Weston v. Morgan

• Decision Date: 29 September 1931
• Docket Number: 13249.
• Citation: 160 S.E. 436,162 S.C. 177
• Parties: WESTON v. MORGAN et al.
• Court: South Carolina Supreme Court

160 S.E. 436

162 S.C. 177

WESTON v. MORGAN et al.

No. 13249.

Supreme Court of South Carolina

September 29, 1931

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by R. F. Weston against J. E. Morgan and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

The report of the master and the decree of the circuit court requested to be reported, follow:

Master's Report

This action was commenced in November, 1926, for partition of two tracts lying contiguous to each other--292 acres being in Greenville County and 147 acres in Spartanburg County. The case was referred to me by general order of reference.

By amendment of the Complaint, the action took on the nature of an action for the recovery of a one-half interest in these lands, it being alleged that the lands had been conveyed to W. T. Weston and were owned by him at the time of his death, intestate, in 1898, and that the paper titles of W. T. Weston had been fraudulently and unlawfully changed and altered by changing the grantee from W "T." Weston to W. "G." Weston. Plaintiff's claim is that W. T. Weston's widow died in 1899, and a daughter in 1915, leaving him and his brother W. G. Weston, as the owners of the lands, and W. G. Weston has conveyed his title to the defendants. The lands in Greenville County and Spartanburg County have come to the present owners through entirely different chains, and some of the facts about the title are entirely different. It is a fact that the plaintiff has never been in actual possession or occupancy of any of these lands, and that W. G. Weston transferred possession along with his transfer of title to all of the lands, some by deed and some by mortgages, which were foreclosed, and that from him possession has gone down through successive occupants to the present owners--the defendants. W. G. Weston had all of the land surveyed and platted as a single tract in May, 1905, and sold off different parcels at different times thereafter over a period of several years. The principal issue of the case is made about the deeds--one from Lipscomb covering the Greenville lands, and one from McMakin covering the Spartanburg lands, the records of which deeds purport to show conveyance to W. G. Weston. The deeds themselves were produced in court very much mutilated. The deed from Lipscomb for the lands in Greenville was made in 1886 and recorded in 1887 in Book TT, page 141. The deed itself has been so mutilated that it is not convincing evidence as to whom it was originally made, and the record book shows that the middle initial of the grantee appearing "G" is written where something had been rubbed out. Of course, the record does not disclose what was rubbed out, whether "T" or another "G" or some other letter. Plaintiff testified that he saw the deed when he was a boy, prior to 1898, and that it was made to W. T. Weston. He produced testimony that neighbors understood about 1892, or a little sooner or a little later, that the land was supposed to belong to W. T. Weston. He testified himself that he saw W. G. Weston scrubbing these deeds at Hendersonville, N. C., in 1926, and that W. G. Weston had told him that he had changed the deeds to himself and was then changing them back, and there is other testimony in support of this contention. The testimony does not convince me that there was any unlawful or fraudulent alteration or change of these deeds. On the other hand, the indications as to the Lipscomb lands are that the record was made to appear to be the record of deed to W. G. Weston at or near the time of the original recording of the deed. The change is in the handwriting of the copyist who recorded the deed, which handwriting disappears from the books in the Register's office within a few years. The natural presumption would be that the recording officer inserting the "G," regardless of when it was inserted, had some good reason for doing so, and that his so doing was a clerical correction rather than a fraudulent alteration.

The defendants, at considerable effort, sought by subp na to bring W. G. Weston into Court, the reference being adjourned from time to time to give them opportunity to serve him. The constables were unable to find W. G. Weston, although the plaintiff was evidently in communication with him from time to time and knew that he was wanted as a witness. The plaintiff himself, on cross examination, testified that, between two of the references, he had seen his brother, W. G. Weston, and had a conversation with him about the case; that he had told his brother what he had testified to with reference to the alteration of the deeds, and that his brother had denied having told him any such thing.

