Brock v. Kirkpatrick

May 31, 1904. The opinion of the Court was delivered by The judgment of the Circuit Court should be affirmed. 1. The appeal is premature. The action is purely equitable, to subject lands devised to the debts of the testatrix against devisees in possession under the will, and it has been referred to the master to hear and determine all equitable issues. There has been no order, judgment or decree in the case from which an appeal can be taken under sec. 11 of the Code of Procedure. True, there is a verdict of a jury on certain matters submitted to them, but no order or judgment has been predicated thereon, and it has been frequently held that an appeal will not lie from a verdict. All v. Hiers, 59 S.C. 558, 38 S.E., 157; Hutmacher v. Railway, 63 S.C. 124, 40 S.E., 1029. 2. The answer does not raise any legal issue of title by adverse possession which is triable by jury as matter of right. Confusion has arisen by a failure to observe the real nature of the action and the defense. The action is equitable, and is necessarily predicated on the fact that both title and possession are in the devisees under the will. It is based upon the creditor's equity to subject the devised lands to the debts of the devisor. The answer properly construed sets up no title inconsistent with plaintiff's equity. In order to make this clear we quote the answer as follows: "That by her last will and testament mentioned in paragraph IV. of the complaint, the said Jane Taylor devised to the defendant, Hannah Kirkpatrick, two hundred acres of land and to the defendant, Annie *Page 234 Taylor, two hundred and sixty acres of land, the two parcels being that tract of land described in the complaint, and these defendants are now the sole owners and possessors thereof in fee simple. That immediately after the death of the said Jane Taylor, to wit: on the 16th day of December, 1888, each of said defendants under and by virtue of saiddevise entered into the sole and exclusive possession of her respective tract of said land, and each of them has remained in the exclusive and adverse use and occupation of her tract of said land, exercising acts of sole ownership and receiving the rents, issues and profits of the same continuously for a period of more than ten years next preceding the commencement of this action. These defendants interpose their continuous adverse possession of said lands as a bar to this action." By the first part of the answer, defendants claim to be the owners in fee simple under the will of Jane Taylor, and by the second part of the answer defendants assert that theyentered into sole and exclusive possession of said land underand by virtue of said devise, and have remained in exclusive and adverse use, c., for ten years preceding the action, which possession is interposed as a bar to this action. Thus it will be seen that the answer sets up no title paramount to plaintiff's equity. The rule is thus stated in Sale v. Meggett, 25 S.C. 77: "Where a title is set up, which if proved to exist as alleged would be superior to the plaintiff's title, then in such case, the existence of such title is a matter for the jury, under the instruction of the Judge as to the law involved. But where, even admitting the title claimed by the defendant as alleged, yet if it is inferior to that of plaintiff and as a matter of law would not defeat his claim, if sustained by the verdict of the jury, then there is no necessity for the Judge trying an equity cause to submit the title to a jury, for the reason that, in fact, the title is not really involved, as the defendant can claim nothing under it; and, therefore, it would be wholly useless to encumber the proceeding with a separate trial in *Page 235 reference thereto. The Judge himself may adjudicate the rights of the parties." In Bank v. Peterkin, 52 S.C. 236,29 S.E., 546, which was an equitable action to foreclose a real estate mortgage, a defendant was allowed to have an issue of title submitted to a jury because the answer raised an issue of paramount title in himself, which would defeat plaintiff's recovery as to him. In order to raise an issue of title in defendants triable by jury, as matter of right, so as to defeat plaintiffs' action, it would be necessary to set up title paramount to the title of testatrix. It is true, that plaintiffs' recovery in this case could be defeated by showing exclusive possession of the devised lands for ten years after the right of action accrued in favor of plaintiff. But such a defense raises no issue of title triable by jury as matter of right. Such defense is really equitable. It is founded not upon defendants' title or possession, which is undisputed, but upon the delay or laches of plaintiffs in enforcing their equity. In such cases the court of equity might or should hold the remedy barred in analogy to the statute of limitations with reference to actions to recover possession of real estate. Miller v. Mitchell, Bailey Eq., *437. If this is the correct view of the issue as raised by the pleadings, then manifestly it would be wrong to remand the case to the Circuit Court for a new trial before a jury on the question of title made by the pleadings. 