Weston v. Morgan

The opinion of the Court was delivered by Mr. CitiEE Justice Brease. This cause was first heard in this Court at the October, 1929, term. The judgment of the lower Court was affirmed, the opinion being rendered by the late Mr. Chief Justice Watts. The appellants, in a very strong petition for rehearing, SO' earnestly insisted that the judgment of this Court was erroneous, that the Court, with the desire to decide the case justly under the law, granted the petition. The case was accordingly reargued at the June, 1930, term. We have given the record in the case long and careful study. We cannot get away from the conclusion that the case is one at law. Under the provisions of *197 the Constitution, we cannot reverse the findings of fact of a Circuit Judge in a case at law if he had before him any evidence whatever to support his findings. There was evidence to support the findings of Judge Mauldin, and we cannot reverse the judgment he rendered. We approve and adopt the opinion of the late distinguished Chief Justice as the opinion of this Court, which was as follows: “Mr. Chief Justice Watts: An action was commenced by the plaintiff against the defendants in the Court of Common Pleas for Greenville County in November, 1926, for the partition of two tracts of land, one containing 292 acres and being situate wholly in Greenville County, the other containing 147 acres and being situate wholly in Spartanburg County. These lands were contiguous, the 292 acres in Green-ville County being known as the Earle lands and passed from a conveyance recorded in Greenville County in Book TT, at page 141; the 147 acres in Spartanburg County being known as the McMakin lands and being described in a deed recorded in Spartanburg County in Book 4-B, at page 689. “While only one action is brought, there are in fact two separate titles and two separate sets of claimants so far as defendants are concerned. Most of the Greenville County lands are claimed by the defendant J. E. Morgan, and most of the Spartanburg County lands are claimed by the defendants J. J. Gentry and B. W. Montgomery. The remaining portion of the Greenville County lands were claimed by some of the defendants, but they have not appealed, and part of the Spartanburg County lands were claimed by the defendant, J. E. Henderson, and the plaintiff admitted that he had established good title, and hence this appeal does hot involve the portion claimed by him. “The defendants filed separate answers asserting title in themselves. The defendant Gentry acquired his title from the Master in a foreclosure, the deed to him being executed June 6, 1916, which was a foreclosure against W. G. Weston *198 of a mortgage made by him to J. C. Wall, the mortgage being dated March 8, 1910, and covering the entire 147 acres of land. The defendant Morgan acquired his title by deed from J. W. Norwood, November 1, 1919; Norwood having bought at Master’s sale in 1913, which sale was in foreclosure of a mortgage made by W. G. Weston to B. M. Shuman, attorney, April 3, 1911. The Norwood title covers 203 acres; Morgan acquired the balance of the tract by deed from R. J. McClure, dated March 9, 1919, McClure having acquired title deed from W. G. Weston, dated July 2, 1908, and recorded January 18, 1912. All these deeds and mortgages purported to1 convey the entire title to the lands described herein in fee-simple, with general warranty clauses. “W. T. Weston died intestate in July, 1898, leaving as his sole heirs at law his widow and three children. His widow died intestate in 1899, leaving as her- heirs at law three children, and one of the children, a daughter, died intestate in 1915, leaving as her heirs at law her two brothers, R. F. Weston and W. G. Weston. Plaintiff seeks recovery of an undivided one-half interest in these lands by inheritance from his father, mother, and sister. “The case was by a consent general order of reference referred to the Master of Greenville County, who after holding numerous references filed his report on April 7, 1928, finding that the defendants were the owners in fee of both the Greenville and the Spartanburg lands; that plaintiff had no interest therein and recommended that the complaint be dismissed with costs. “To this report plaintiff filed exceptions, and on August 2, 1928, the Circuit Judge filed his decree overruling the Master’s report and finding that the plaintiff is the owner of a one-half interest in the lands described in the complaint and is entitled to partition of the said lands. In due