Thomas v. Dempsey

• Decision Date: 28 September 1898
• Citation: 31 S.E. 231,53 S.C. 216
• Parties: THOMAS v. DEMPSEY et al.
• Court: South Carolina Supreme Court

31 S.E. 231

53 S.C. 216

THOMAS v. DEMPSEY et al.

Supreme Court of South Carolina

September 28, 1898

Appeal from common pleas circuit court of Kershaw county; J. C Klugh, Judge.

Action by Margaret Thomas against Paul Dempsey and others. Judgment for defendants. Plaintiff appeals. Reversed.

Thos J. Kirkland, for appellant.

J. T Hay, for respondents.

McIVER C.J.

This was an action to recover possession of a parcel of land being a part of lot No. 1,033, in the city of Camden. The plaintiff, in her complaint, after alleging that she is seised of the land in dispute, and entitled to the possession thereof, alleges that the defendant Paul Dempsey is in possession by his tenant, Thomas J. Boykin, and withholds the possession thereof from plaintiff; and she further alleges the defendants H. Baum and M. Baum, partners as Baum Bros., claim some interest in the land. The defendants join in a general denial, and also set up the plea of the statute of limitations, based upon 10 years' possession in the defendant H. Baum, alleging that Paul Dempsey holds as tenant of H. Baum. At the close of the testimony on the part of the plaintiff, the defendants moved for a nonsuit upon the following grounds: "That plaintiff had failed to trace title to the state, or to show twenty years' possession in those through whom she claimed; that auditor's deed had not been proved, and was null and void, and could not constitute claim of title; that plaintiff's evidence showed she had surrendered possession of the premises to Baum, and recognized him as owner of the premises more than ten years before institution of the action." His honor, Judge Klugh, who heard the case, at September term, 1897, granted the motion, upon the ground "that by plaintiff's own showing the title of Baum, one of the defendants by possession, is apparently better than that of the plaintiff"; adding that the nonsuit was not granted upon any of the grounds submitted, "except the one, that H. Baum appeared to have been in possession for ten years." The plaintiff took due exception to the order of nonsuit, upon the ground that his honor erred in holding that H. Baum had been shown to be in possession for 10 years. In accordance with the proper practice, the respondents gave notice that, if this court should be unable to sustain the nonsuit upon the ground stated by the circuit judge, they would ask this court to sustain the nonsuit upon the following grounds: "(1) That the plaintiff failed to trace back a title to a grant from the state; (2) that the plaintiff failed to show a continuous possession of twenty years in herself, or those under whom she claimed, from which a grant might be presumed; (3) that the plaintiff failed to show adverse possession in herself, or under any person under whom she claimed, for ten years; (4) that the alleged deed of Donald McQueen, county auditor, to Josie L. Chaplin, was inadmissible in evidence, in the absence of legal evidence that the land had been forfeited for taxes, and, being so inadmissible, the plaintiff had failed to establish a claim of written title, even so far as she claimed to go."

This appeal thus presenting the question whether there was error in rendering the judgment of nonsuit, it will be necessary to set forth, somewhat in detail, the testimony which appears in the "case," for the purpose of ascertaining--First, whether the plaintiff had, by her own testimony, shown title out of herself and in the defendant H. Baum, as held by the circuit judge; and, second, if not, whether the plaintiff had failed to introduce any testimony tending to show title in herself, in any of the modes recognized by law.

The "case" shows that the present action was commenced on the 30th of June, 1897, and therefore, in order to determine the first question, the inquiry is whether the testimony introduced by the plaintiff was sufficient to show title out of herself, and in the defendant H. Baum, by adverse possession for the period of 10 years prior to the commencement of this action. The rule is well settled that where the question is whether a party' has acquired title to real estate by adverse possession for a period of 10 years, such possession must be clearly proved and shown. Holmes v. Rochell, 2 Bay, 487; Harrington v. Wilkins, 2 McCord, 289, where it is said the character of the possession is a question for the jury; Cantey v. Platt, Id. 260; Porter v. Kennedy, 1 McMul. 354; Hill v. Saunders, 6 Rich. Law, 62; Abel v. Hutto, 8 Rich. Law, 42. Under this rule, it is clear that there was error in holding that the plaintiff, by her testimony, had shown that the title was in H. Baum by adverse possession. The only testimony to show that Baum ever had been in possession of the lot in question, in any shape or form, is to be found in the following statement made by the plaintiff: "Some time the next year, I think, after Mr. R. D. Thomas' death, I learned that Baum & Co., who had the mortgage, had put up the lot for sale, and Mr. Baum sent us word we must pay rent. We did not know how it was, and to keep from being turned out, as we thought, we paid rent,--five dollars a month. We made it at first by sewing. Then Mrs. Malone's pension money helped, and we rented a part of the lot a while to Tom Lee. The rent was paid in at the store of Baum and Stein to the bookkeeper generally. I think it was paid sometimes to Mr. Stein at the desk. It was some time in the year after Mr. R. D. Thomas died we began to pay rent. I don't remember the time of the year. We stayed on the lot between two and three years after Mr. Thomas died, I believe, and moved out, as the rent was hard for us to keep up. The lot was vacant a while after we left it, according to my...