Turpin v. Sudduth

• Decision Date: 03 October 1898
• Citation: Turpin v. Sudduth, 53 S.C. 295, 31 S.E. 245 (S.C. 1898)
• Parties: TURPIN v. SUDDUTH et al.
• Court: South Carolina Supreme Court

31 S.E. 245

53 S.C. 295

TURPIN v. SUDDUTH et al.

Supreme Court of South Carolina

October 3, 1898

Appeal from common pleas circuit court of Greenville county; R. C Watts, Judge.

Action by Rosalie A. Turpin against Deborah Jane Sudduth and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Following is the charge of the circuit judge, viz.:

"This is an action brought by the plaintiff, Rosalie A. Turpin against the defendant Deborah J. Sudduth and others to recover possession of real estate. The plaintiff here contends that, in 1885, one S.C. Dickson bought at a judicial sale here the land in dispute, and executed a mortgage to secure part payment of the purchase money, and that at another judicial sale she purchased this property and therefore asks for possession of the same. The defendants come into court, and deny that the plaintiff is entitled to recover. They allege that in 1885 S.C. Dickson was the owner of this property, and sold this land to Peter C. Sudduth, and that he had no notice, actual or constructive, that there was a mortgage over it, and that since that time Sudduth, husband and father, was, up to 1888, in open and notorious possession of the property, and that since his death they have held in adverse possession against the world. Now, you are sole judges of the facts in the case, and it is my duty to give you the law in the case, and it is your duty to apply the facts to the law, as I give it to you. The law applicable to this case is in a narrow compass, as I view it, and I charge you that in 1885, if S.C. Dickson bought that property, and got a deed for the property from the officer of the court selling it and that he executed and delivered this mortgage, which you have heard read, under whom Miss Turpin claims, and that if it was not recorded in forty days after execution, and if the testimony satisfies you that Sudduth bought the property in the meantime, and within the forty days, and that Dickson gave no notice of it and made the deed to it to Sudduth, the plaintiff could not recover. If the testimony satisfies you that Dickson bid off this property in the fall of 1885, and did not comply with the terms of sale until January of the next year, and that at the same time, January 14, 1886, the mortgage was executed, and recorded at the same time, then I charge you, as a matter of law, the plaintiff would be entitled to recover.

"Now, gentlemen, it all depends upon the view you take of the case as to when Dickson got possession of the land, by deed, and when he sold it. If he got it in November, and sold it between that and January, and Sudduth had no actual or constructive notice of the existence of this mortgage, I charge you, as a matter of law, if the mortgage was given in November, and was not recorded in forty days, then the plaintiff would not be entitled to recover; but, if you believe that the mortgage was recorded in the forty days after it was given, that would be constructive notice to Sudduth, and the plaintiff would be entitled to recover. Or, if you believe that this property was knocked down to Dickson that day, November, 1885, and entered upon Douthit's books, but did not comply until January, and he got his deed at that time, and the mortgage was properly recorded, then Mr. Sudduth bought it subject to the mortgage, and Mr. Sudduth would not be entitled to the land. If Sudduth had no notice of it, actual or constructive, the plaintiff would not be entitled to recover, but if he had actual or constructive notice of it then the plaintiff could recover. But if this deed and mortgage was executed at the same time, and the mortgage was recorded in forty days, then he bought it subject to that, and the plaintiff would be entitled to recover. If you find for the plaintiff, say, 'We find for the plaintiff the land in dispute.' If you find for the defendants, say, 'We find for the defendants.'

"The plaintiff's counsel request me to charge you:

"'(1) A deed or mortgage bears date, so far as the recording acts are concerned, from the day on which it is delivered.' Charged.

"'(2) If the jury believe from the evidence that the deed from Douthit to Dickson and the mortgage of S.C. Dickson to Douthit, dated November 2, 1885, were not, in fact, executed and delivered until January 14, 1886, the latter is the date from which the forty days within which the mortgage should be recorded must be reckoned.' Charged.

"'(3) If the mortgage of S.C. Dickson was, in fact, executed on November 2, 1885, and was not recorded until January 14, 1886, a purchase from S.C. Dickson between November 2, 1885, and January 14, 1886, who claims under a deed executed within that period, but who has not recorded it until January 14, 1886, cannot prevail against the prior unrecorded mortgage, if the latter was recorded on January 14, 1886.' Refused.