3. On the call of the case, June 27, 1901, on motion of defendants' attorneys, Judge Klugh made an order in these terms: "The defendants having set up in their answer that they are, and have been since December, 1888, in the continued and adverse possession of the land in dispute, and having asked for a trial by jury on this issue; after argument of counsel, pro and con, it is ordered, that the case be transferred to calendar (1) one, for the purpose of trying said issue by jury." The cause was called on calendar 1, at the term, 1901, before Judge Townsend, and a question arose as to the proper way to submit the question to the jury. After argument, Judge Townsend drew up the following *Page 236 issues for the jury: "1. Has the defendant, Annie Taylor, acquired title to the 260 acre tract by adverse possession? (2) Has the defendant, Hannah Kirkpatrick, acquired title to the 200 acre tract by adverse possession?" The jury found both questions in the negative, and it is now sought to set aside these findings of fact mainly because of alleged misdirection to the jury. The charge and refusals to charge are sufficiently set out in the opinion by acting Associate Justice Ernest Gary, and need not be further particularized. The main point is substantially involved in the third exception, which alleges error "in charging the jury that the ten years necessary to give defendants title by adverse possession must commence to run from the time the executor was exhausted, and that the jury must commence to count from that time and not from the time that the defendants went into possession, claiming as their own and exercising acts of sole ownership." The evidence showed that judgment was obtained against the executor March 21st, 1895, nulla bona return April 13, 1895. The action was commenced April 20, 1899. The case states that "defendants offered evidence tending to show their claim of title as alleged in their answer, and that they had been in the exclusive and adverse possession of said lands, claiming them as the sole owners, since December 16, 1888." As has already been shown, the claim of title as alleged in the answer was under the will of Jane Taylor, under which defendants entered and remained in exclusive possession of the land from the death of the testatrix, which was December 16, 1888. The charge must, therefore, be construed with reference to the case as made by the pleadings and evidence, and not on the theory that defendants had set up an independent and paramount title in themselves. The authorities are clear to the point that an heir or devisee having entered as such cannot acquire title to the lands descended or devised as against the debts of the ancestor or devisor by a claim of adverse possession as against the title descended or devised. Wheeler v. Floyd, 24 S.C. 420; *Page 237 Rhett v. Jenkins, 25 S.C. 453; Roberts v. Smith, 21 S.C. 455; 1 Cyc., 1055. It is true, that in Cleveland v. Mills, 9 S.C. 436, an action to subject lands devised to payment of testator's debts, the Court said, defendants, as one of their proper defenses, could "have relied on their own possession for the statutory period, as in Miller v. Mitchell, Bail. Eq., *437." But in order to ascertain what the Court meant by that language, we must resort to Miller v. Mitchell, and on referring to that case, we find that Chancellor Harper said: "I wish, however, to express the opinion distinctly, that petitioner is barred by his delay after the recovery of his judgment in 1820 and the defendant protected by lapse of time in analogy to the statute of limitations. The defendants have been in possession of their legacies since 1812, claiming adversely — that is, claiming them as their absolute unqualified property. Whatever equity or cause of action the petitioner has against them now arose, at all events, on the return of nulla bona to his execution issued on the judgment of 1820. At that time the executor, Lazarus, had become insolvent, although the precise date of his assignment for the benefit of his creditors does not appear. The master's report states that judgments obtained against him as early as 1818 remained unsatisfied; and I conclude he was insolvent when the judgment of 1820 was obtained. But the return of nulla bona must have been made within the year after the judgment rendered; and the present petition was not filed until March 10, 1826; and by any computation the petitioner's equity must have arisen more than four years before his present suit was commenced." Manifestly the adverse possession relied upon in that case to bar the creditor's equity was a possession held for the statutory period after return of nulla bona against executor. A devisee in possession of land under a will holds it subject to the equity of the creditors of the devisor to have it sold for the payment of his debts. By the decision of this Court, in the former appeal in this case, the creditor's equity to subject lands devised to the payment of the testator's debts *Page 238 does not arise until the executor has been exhausted and return of nulla bona. Brock v. Kirkpatrick, 60 S.C. 322,38 S.E., 779. Until then plaintiff had no right of action against defendants, and defendants' possession and use of the land was entirely consistent with a devise held subject to the rights of testator's creditors. The devisees' possession of devised land, in order to be adverse and exclusive so as to bar the equity of the testator's creditors, must be hostile to such equity, and can only have starting point when right of action accrues in favor of the creditor. I think, therefore, that the jury were properly instructed. Under these views, the appeal should be dismissed, and the cause allowed to proceed under the order of reference to hear and decide all equitable issues raised by the answer. The judgment of the Circuit Court is affirmed.