Garrett v. Weinberg

The opinion of the Court was delivered by Mr. Justice Gary. This action was commenced in January, 1893, for partition of real estate, and has heretofore been before this Court on a question of demurrer. The demurrer was overruled, and the defendants filed their answers setting up the defenses hereinafter mentioned. The case was tried before Judge Watts and a jury, at the October, 1895, term of the Circuit Court for Sumter County, and resulted in a judgment for defendants, from which plaintiffs have appealed to this Court. Thomas Garrett died in 1865, leaving as his heirs at law his widow, Elizabeth Garrett, now Elizabeth Moore, his son, the plaintiff, John A. Garrett, his daughter, the plaintiff, Harriet D. Singletary, and his daughters, Mary Pritchard, Ellen DeLoach, and Mariah Norton. Mary Pritchard, Ellen DeLoach, and Mariah Norton have since died intestate. Mary Pritchard left no husband or lineal descendant surviving her. Ellen DeLoach left, as her only heir at law surviving her, her grand-daughter, the plaintiff, Louisa [38] Rushing, and being under the age of twenty-one years, her husband, Jacob Rushing, has been appointed her guardian ad litem by the clerk of the court, to prosecute this action in her behalf. Mariah Norton left surviving her, as her only heirs at law, John Norton, Davis Norton, George Norton, Mary Norton, Anna Norton, and Charles Norton. The following statement is set out in The “Case:” The plaintiffs introduced testimony to prove the following facts, to wit: That Thomas Garrett, their ancestor, was at the time of his death, in 1865, seized in fee and possessed of the land in question; that the plaintiffs were his heirs at law, and entitled to the interests in the lands as alleged in the complaint; that the defendants were each in possession of a part of the land, and plaintiffs claimed that defendants derived title to the land from the same source, to wit: from the said Thomas Garrett. Upon due notice, the defendants having failed to produce the original deed, an office copy of deed (with plat attached) of Elizabeth Moore and John S. Moore to Edwin W. Moise was introduced in evidence by plaintiffs as a part of their testimony in chief, and, upon due notice, the defendants produced the original of five other deeds, the execution of which were admitted and were offered in evidence by the plaintiffs. The following is a description of the deeds: 1. The deed of-John S. Moore and Elizabeth Moore to Edwin W. Moise, which will be set out in the report of- the case. 2. Also deed of Edwin W. Moise to Marion Moise, dated 14th day of June, 1876, and was recorded July 14th, A. D. 1876; consideration $1,200; conveyed the 502 acres in question, also 52 acres near city of Sumter; being in usual form and with usual covenant of general warranty. 3. Also deed of Marion Moise to Jared M. Chavis, dated 21st day of May, 1882, consideration $587; conveys 116J acres of the land in question; deed in the usual form, with covenant of general warranty. 4. Also deed of Jared M. Chavis to Rosa Weinberg, dated October 21st, 1886, and was recorded on the 21st October, 1886; consideration $590; conveys the same 116|- acres above [39] described in usual form, with covenant of general warranty. 5. Also deed of Marion Moise to Rosa Weinberg, dated 14th January, 1887, recorded on the 15th January, 1887; consideration $233; conveys 52 acres of the land in question, with usual form and contains covenant of general warranty. 6. Also deed of Marion Moise to William R. Osteen, dated October 16th, 1889, recorded on the 17th day of October, 1889; consideration $2,000; conveys 369-J acres of the land in question; deed in usual form, with covenant of general warranty. Upon close of plaintiffs’ testimony, the defendants moved for a nonsuit on the ground that plaintiffs had failed to prove any title in themselves to the interest in the land which they claimed. The Judge refused the motion for a nonsuit, stating: aI have my reasons about the matter, and I must say I think it improper for me to grant a nonsuit; I will allow it to go to the jury, and let them settle it.” The defendants introduced testimony to prove that E. W. Moise entered intered into possession of the entire tract under and at the date of the deed of John S. Moore and Elizabeth Moore to E. W. Moise, and held adverse possession thereof until he conveyed the entire traet to Marion Moise on the 14th day of June, 1876; that Marion Moise entered into the possession of the entire tract at the date of the conveyance thereof to him by E. W. Moise, and held adverse possession thereof until he conveyed, first, a portion thereof to Jared M. Chavis, by his deed above stated, who afterwards conveyed the same to Rosa Weinberg, by his deed to her of the date as above stated, and the remainder of the entire tract to William R. Osteen, by his deed of date as above stated; and that said Jared M. Chavis held the portion so conveyed to him until the date of his deed to Mrs. Rosa Weinberg, as above stated, and that Mrs. Rosa Weinberg and William R. Osteen held adverse possession of the portions purchased by them from the date of their respective deeds until the commencement of this action. The plaintiff, J. A. Garrett, testified that he had never con [40] veyed his interest in this land to any one. This answer and the question leading thereto were objected to on the ground that it was incompetent for him to so testify, under the facts of the case. Objection overruled, and exception taken by defendants on the ground that- it was incompetent. It was also established by the plaintiffs, and not contradicted by the defendants, that when E. W. Moise took conveyance from Elizabeth Moore, all the heirs at law of Thomas Garrett were twenty-one years of age; that in January, 1876, his daughter, Ellen DeEoach, an heir to his estate, died, leaving as her only heir at law her grand-child, the plaintiff, Louisa Rushing, who was then a minor, having been born about January, 1873, and was still a minor at the commencement of this action. It was also established that Mariah Norton, another of the heirs at law of Thomas Garrett,, died in 1886, leaving minor heirs, their names and ages being as follows, being plaintiffs in this action, to wit: John Norton was born 14th September, 1856; Davis Norton was born October 4th, 1861; George Norton was born November 26th, 1862; Mary Norton was born March 8th, 