Warren v. Wilson

• Decision Date: 05 July 1911
• Citation: 71 S.E. 818,89 S.C. 420
• Parties: WARREN et al. v. WILSON.
• Court: South Carolina Supreme Court

71 S.E. 818

89 S.C. 420

WARREN et al. v. WILSON.

Supreme Court of South Carolina

July 5, 1911

Appeal from Common Pleas Circuit Court of Colleton County; R. C Watts, Judge.

"To be officially reported."

Action by G. L. Warren and others against P.J. Wilson. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

See also, 71 S.E. 513.

Warren & Warren and Perurifoy Bros., for appellants. Padgett Lemacks & Moorer and Howell & Gruber, for respondent.

GARY A. J.

This is an action to recover the possession of certain lands and damages. As there is a question as to the nature of the action, we reproduce the complaint, which is as follows "That heretofore, to wit, on the -- day of December, 1906, one Georgiaetta H. Warren departed this life leaving a last will and testament, whereby she devised to the plaintiffs above named all of her property, both real and personal. That during her lifetime, and at the time of her death, she was seised and possessed of all that tract of land situate, lying, and being in the county of Colleton, state of South Carolina. *** That, being so seised and possessed of the aforesaid tract of land during her lifetime by her tenant, the defendant aforesaid, the defendant upon her death took and held possession in his own right, and ousted the plaintiffs herein, and now holds and occupies the same unlawfully, to plaintiffs' damage $300. Wherefore plaintiffs demand judgment against defendant: (1) For the possession of the above-described tract of land. (2) For $300 damages sustained by them, by the unlawful ouster of them by said defendant." The defendant denied each and every allegation of the complaint, except "that he is in possession of the said premises, and has been in actual possession thereof for more than 25 years last as the exclusive owner thereof." The jury rendered a verdict in favor of the defendant, and the plaintiffs appealed.

The first question that will be considered is whether the complaint sets forth what would formerly have been denominated an action quare clausum fregit. Mr. Chief Justice McIver in the case of Connor v. Johnson, 59 S.C. 115, 37 S.E. 240, thus points out the difference between an action quare clausum fregit and an action of trespass to try title: "There is this fundamental difference between these two actions, viz.: That in the former, the object being to recover damages for trespass, upon the possession of the land, it is not necessary for the plaintiff to show title himself, but possession merely; while in the latter the plaintiff, in order to recover, must show title in himself, and must recover upon the strength of his own title, and not upon the weakness of his adversary's title. Accordingly, in an action of trespass quare clausum fregit, when the plaintiff proves that he is in possession of a given tract of land, and that defendant has trespassed upon it, he is entitled to recover, unless the defendant shows that he has title to the land himself--not that the title is in some third person, as would be sufficient to protect him, if the action were an action of trespass to try titles, or that he entered upon the land and did the acts complained of as trespasses, by the permission or under a license, from the true owner of the land." The present action does not merely seek to recover damages for alleged trespasses on the land, but also possession of the land. It cannot therefore be properly denominated an action quare clausum fregit.

The next assignment of error, which will be considered, is as follows: "Because his honor, the presiding judge, erred in not allowing the plaintiffs to introduce in evidence a written title deed, not signed, to the premises, the subject of the action from G. H. Warren to G. L. Warren, dated the 22d day of November,...