Hazelwood v. Mayes

The opinion of the- Court was delivered by Mr. Justice Watts. This is a suit for the purpose of recovering a tract of land alleged by the plaintiff to have been set off to her as a dower right in the land which -she alleges belonged to her husband in his lifetime. The case was tried before his Honor, Judge Shipp, and a jury, at the September term of Court, 1917, for Union county. At the close of plaintiff’s evidence a motion for a nonsuit was made by the defendants and overruled. His Honor practically directed a verdict in favor of plaintiff; the only question he submitted to the jury being damages, actual, for being deprived of the possession of her property by the defendants. The jury found a verdict in favor of the plaintiff for the possession of the land for the period of the life of plaintiff and for the sum of $50 damages. After entry of judgment, defendants appeal. 1 Exception 1 is overruled. The .evidence objected to was family history, and competent, and from the facts stated the law presumes death. The members of the family were in the Civil War and n--'t heard of for more than 50 years. Death, birth and marriage are family history, and are exceptions to the hearsay rule, and may be proved by reputation in the family and similar testimony. Taggart v. Taggart, 89 S. C. 490, 71 S. E. 1081. *29 2-5 *28 Exception 2 is overruled. The witness testified as to the acts done by himself, and the then owner of the land, Wil *29 liam Little, in the matter of assertion, demand, settlement and admeasurement of the dower of the plaintiff. This was competent, as were the findings and acts of the arbitrators or commissioners on dower, agreed upon by the plaintiff and Little, the purchaser at sheriff’s sale. The facts testified to were within the knowledge of witness, and were part of the res gestae, and admissions made by Little, the then owner and in possession of the land, against his interest. His Honor was also correct in overruling objection on the ground that witness was not a party in interest, and that section 438 of the Code of Civil Procedure did not apply. Exception 3 is overruled.. It is evidently taken under a misapprehension, as the record shows his Honor sustained the objection; neither does section 438 apply. Exception 4 is overruled, for the reasons assigned in overruling exceptions 1 and 2, and for the further reason it is neither, obnoxious to the statute of frauds nor section 438 of the Code. 6, 7 Exception 5 is overruled. The deed from King to Hazel-wood was on record in proper office. The defendants knew the wife was living, and an investigation of records in public proper offices would have informed them that the land had been sold under sheriff’s execution and no dower renounced. Dower lies in admeasurement and possession thereunder, and no record is necessary. . Where one enters into the possession of lands that are bought bjr him at a sheriff’s sale under execution against a husband, it is the same as though the purchaser had bought directly from the husband, and the defendants, holding title through the sheriff under a sale execution against the husband, are estopped from denying the title of the husband. Morgan v. Smith, 25 S. C. 339. In this case there is evidence and record of sheriff’s deed under execution against the husband of plaintiff. There is evidence of marriage, seisin and possession of *30 the husband, and, if defendants had examined records, they would have found that plaintiff had not renounced dower. 8 The plaintiff’s right and title to dower is found in her husband’s title and possession during coverture. Plaintiff’s right accrued at her husband’s death, and when Little consented it was allotted to her and admeasured and set off, and she was put in possession, and there was no need of record, and if defendants had been careful, and examined and traced the title the)' purchased, they would have'been put on notice and made aware of the fact that plaintiff had not renounced her dower rights, and that her dower rights were outstanding. Exceptions 6, 7, 8, 9 and 10 are overruled. An examination of the evidence in the. record shows these exceptions are without merit, and his Honor., under the evidence and circumstances in the case, made a correct statement of the law in the case, and properly directed a verdict as far as he did. Exceptions 11 and 12 are overruled. The plea of innocent purchaser for value without notice has no application under the facts of this'case. 9 Judge Shipp did not have the authority by his order of February 6, 1917, at. Spartanburg, to vacate the order he had made at Union, S. C., September 20th, before that time; but the order made at Union was without notice, and would have been reversed on appeal under our view, for the reasons assigned by his order last made, and we think his. making the order was harmless, and in our view of the case his Honor was correct up to the time he passed the two orders, and that all the exceptions should be overruled and judgment affirmed. Mr. Chiee Justice Gary and Messrs. Justices Hydrick and Fraser concur. Mr. Justice Gage did not sit in this case.