Thompson v. Brannon

The opinion of the court was delivered by Simpson, C. J. The appeal in this case embraces two cases,, between the same parties, which were tried together below: one549 for claim and delivery of certain pieces of board timber, and the other in the nature of an action of trespass quare clausum fregit —the main question below being a question of title to a certain tract of land described in the complaint. The verdict in both cases was for the defendant below — respondent here. The plaintiff has appealed, and his appeal is founded upon objections, made during the progress of the trial, to the admission of certain testimony hereafter to be noticed, and on exceptions to the refusal of the judge to grant a new trial upon grounds which will be found below. The brief fails to show that any exception was taken to the rulings of the Circuit judge on the questions raised during the trial as to the admissibility of evidence. Objection was made, but the appellant seems to have submitted to the rulings of the presiding judge without excepting. According to strict rule the failure thus to except would preclude the raising of these objections here; but the respondent has not claimed the enforcement •of the rule, and the court is not disposed, on its own motion, to do so. Neither of the parties appears to have been in the actual possession of the precise piece of land upon which it is alleged the trespass complained of was committed. Each endeavors to show, however, that it is within the boundary of his claim, and for that purpose respondent introduced two plats, one known as the Enloe plat and the other as the William Black plat, as covering this land. The Enloe plat was made in 1868 for the immediate grantor of respondent, and the Black plat was made in 1844 for William Black, under whom respondent's grantor claimed. These were both private plats. In Simmons v. Parsons, 2 Hill 492, the court said: “ That •color of title is anything which shows the extent of the occupant’s claim ” In Slice v. Dessick, 2 Rich. 629, Judge O’Neall said: “ That marking of trees on line or making a survey may constitute color of title, although it is true that these in themselves would not constitute such a possession as would bar the owner of legal title.” In Turnipseed v. Hawkins, 1 McC. 278, an old survey, made for the party in possession, was admitted. In Gray v. Bates, 3 Strob. 498, it was said that the deed, con [550] tract or plat under which possession was acquired, constitutes-color of title and defines or shows the extent of the occupant’s claim. The purpose of the plats introduced in the case now before the court was to show the extent of the respondent’s claim, and while they cannot confer title in themselves, under the above-authorities, they were admissible as evidence. One of them, at least, had come into the possession of the respondent through his grantor, Mary Hagerty, and the other from those under whom she claimed. They were a part of his muniments of title, and we think they were properly admitted for what they were worth. The respondent introduced a paper purporting to be a grant from King George II., dated in 1755, known as the Floyd grant.. The admission of this paper was objected to by appellant “ because there was no evidence of its being a grant.” Upon inspection the judge overruled the objection and admitted the paper.. We see no reason to sustain the assignment of error here. Nothing is furnished in the argument upon which the court can found a judgment; and Judge Wallace having been satisfied,, upon inspection of the paper, we cannot, in the absence of all information on the subject, disturb his conclusions. The next objection refers to two deeds offered by respondent and admitted by the court: one deed known as the Robinson-deed and the other as the Wilson Black deed, the first dated in March’, 1772, and the other in March, 1784. As to the first deed, it is stated in the brief that it bears now the signature of only one witness — John Waterson. But it was proven before a justice of the peace for Cseven county, South Carolina, August 4th, 1772, by the oath of Samuel Robinson, who swears that John Waterson and Joseph Scott, with deponent, witnessed the execution and subscribed their names thereto together with this deponent. The signature of the justice of the peace, who died in 1822, was proven to be genuine. The Wilson Black deed, on its face, showed that it was executed in the presence of three witnesses; but this deed had not been probated, or, at least, there was no probate endorsed, nor had it been registered, and its introduction was objected to on, that account. [551] The appellant’s counsel has stated the true rule as to the admission of such papers. “ Deeds and other writings over thirty years old may be offered without formal proof of their execution, if the witnesses be dead, where there is no doubt as to their genuineness, and when they come from the proper custody.” And Mr. Greenleaf says: “ Whether, if the deed be a conveyance of real estate, the party is bound first to show acts of possession under it, is a point not perfectly clear upon the authorities, but the weight of opinion seems in the negative.” Greeiil., vol. I., § 144, and note, where possession is held not necessary. In Swygert v. Taylor, where an old deed was admitted without formal proof of its execution, Judge Butler, in delivering the opinion of the court, said: “The deed purports to have been executed seventy-two years ago, and upon inspection it had all the appearance of an ancient paper. Any incontestable fact going to show that a deed was in existence more than thirty years before it is offered in evidence, will authorize its introduction as . an ancient muniment of right. Possession is that which seems to be most generally resorted to for this purpose, because it is the most usual mode of asserting a right under legal title. This, however, is not indispensably necessary.” 