Napier v. Matheson

The opinion of the Court was delivered by Mr. Justice Gary. This action was commenced on the -day of July, 1906, to recover the possession of a lot or parcel of land, containing about one-eighth of an acre. “At the conclusion of the testimony the defendant moved *432 the Court to direct a verdict in his favor, on the ground that the plaintiff had shown title only to' four-sixths of the large 4acre tract, and that no title whatever had been shown to the remaining one-third of the tract, which was more than the' amount defendant was in possession, of, which motion was refused.” The jury rendered a verdict in favor of the plaintiff, and the defendant appealed upon exceptions which will be reported. 1 First, Seventh and Eighth Exceptions: These exceptions must be overruled for the reason that if his Honor, the presiding Judge, had charged the request embodied in the first exception he would have taken from the jury the consideration of the question whether Mrs. McMillan, plaintiff’s grantor, had acquired title by adverse possession before she executed a deed conveying the land to plaintiff. 2 Second and Third Exceptions: In discussing these exceptions the appellant’s attorneys say: “The only land in dispute was the one-eighth acre' described in the complaint, yet his Honor charged throughout that the plaintiff had shown title to four-sixths of the land claimed by the plaintiff, and, therefore, the jury, under his charge, could do nothing but find for the plaintiff at least four-sixths of the one-eighth acre.” In the first place, when 'the charge is considered in its entirety, there is no reasonable ground for supposing that it would mislead the jury; and, in the second place, the verdict of the jury shows that they were not misled, as they found a verdict in favor of the plaintiff for the land in dispute, and not for four-sixths thereof. 3 Fourth Exception: The charge of the presiding Judge in this respect was as follows: “When did Mrs. McMillan go into possession of the land? Her deed, put in evidence, bears date 12th of April, 1892. When did she go. out of possession? Her deed to Napier is dated 1st of February, 1904. She was in possession of the *433 land for over eleven years; and did she hold it for eleven years as her own, using it as her own against her brothers, A. A. and W. D. Rogers; did she hold it against them, and use it for herself, for eleven years? If she did, and they 'were of age, and all the .parties were of age, that would give him a good title against them. You read the testimony of W. D. Rogers on the stand, and I will leave it to you to say whether or not he -malees any claim to the land. If by his actions he has conceded it to belong to Mrs. McMillan, I will leave it to the jury to determine whether or not he has any claim to it. ¡There is enough testimony for me to leave it to the jury to say whether or not Mrs. McMillan ever got -by deed or possession the title of A. A. and W. D. Rogers.” The testimony of W. D. Rogers tended to show -that Mrs. McMillan had acquired title by adverse possession, and was, therefore, admissible. 4 Fifth Exception: The context shows that when the presiding Judge charged that the time when the fence was built was the pivotal point in the case, he meant that it was the pivotal point in establishing the defendant’s claim of adverse possession, and not that said fact was the turning point' in the entire case. Sixth Exception: What has already been said disposes of this exception. 5 Ninth Exception: The cases of Patterson v. Crenshaw, 32 S. C., 534, 11 S. E., 390, and Duren v. Kee, 50 S. C., 444, 27 S. E., 875, show that this exception cannot be sustained. 6 The appellant’s attorneys did not argue the tenth exception; therefore it will not be considered. Judgment affirmed. Mr. Chirr Justicr Jonrs concurs in the result. Mr. Justicr Hydrick concurs in the judgment, and in the separate opinion of Mr. Justicr Woods.