time notice of appeal was served and exceptions taken. “Judge Mauldin’s decree states the facts and will be reported. *199 “The suit was for partition, but the appellants and respondents each claimed title in themselves and agreed to refer the case to- the Master. On coming in of his report the Circuit Judge heard the case, neither side asked for a jury. His Honor committed no error when he tried the title for the suit resolved itself into a trial of title. This Court has repeatedly held in a law case that we will not disturb a finding of fact by a Circuit Judge if there is any testimony to sustain it. “The constitutional provision, Article 5, § 4, Constitution 1895, is as follows: ‘The Supreme Court .shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus and other original and remedial writs. And said Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law, except in chancery cases where the facts are settled by a jury and the verdict not set aside, and shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may by law prescribe.’ “In the case of Metze v. Charlotte, Columbia & Augusta R. R. Co., 23 S. C., 1, 24, the Supreme Court of our state lays down unqualifiedly the rule that where a law case has been passed on by a trial Judge, the Supreme Court will not review the facts. The Supreme Court bases its holding on the constitutional provisión relating to its powers in law cases. The Court has the following to say: ‘If the jurisdiction of the Supreme Court in appeals was defined only in the sections of the code which we have cited, unaffected by the provisions of the Constitution, as is the case with reference to the jurisdiction of the Circuit Court to review the report of a referee, then such jurisdiction would not be limited to the correction of errors of law only, but would extend to the correction of errors of fact also by the express terms of those sections; but as the Constitution, which is of superior authority, does place such a limitation upon *200 the jurisdiction of the Supreme Court, the comprehensive language of those sections, when applied to the Supreme Court, must necessarily be narrowed down to the limits fixed b}>- such superior authority.’ “ ‘A finding of fact by a Circuit Judge concerning an occurrence in his presence will not be disturbed on appeal.’ Younger v. Massey, 41 S. C., 50, 19 S. E., 125. “ ‘Findings of fact by the Court without a jury are not subject to exception or review.’ Peeples v. Cummings, 45 S. C., 107, 22 S. E., 730; Holtzclaw v. Green, 45 S. C., 494, 23 S. E., 515. “• ‘An action to recover possession of a tract of land being an action at law, and the issue of title having been submitted to the Court without a jury, questions of fact must be accepted as finally settled, since the Supreme Court has no jurisdiction to review issues of fact in a law case.’ Gunter v. Fallaw, 78 S. C., 457, 59 S. E., 70. “The foregoing case is very similar to the case at bar. The issue of title was submitted to the trial Court without a jury and the Supreme Court refused to review the findings on the facts. “ ‘On appeal from the Probate Court to the Circuit Court on probate of a will, the cause must be regarded as a law case, the issue of will or no' will, both as to real and personal property, being legal in its nature, and the Circuit Court’s findings of .fact are not reviewable by the Supreme Court.’ Thames v. Rouse, 82 S. C., 40, 62 S. E., 254. “In the case of Vlasservitch v. Railway Co., 85 S. C., 296, 67 S. E., 306, the Circuit Judge modified the appeal from -the Magistrate’s Court and made certain findings on facts. On the appeal to the Supreme Court this Court stated at page 296 of 85 S. C., 67 S. E., 306, 308: “ ‘This is an action at law, and this Court has not the power to review the facts, except for the purpose of determining whether there is aity testimony whatever to sustain *201 the findings of the Circuit Judge. Jenkins v. Ry., 73 S. C., 289, 53 S. E., 480, 481. “ Tf, therefore, the facts in this case are susceptible of more than one inference, the conclusion of the Circuit Judge necessarily involves the finding of such facts in favor of the plaintiff, and they cannot be reviewed.’ “ Tn an action at law, though tried by the Court, the appellate Court cannot review the evidence, unless it was susceptible of but one inference, or unless the decision of questions of fact was influenced or controlled by an error of law.’ Dillon County v. Lane, 114 S. C., 494, 104 S. E., 184. “The defendants’ exceptions complaining of error as to the trial Court’s findings on the facts should be overruled; this being a case at law, and the only contested issue being that of title or no title. Practically all of the defendants’ exceptions came within this classification. In short, the defendants are asking the Court to review and alter the findings of the trial Court on the facts. Under the foregoing authorities defendants are not entitled to demand of this Court a departure from this well-established rule of law. “We agree with the Circuit Judge that there is no evidence of ouster. The Circuit Judge found that there was forgery and material alteration in the deed. “In the case of Garvin v. Garvin, 40 S. C., 435, 19 S. E., 79, 84, the Court approved a portion of the charge, dealing with a fraudulent deed which was given, as follows : Tn my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as “color of title,” until in some way or other the judgment creditor was affected with notice of that fraud.’ See, also, Powell v. Pearlstine, 43 S. C., 403, 21 S. E., 328. “There is a very recent case by our Supreme Court dealing with the question of possession and ouster; it is conclusive of any argument on these questions under the facts in this *202 case. This case of Whitaker v. Jeffcoat, 128 S. C., 406, 122 S. E., 495, reconciles the various other cases in this State on the subject and lays down the rule in simple language applicable to tenants in common. On page 496, of 122 S. E., the Court says: “ ‘The presumption is that the possession of a tenant in common is for the benefit of all, and before the statute can begin to run it must appear that the holding tenant claimed the property as his own and has in unequivocal terms so notified the others. “ ‘Villard v. Robert, 1 Strob. Eq., 393; Gray v. Givens, 2 Hill Ek., 511; Burnett v. Crawford, 50 S. C., 161, 27 S. E., 645; McGee v. Hall, 26 S. C., 179, 1 S. E., 711; Jefcoat v. Knotts, 13 Rich., 50; Gray v. Bates, 3 Strob., 498; Metz v. Metz, 48 S. C., 472, 26 S. E., 787; Coleman v. Coleman, 71 S. C., 518, 51 S. E., 250; Powers v. Smith, 80 S. C., 110, 61 S. E., 2227 “On the same page it will be observed that the defendant had had possession of the lands in question for more than twenty years, but it was of such nature that the Court did not recognize it as such adverse possession as is necessary to establish title. The Court says: ‘His possession for more than 20 years is marked by only the slightest evidence of proprietorship. He cultivated .the land, it is true, and used the proceeds; but, beyond the erection of a small cotton house, his expenditures on improvements or other acts indicative of ownership are nil.’ “At the bottom of page 495 of 122 S. E., the Court said: ‘His only defense against the claims of his own brothers and sisters and their children is that he acquired title by adverse possession; an unconscionable claim, that the Court should not sustain, except upon a clear preponderance of the evidence.’ “In the case of McGee v. Hall, 26 S. C., 179, 1 S. E., 711, on page 716 of the S. E. Reporter it will be observed that sixteen years of adverse possession was not regarded as *203 sufficient by one tenant in common to enable the defense of ouster to be interposed, and the case of Gray v. Givens is cited. The defendants have cited this case, and a close reading will show that it conforms to our conclusions. “Further the defendants have freely cited Powers v. Smith, 80 S. C., 110, 61 S. E., 222, the syllabus to that is as follows: Tn action by tenants in common possession for twenty years in face of notorious and exclusive possession by other tenants with the use and exercise of authority incident to exclusive and adverse ownership presumes ouster, and to acquire such possession heir may tack his possession to that of ancetor.’ “This case is not at variance with plaintiff’s contention that there was no ouster in the Weston case since in the Powers case the Court said: ‘The possession must be openly and notoriously hostile and adverse.’ “The very recent case of Clarke v. Johnson, 150 S. C., 351, 148 S. E., 190, decided by the Supreme Court of this State on May 13, 1929, deals with the question of ouster and adverse possession where there is tenancy in common, a state of facts very similar to those in the case at bar. We shall refer .more fully to- the Johnson case under the head of adverse possession, hereinafter discussed. The Johnson case was a unanimous opinion, and the syllabus on ouster is as follows: ‘Possession of cotenant can never ripen into adverse title without clear evidence of ouster, since presumption is that such possession is for benefit of all.’ “In the case of Love v. Turner, 71 S. C., 322, 51 S. E., 101, 104, the Court laid down the following rule: ‘If plaintiff had the legal title, he was presumed to be possessed of the land within the 10 years, and it was necessary to rebut this presumption by proof of continuous adverse possession of some other person for 10 years. Code Civ. Proc., 1902, §§ 99, 101; Garrett v. Weinberg, 48 S. C., 28, 26 S. E., 3.’ “In the case of Lewis v. Pope, 86 S. C., 285, 68 S. E., 680, the Court said on page 683 : ‘Before one can succeed in *204 holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely. He cannot succeed in such claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years.’ “Two or more unrelated holdings cannot be united in the last occupant to make up a holding of ten years possession. Goings v. Mitchell, 110 S. C., 380, 96 S. E., 612; Turpin v. Sudduth, 53 S. C., 295, 31 S. E., 245, 306; Epperson v. Stansill, 64 S. C., 485, 42 S. E., 426. “A plaintiff claiming title by adverse possession must show the extent of his possession. Cantey v. Platt, 2 McCord, 260. “The burden of the proof of adverse possession is on the one relying thereon. Gourdine v. Fludd, Harp., 232. “Occasional and temporary use or occupation does not constitute adverse possession. A. C. L. R. Co. v. Searson, 137 S. C., 468, 135 S. E., 567. “ ‘Adverse possession is an affirmative defense.’ Suber v. Chandler, 36 S. C., 344, 15 S. E., 426. “And to constitute adverse possession it must be open, notorious, exclusive, hostile, continuous, and unbroken for the whole period. Hill v. Saunders, 6 Rich. 62; Ouzts v. McKnight, 114 S. C., 303, 103 S. E., 561; Clary v. Bonnett, 114 S. C., 459, 103 S. E., 779; 1 R. C. L., 700-716. “Successive possessions for less than the statutory period cannot be tacked, unless by descent cast. King v. Smith, Rice, 10; Porter v. Kennedy, 1 McMul., 354; Garrett v. Weinberg, 48 S. C., 28, 26 S. E., 3. *205 “Occasional or temporary use or occupation is not sufficient. Jackson v. Lewis, Cheves, 259; McCullough v. Wall, 4 Rich., 68, 53 Am. Dec., 715. “ ‘In an action to recover land, where plaintiffs have proved a good legal title in themselves from their ancestor, under the direct provisions of Code Civ. Proc., 1912, § 126, it will be presumed that they had possession within the period of limitations, and the possession of defendants was in subordination to the legal title, casting the burden on defendants to show that their possession was adverse.’ Stokes v. Murray, 102 S. C., 395, 87 S. E., 71. “To the same effect, Love v. Love, 57 S. C., 530, 35 S. E., 398. “ ‘A party claiming title to land by adverse possession, must show clearly, not only that his possession was adverse, but that it was for the full statutory period. If there be doubt on either of those points, the possessory claim must yield to the legal title.’ Abel v. Hutto, 8 Rich., 42. “Lewis v. Pope, 86 S. C., 285, 68 S. E., 680, 683, wherein the Court states: ‘Before one can succeed in holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely. He cannot succeed in such claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years.’ “In Bradley v. Calhoun, 125 S. C., 82, 117 S. E., 811, 815, the Court said: “The principle is just and well-established that, where one’s possession was begun in privity with or in subservience to the title of another, a quasi fiduciary relation is established, and, before a foundation can be laid for the operations of the statute of limitations or the defense of adverse possession by the acquisition of an outstand *206 ing title, a clear, positive, and continued disclaimer of the title under which he entered and the assertion of an adverse claim must be brought home to the other party. Until the trust is openly repudiated, the cestui que trust may rely upon the integrity of the trustee without endangering his right by lapse of time.’ “In Sudduth v. Sumeral, 61 S. C., 288, 39 S. E., 534, 539, 85 Am. St. Rep., 883, the Court said: Tt is quite true that, if a person goes into possession of a tract of land as a tenant in common with another, no length of such possession can give him a title by the statute of limitations against his co-tenant, for the very obvious reason that his possession cannot be adverse to his co-tenant until an ouster is established.’ ” The judgment of this Court is that the judgment below be, and the same is hereby, affirmed. Messrs. Justices Stabler and Carter concur.