of the 300 lots was sold in 1913, Oliveros conceived the plan of regaining and re-acquiring title by adverse possession against the scores of purchasers who had bought and paid for their lots. This was evidently thought feasible upon the theory that the lots were sold for a small consideration, the purchasers appeared disinterested, no dwellings had been erected, and that possession could be taken without serious opposition from the widely scattered grantees.

The respondent,--a colored woman and a resident of Aiken County,--was one of the first purchasers of lots in the subdivision. On April 8, 1908 she bought and paid for a lot described as Lot 28 in Block B of the subdivision known as 'Aiken Heights', according to a plat thereof made by P. S. Norris, C. E. in 1907. She promptly recorded her warranty deed obtained from the Land Company, returned the lot for taxation and continuously, without lapse, paid the taxes thereon from the date of purchase until the present time. This deed was duly executed by W. W. Holley, President, and L. M. C. Oliveros, Secretary.

Oliveros found it impossible through succeeding years to sell any portion of the 400 acre tract, due to the fact that prospective purchasers questioned the validity of his title. He died in 1936, presumably intestate, and his daughter, the appellant, who lived with him, now claims that upon his death she continued in adverse possession of all the lots which had been conveyed by the corporation; and that her possession, for ten years, and for twenty years, may be tacked to his because no new entry was made.

Appellant, finding it impossible, likewise, to interest any purchasers, brought this action against respondent and against all other grantees, for the purpose of excluding all parties defendant from any interest in the 400 acres which originally belonged to Oliveros-Holley Land Company. Apparently, all of the parties defendant defaulted except about six, including the defendant, and they answered the complaint setting up title.

The evidence offered by appellant as to adverse possession from 1913 until this action was commenced, in 1947, is weak and inconclusive. The testimony shows that some parts of the 400 acre tract were farmed by the Oliveros tenants, and it may reasonably be inferred, that the stakes which originally marked the corners of lots throughout the tract, were plowed up by them. But the mere fact that Mr. Oliveros and his daughter, the appellant, after his death, might have carried on some sort of intermittent farming operations and continued to use the lot in question in connection with the unsold lots, is no conclusive evidence that their possession was adverse, exclusive and hostile to the respondent. There is no definite evidence that appellant or her father, after the execution of the deed to respondent, ever actually planted or used any portion of respondent's lot. There is some vague testimony that perhaps some few feet of it had been plowed one time; but the appellant contends that it was plowed and planted from year to year. No testimony was offered by her as to exact location or the identity of this lot of respondent.

The record shows that respondent had her lot surveyed and staked out in 1910,--two years after she purchased it. From time to time she leased her small lot--50' X 125'--to various persons who planted potatoes thereon, and gave her as rent a portion of the potatoes in lieu of money.

In 1930 she again had the lot surveyed, this time by a Mr. McCullough, who placed iron stakes at the corners of the lot. All of these stakes were run over and torn up by tractors which, it may reasonably be inferred, were operated by a tenant of appellant. Thereafter, respondent had painted and placed in the middle of her lot a 'No Trespass' sign. This also was destroyed. In 1946 she had published in the Aiken Sentinel and Review, a notice forbidding trespass on this particular lot; and on October 2, 1946, prior to the commencement of this action, she had her attorneys send a formal letter to appellant, warning her not to trespass on the lot in question. According to her testimony, appellant promised to exchange for the lot in question, one better situated; but this was never done. We might add that neither appellant nor her father ever returned this land for taxation until 1945, prior to the institution of this suit.

The failure to pay taxes is evidence that no claim was made. Gadsden v. West Shore Inv. Co., 99 S.C. 172, 82 S.E. 1052; Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478.

It is needless to make any further survey of the testimony presented. The evidence clearly made a jury question on the issue of adverse possession.

Although appellant advances the claim that her father, Oliveros, entered and took possession of respondent's lot as an individual, it is not altogether clear from the record whether the claim was personal to him or made by the Land Company,--all the stock of which he claimed to own. It is argued that the corporation went out of existence through disuse.

The rule stated in Love v. Turner, 78 S.C. 513, 59 S.E. 529, is quoted with...