Woodle v. Tilghman

• Citation: 252 S.C. 138,165 S.E.2d 702
• Decision Date: 23 January 1969
• Docket Number: No. 18863,18863
• Court: United States State Supreme Court of South Carolina
• Parties: John WOODLE, Lawrence Woodle, Mitchell Woodle, Marvin Woodle, Mattie W. Cherry, Nellie W. Haselden and Ethel W. Squires, Respondents, v. H. L. TILGHMAN, Jr. and Anne T. Boyce, Appellants.

Page 702

165 S.E.2d 702

252 S.C. 138

John WOODLE, Lawrence Woodle, Mitchell Woodle, Marvin Woodle, Mattie W. Cherry, Nellie W. Haselden and Ethel W. Squires, Respondents, v. H. L. TILGHMAN, Jr. and Anne T. Boyce, Appellants.

No. 18863.

Supreme Court of South Carolina.

Jan. 23, 1969.

Derrick & Derrick, Marion, for appellants.

W. T. McGowan, Jr., George W. Keels, Florence, for respondents.

LITTLEJOHN, Justice.

This is an action to remove a cloud from a title to real estate. The defendants demurred to a supplemental complaint and have appealed to this court from an order of Circuit Judge James A. Spruill, Jr., overruling the demurrer.

The action was originally instituted in May 1952. Thereafter, in August, 1953, an amended complaint was served. Upon an agreed statement of facts the issue of construction of the will of Araline Moneyham involved in the chain of title was submitted to the circuit judge, and upon appeal from the order of the circuit court this court held that the will of Araline Moneyham, executed in 1889 and probated the same year, vested an estate know as a a fee simple conditional estate in the devisee, Della Moneyham (Woodle). See 234 S.C. 123, 107 S.E.2d 4 (1959).

Within the same action the plaintiffs have now served a supplemental complaint based on alleged adverse possession. There were before the lower court only two instruments: first, the supplemental complaint, and second, the demurrer. Accordingly, a ruling must be made based on these two instruments alone.

The supplemental complaint is as follows:

'The plaintiffs complaining of the defendants allege:

'1. That Araline Moneyham died during the year 1889, owning in fee simple the following described tract of land, situated in Dillon County (formerly a part of Marion County), South Carolina.

"All of that certain piece, parcel, or tract of land, situate, lying and being in Dillon County, South Carolina, containing Sixty Eight (68) acres, more or less, and bounded on the North by lands of J. F. Dew; on the South by the Great Pee Dee River; on the East by lands formerly of the estate of R. H. Harper; and on the West by Breeden lands and lands now or formerly owned by J. F. Dew.'

'2. That at her death, Araline Moneyham left in force and effect her last Will and Testament dated January 31, 1889, admitted to Probate in common form by the Judge of Probate for Marion County on June 13, 1889, and recorded in the office of the Probate Judge of Marion County in Will Book 5 at page 26. Item 5th of the Will of Araline Moneyham provided as follows:

'I give and devise to Della Moneyham (now about fifteen years of age) for life only and then unto the lawful issue of her body, and if she should die without children, then to Robert Harper's children share and share alike, all that tract of the James Godbold land North of a line run by J. B. White, Surveyor, during the year 1887, from Great Pee Dee River in the direction of Bear Branch.

'3. That Della Moneyham, to whom the property above mentioned was devised by Araline Moneyham, died in May, 1931, and the plaintiffs are her children.

'4. That it was the belief of the plaintiffs that the Will of Araline Moneyham gave the above described property to them after the life estate given to their Mother, Della Moneyham Woodle, and in the original complaint filed in this action the plaintiffs alleged that the subject property had been Willed to them by Araline Moneyham, and they further alleged that they, the children of Della Moneyham Woodle, had been in possession of the premises continuously, adversely, openly and exclusively, holding the same as their own against the defendants and every other person whomsoever from and after the death of Della Moneyham Woodle.

'5. That since the commencement of this action, the Will of Araline Moneyham, particularly Item 5th set forth above, has been construed by the Supreme Court of the state of South Carolina, and Item 5th has been interpreted as vesting an estate known as a fee simple conditional estate in Della Moneyham Woodle. The Supreme Court further held that a subsequent deed given by Della Moneyham Woodle was effective to convey the fee simple title to the premises.

'6. That although the Will of Araline Moneyham has now been so construed by the Supreme Court of the state of South Carolina at the time of the commencement of this action, the plaintiffs believe that under the Will of Araline Moneyham they were the owners of a fee simple title to the premises, and upon the death of Della Moneyham Woodle in the year 1931, the plaintiffs entered into the possession of the property herein described under claim of title, exclusive of any other right, founding such claim, upon the Will of Araline Moneyham as being a devise and a conveyance to them of the premises in question, and the plaintiffs have maintained for a period of more than ten years a continued adverse, hostile, open and exclusive occupation and possession of the premises or some part thereof under such claim until the commencement of this action in 1952, and by reason of such adverse possession and occupation under a written instrument as color of title for a period of more than ten years the plaintiffs are the owners in fee simple of the property described in Item 5th of the Will of Araline Moneyham.

'7. That as mentioned above, during her lifetime, Della Moneyham Woodle, gave a deed for the premises to one Philip C. Dew, which deed was followed by a series of deeds ending in a deed of one Mae Chilson Canterbury to the defendants, H. L. Tilghman, Jr. and Anne T. Boyce, dated February 18, 1948, and recorded in the office of the Clerk of Court for Dillon County in Deed Book 48 at page 317.

'8. That the (sic) by reason of the deed of Mae Chilson Canterbury, mentioned above, the plaintiff is informed that the defendants make some claim to the premises herein described, but the plaintiffs deny that any claim of the defendants is valid.

'9. That the plaintiffs are the owners in fee simple of the lands described in paragraph No. 7. The deed of Mae Chilson Canterbury to the defendants, H. L. Tilghman, Jr. and Anne T. Boyce and the other deeds mentioned above, are of no effect for any purpose, and they constitute a cloud upon the title of the plaintiffs, and the plaintiffs are entitled to have such cloud removed from their title by cancellation of the deeds.

'WHEREFORE, the plaintiffs pray that:

'1. The Court determine that the adverse claim of the defendants is of no validity and effect, and

'2. That the plaintiffs be adjudged and determined to be the owners of the premises in fee simple, and

'3. That the cloud cast upon the title of the plaintiffs by the deeds herein mentioned and described be removed by cancellation of the deeds upon the public records of Dillon County.'

For the purpose of considering the demurrer we have of course assumed all facts alleged in the supplemental complaint to be true and have disregarded any facts alleged in...