"'(4) If the jury believe from the evidence that S.C. Dickson purchased the land in dispute at master's sale on November 2, 1885, but did not comply with his bid until January 14, 1886, at which time he received a deed and executed a mortgage to the master, he did not acquire the legal title until January 14, 1886; and that a deed to the said premises executed by him between the sale and the execution and delivery of title cannot prevail against the purchaser under foreclosure of the purchase-money mortgage executed to the said master, provided the mortgage was recorded within forty days from January 14, 1886.' Charged.

"'(5) That, under the will of Peter C. Sudduth, his widow, Deborah J. Sudduth, took a fee-simple estate in this land, and, if the jury believe from the evidence that Deborah J. Sudduth was made a party to this suit within ten years from the accrual of Peter C. Sudduth's interest in the land, then the statute of limitations is no bar to the plaintiff's claim.' Charged.

"Now, gentlemen, as I said before, if you believe that Mr. Dickson got this deed in November, 1885, and sold to Sudduth between that time and January 14th, if you believe that he executed a mortgage the same day, and that was not recorded, then the statute of limitations would commence to run; and if you believe that he and his heirs were in possession of that land adversely for ten years,--in uninterrupted possession of it for ten years,--then that would give defendants good title. But it all depends upon what took place in November, 1885. If Sudduth bought it, and thought he was buying unincumbered property, and he had no actual or constructive notice of the mortgage, he would be entitled to it; but if Dickson bid it off that day, and got his deed that day, and gave his mortgage that day, then the plaintiff cannot recover."

The plaintiff (appellant), having given her notice of intention to appeal to the supreme court from the rulings of the circuit judge, his charge to the jury, and the verdict and judgment rendered in the above-stated case, now comes, and gives notice of said appeal, and will ask the supreme court to reverse the same on the following grounds, to wit:

"(1) Because the circuit judge erred in refusing to allow the appellant to prove the custom or habit of Judge Douthit, then master of Greenville county; of dating deeds and mortgages as of the date of the sale, even though the terms of the sale were not complied with for a month or months after the day of sale.

"(2) Because the circuit judge erred in restricting the proof in this case to what was done by Judge Douthit in the execution of the deed and mortgage of S.C. Dickson to him, the said S. J. Douthit, master.

"(3) Because the office of S. J. Douthit being a public office, and it being relevant to prove the existence of a course of business or habit of the said officer doing business in the said office, it is respectfully submitted that the circuit judge erred in refusing to allow the plaintiff below to prove what the habit or custom of Judge Douthit was in his said office, as to the execution of deeds and mortgages.

"(4) Because the circuit judge erred in refusing to charge the jury as follows: '3. If the mortgage of S.C. Dickson was in fact executed on November 2, 1885, and was not recorded until January 14, 1886, a purchaser from S.C. Dickson between November 2, 1885, and January 14, 1886, who claims under a deed executed within that period, but who has not recorded it until after January 14, 1886, cannot prevail against the prior unrecorded mortgage, if the latter was recorded on January 14, 1886.'

"(5) Because the circuit judge in charging the jury as follows: 'The law applicable to this case is in a narrow compass, as I view it; and I charge you that, in 1885, if S.C. Dickson bought that property and got a deed for the property from the officers of the court selling it, and that he executed and delivered this mortgage which you have heard read, under whom Miss Turpin claims, and that if it was not recorded in forty days after execution, and if the testimony satisfies you that Sudduth bought the property in the meantime and within the forty days, and that Dickson gave no notice of it and made the deed to it to Sudduth, the plaintiff could not recover.'

"(6) Because the circuit judge erred in charging the jury as follows: 'Now, gentlemen, it all depends upon the view you take of the case as to when Dickson got possession of the land by deed and when he sold it. If he got it in November, and sold it between that and January, and Sudduth had no actual or constructive notice of the existence of this mortgage, I charge you, as a matter of law, if the mortgage was given in November, and was not recorded in forty days, then the plaintiff would not be entitled to recover.'

"(7) The undisputed testimony in this case being that the deeds, said to have been executed by

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