Welch v. Carter

• Decision Date: 25 June 1929
• Docket Number: 12683.
• Citation: 148 S.E. 697,151 S.C. 145
• Parties: WELCH v. CARTER.
• Court: South Carolina Supreme Court

148 S.E. 697

151 S.C. 145

WELCH v. CARTER.

No. 12683.

Supreme Court of South Carolina

June 25, 1929

Appeal from Common Pleas Circuit Court, of Marion County; Wm. H Grimball, Judge.

Action by Mrs. Mollie Welch against E. H. Carter. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lide & McCandlish, of Marion, for appellant.

L. M Gasque, of Marion, for respondent.

BLEASE J.

This action was commenced on or about February 19, 1927, to enjoin the defendant from trespassing upon a tract of land in Marion county, containing 52 1/2 acres, and for damages for cutting and removing certain timber therefrom. The plaintiff alleges that she is seized and possessed of said tract of land. The defendant duly answered, interposing a general denial pleaded the statutes of limitation; and alleged (1) that he is the lawful owner and in possession of two tracts of land in said county, containing 87.25 acres, (2) that he had been in adverse possession thereof for more than 10 years, and that, his ancestors, predecessors, and grantors had been in possession thereof for more than 20 years, and (3) that plaintiff had trespassed upon the northern portion of said tract; and asked for damages and an injunction.

The tract of plaintiff lies north of and adjoins defendant's tract. The disputed area involves only 11.81 acres. The real dispute is the location of the dividing line between the tracts of plaintiff and the defendant. Plaintiff contends that the real dividing line is the line designated "A B C" on the plats introduced in evidence, while the defendant contends that the line designated "D G F" is the real dividing line. If the line contended for by plaintiff is the true dividing line, then the disputed area belongs to plaintiff, but if the line contended for by defendant is the true dividing line, then the disputed area belongs to the defendant.

The cause came on for trial before Judge W. H. Grimball and a jury at the December, 1927, term of court for Marion county and resulted in a verdict for the plaintiff. The defendant moved before Judge Grimball for a new trial, on the ground that the verdict was against the overwhelming weight of the evidence. The motion was refused. Thereafter, the defendant moved before Judge Shipp for a new trial, on the ground of after-discovered evidence, but said motion was also refused. The defendant appeals to this court on the grounds set out in the record.

Appellant's first exception is as follows:

"1. Because the Court erred it is respectfully submitted, in charging the jury as follows:

"'I charge you that the plaintiff and the defendant both have come in and claimed what is known to the law as paper title to the land, and so far as the law is concerned, both parties have an apparent good paper title to the land.'

"And in further charging the jury:

"'And I charge you that both have an apparent paper title to the land." D'

We think this charge was erroneous. The only paper title introduced and relied upon by plaintiff was an old plat designated as the "Harllee Map" made in 1824, and a deed from Jane Bryant et al. to Solomon Bryant, plaintiff's father, the date of which does not appear, but which seems to have been probated and recorded in 1888. According to plaintiff's testimony, Solomon Bryant died in 1918. No paper title of any kind was introduced which conveyed to her the tract of land, or any part thereof, described in the Solomon Bryant deed. It is true that plaintiff is the daughter of Solomon Bryant, but it does not appear she was the only child of Solomon, or that his wife did not survive. It was not established that plaintiff inherited this land from her father. In the absence of evidence to the effect that plaintiff was the only heir of Solomon, or the only surviving heir of any widow or other children of Solomon, it could not be said that plaintiff has an apparent good paper title. Commenting upon a similar break in a chain of title, in Battle v. De Vane, 140 S.C. 305, 138 S.E. 821, Mr. Justice Cothran said: " There is another break in the plaintiff's chain, in the devolution from Nancy Strickland to her daughter, Joanna, who married Todd. It does not appear that Joanna was the only child of Nancy Strickland or that her husband was not alive at her death. The claim that Joanna inherited from her mother has not been established."

The second exception complains...