The defendants set up and the evidence sustains the defense of adverse possession, presumption of a grant, the statute of limitations and laches. The testimony shows unmistakably that the plaintiff has never exercised any of the functions of ownership or possession of any of these lands, and that the lands have been in the possession, occupancy, control and management, exclusively, of W. G. Weston from 1898 until the several tracts were sold off and in the successors from W. G. Weston on down to the present time, a period of 38 years, and R. F. Weston has testified that during that time he has never taken any steps whatever to get any benefits from or interest in these lands until the commencement of this action.

The testimony is convincing that W. G. Weston was claiming these lands as his own, certainly for more than 20 years prior to the commencement of this action, if not indeed for the entire period from 1898. He had the lands surveyed as his own and a plat made on which the lands were designated as his own in 1905, at which time and before he was exercising the ordinary functions of ownership cultivated part of the land, selling timber and cross ties and getting wood. His declaration to the magistrate in 1907 that he owned that land and his giving mortgages purporting to convey the whole title in 1908 and 1909, as well as the making of the survey and plat, all bespeak that the character of his possession was as the owner of the whole title. It is a very significant fact that B. M. Shuman, a very experienced and careful attorney of Greenville, investigated title to these lands for the purpose of making a loan, and did make the loan as appears by mortgage of W. G. Weston to B. M. Shuman, attorney, recorded in Mortgage Book 15, at page 160, which subsequently was foreclosed.

It does not make a great deal of difference when ouster of R. F. Weston may have been; it was certainly complete in 1905, and regardless of what interest he may have had in the lands, the presumption of title from 20 years possession excludes him, as well as everybody else. The testimony convinces me that he knew W. G. Weston was claiming this land as his own prior to 1905. In addition to the above conclusion, the circumstances shown by the testimony are such that it would be inequitable for the plaintiff to have from the defendants, the present owners of the land, any interest in this land. The lands lie pretty close to the town of Landrum, and for all these years, certainly beginning as early as 1905, W. G. Weston had been transferring parts of the land from time to time, selling off small tracts at different times, and giving mortgages. If R. F. Weston had owned any interest in these lands, the most casual concern about his ownership would have observed the necessity of taking steps to prevent the lands getting into the hands of innocent purchasers, paying the purchase price therefor, being led by the records to believe that they were getting good title. This failure to observe and act under the circumstances constitutes laches and sustains the plea of estoppel.

Assuming that the deed was made out to W. T. Weston, the evidence (as already stated) fails to establish fraudulent alteration; the presumption is that to correct error or to conform to the agreement, the alteration occurred before delivery; the law will not readily presume fraud and the proof of the alleged fraud must be so clear as to be inconsistent with any other conclusion. This presumption is strengthened by the evidence that W. G. Weston paid the purchase money and is therefore the equitable owner of the land, the defendant Morgan having amended his answer so as to allege constructive trust. And it is also strengthened by the further evidence tending to show that W. G. Weston cared for the father and mother and there seems to have been a family understanding that the lands were to be his without question and that R. F. Weston was to get the personal property, which he did get, and leave the county.

In addition to the general finding above made, the testimony showed certain additional facts as to the lands in Spartanburg County containing 147 acres. These lands were claimed both by plaintiff and defendants under a deed from James McMakin to Weston on July 20, 1887.

The original deed was introduced in evidence and upon a careful examination, under a magnifying glass, shows that the name of the grantee had been tampered with, but that it had been originally written William G. Weston. In addition to this, Mr. T. G. Davis, Cashier of the Peoples National Bank of Greenville, S. C., was offered as an expert, and, after careful examination, under a magnifying glass, testified that in his opinion the letter tampered with was a ""G" and not a "T." Plaintiffs, although having on account of the adjournments of the reference had ample opportunity to reply to this testimony, made no effort to do so.

Another significant fact is that the McMakin deed to the Spartanburg lands was recorded in Spartanburg County on February 14 1906, in Book 4-B...