2 MeO. 404. In Duncan v. Beard, ColCock, J., said : “ I take it to be a well-established doctrine that a deed of thirty years may be given in evidence without proof of its execution, if accompanied by possession, and a mere entry for the purpose of survey has been considered as sufficient possession.” See, also, Edmonston v. Hughes, Cheves 82; Swygert v. Taylor, 1 Rich. 54; Eubanks v. Harris, 1 Spears 176. The deed -from Wilson to Robert Black .was dated in 1784, and William' Black, under whom Mary Hagerty claimed, inherited from Robert Black, his father. William Black had plat made in 1844 covering the land, paid taxes, and, in the language of one of the witnesses, got what wood he wanted to burn off of it. We think this deed was properly admitted.. The Robinson deed was executed long before the act of 1795, and we think there was no error in the presiding judge permitting it to go to the jury. As to its effect a question might have been raised. Craig v. Person, Cheves 272. [552] .Appellant, we think, must fail to take any benefit from his exceptions to the charge of the judge — both as to the charge itself and as to his refusal to charge the propositions requested by appellant. The judge instructed the jury that if they found that William Black had been in possession under color of title for twenty-five years, they must presume a grant. The judge did not discuss the facts as to whether Black had been in possession long enough to presume a grant; on the contrary, he distinctly left this to the jury. The facts may or not have been sufficient to warrant the jury in finding the necessary possession; this was entirely for them, and the judge in substance so said. Was he in error in this charge ? Appellant’s counsel extracts from McLure v. Hill, 2 Const. R. 420; and Smith v. Asbell, 2 Strob. 141, this rule: “ The facts necessary to authorize the presumption of a grant of land are, that the possession was adverse and that it was continuous for twenty years.” The charge of the presiding judge was in accordance with this rule, and, therefore, must be sustained. The appellant requested the judge to charge “ that if the jury found that plaintiff was in possession of part of the premises under his title, his possession of a part was possession of the whole; and if adverse to Mrs. Hagerty’s title for ten years, plaintiff must recover.” This, in substance, was the request found in exceptions of both two and three. The judge, in response, charged that if there was a joint occupation of part of the land, the title must prevail. Here was a contest between two parties, neither of whom had ever been in actual possession of the precise locus upon which the trespass was committed, but both claiming by virtue of being in possession of part and color of title reaching over the place in dispute. Under such circumstances the charge of the judge, if founded in law, was the exact charge which the case required as fair to both -parties. The proposition requested by the appellant might have been, and no doubt was, a correct legal proposition —as an independent statement; but if the judge had simply charged that proposition, and stopped, it might have misled the jury to the prejudice of the respondent. We think, therefore, that there was no error on the part of the [553] judge in the response which he made to appellant’s request, if it be that the principle which he laid down -was correct. Was it correct? “Where there are interfering claims to land without any actual possession of the disputed parcel, the rule of law is that the possession shall be adjudged to him who has the right.” Sims v. Meacham, 2 Bail. 101. “ Where there are two possessions in the same body of land — one under a senior and another under a junior grant — the senior title will prevail.” Alston v. Collins, 2 Spears 459. Other authorities might be added, but these are sufficient. They fully sustain the charge as to this point. The charge given to the jury — that, in fixing the location of the land in dispute, marks and trees should control courses and distance — is also made a ground of exception. In locating lands the following rules are resorted to, and generally in the order stated : 1. Natural boundaries. 2. Artificial marks. 3. Adjacent boundaries; and, 4. Courses and distance. Fullward v. Graham, 1 Rich. 491. See, also, the cases of Bradford v. Pitts, 2 Mills’ Const. R. 115; Starke v. Johnson, 2 McC. 9. These cases vindicate this last ruling of the presiding judge. Several other questions were discussed in the argument, but these were not found in the exceptions, and we have not felt called upon to review them; and, besides, some of them were questions of fact; with these we have nothing to do. In a case like this, the province of this court is to correct errors of law; therefore we have confined ourselves to the legal questions raised. We think the declarations of William Black and of his sister, as detailed by the witness Mary Brown, were inadmissible, as hearsay, and, according to strict rule, they might have been excluded, but they do not seem to have been very material, and their exclusion could not have changed the result. The appeal is dismissed. McIver and McGowan, A. J.’s, concurred.