1865; Anna Norton was born September 4th, 1868; Charles Norton was-born October 7th, 1871. It was also shown that at the time of the conveyance of Mrs. Moore to E. W. Moise, in 1871, two of the heirs at law of Thomas Garrett were married women, to wit: Mariah Norton and the plaintiff, Harriet Singletary, and that they continued under coverture until the deaths of their husbands, to wit: the husband-of Mrs. Singletary died in 1884, and the husband of Mrs. Norton died in 1876. The plaintiffs presented to the Judge certain requests to charge, which will be incorporated in the report of the case. The defendants also presented certain requests to charge, which will be set out in the report of the case (except those which were withdrawn), together with his Honor’s charge and appellant’s exceptions. His Honor refused a motion for a new trial. The plaintiffs claim that the deed to E. W. Moise, while [41] purporting to convey the whole, only conveyed the interests of Elizabeth Moore, the widow of Thomas Garrett, being one-third of the premises, and they seek to ignore the sale by John S. Moore, or any rights thereunder. The defendants denied that the plaintiffs, or their ancestor, Thomas Garrett, ever had title to the premises or any part thereof. The defendants claimed the premises under a chain of title, and set up the adverse possession of themselves and those under whom they claim for more than twenty years next before the commencement of said action under said chain of title, and plead the statute of limitations. The defendants claimed, as a matter of law, that Harriet D. Singletary and John A. Garrett, having had a right of action to recover their interest, if any they had, in the premises described in the complaint for more than twenty years before the commencement of said action, and having labored under no disability, are presumed to have executed deeds to their interests in the premises unto E. W. Moise in 1871. And that as the right of action accrued to the heirs at law of Thomas Garrett in 1871, when the deed of John S. and Elizabeth Moore was executed and recorded, and possession thereunder taken, the statute of limitations commenced to run, and that its operation was not suspended by the subsequent disabilities, by reason of the death of Ellen DeEoach in 1876, and of Mariah Norton in 1886. The defendants nowhere claimed that, as against the minor heirs now suing, a deed should be presumed under the common law doctrine of presumptions which they invoked against John A. Garrett and Harriet D. Singletary, but they did claim that, under section 102 of the Code, a complete adverse title should be deemed or presumed against all parties plaintiff. [41] We will not consider the exceptions seriatim, but will first consider the question of ouster. The deed of conveyance from John S. Moore and Elizabeth Moore to Edwin W. Moise was executed in 1871, and purports to convey unto the said Edwin W. Moise, his heirs and assigns, all the plantation or tract of land described in the coni [42] plaint. The covenants of warranty are in the usual form. There is nothing upon the face of the deed itself indicating that anything less than the fee to all the land was attempted to be conveyed. It is, however, contended that the certificates accompanying the deed of conveyance, to the effect that Mrs. Elizabeth Moore had renounced her right of dower and of inheritance as an heir at law of her former husband, Thomas Garrett, in said premises, show that the intention was to Gonvey only the interest of Mrs. Elizabeth Moore in the said premises. The certificates aforesaid cannot have the effect of contradicting the plain and express words of the deed. The certificates are to be regarded as intending to make certain the effect of the deed, rather than as a limitation upon its provisions. Appellants’ counsel conceded, and very properly, that if the deed which was recorded should be construed as a conveyance of all the land, and Edwin W. Moise entered into possession thereunder, without recognizing any other claim, then such entry would constitute ouster. 2 We next proceed to a consideration of the questions raised by the exceptions in regard to the presumption of a deed arising from lapse of time. It is not necessaty to do more than to refer to Massey v. Adams, 3 S. C., 254, and the cases therein cited, to show that the common law presumption of a deed, arising from adverse possession, cannot prevail against an infant, unless such possession continued for a period of twenty years, exclusive of the time when the disability of infancy existed. When adults and infants are tenants in common of land, the fact that the presumption of a deed cannot prevail against the infants because of such disabilty cannot be interposed by the other tenants in common. Boykin v. Ancrum, 28 S. C., 486. The appellants was, upon request, granted permission to argue against the principles announced in said case, in so far as they relate to the question under consideration in this case. We deem it only necessary to say that, after careful consideration, this Court [43] adheres to the principles announced in that case. The objection, that the presumption of a deed cannot prevail against the infants, is personal to the infants, and they alone have the right to any benefit from such objection. 3 It does not appear when Harriet D. Singletary and Mariah Norton were married. If they were married prior to the adoption of the Constitution of 1868, then the husbands acquired such vested interests in the real estate of their respective wives'as gave them the right to possession of said real estate and to the rents, issues, and profits therefrom, during coverture. Bouknight v. Epting, 11 S. C , 71. They could not have been deprived of these rights even by the Constitution of 1868. If the said Harriet D. Singletary and Mariah Norton were married before the adoption of the Constitution of 1868, then they did not have the right to the possession of their real estate, nor to the rents, issues, and profits therefrom, until the death of their respective husbands. Their cause of action did not arise until they had the right to bring action to recover the possession of said land or for the rents and profits therefrom, to wit: the death of their respective husbands. Suber v. Chandler, 18 S. C., 526. Under such circumstances, time in favor of the presumption of a deed would not commence to run until the death of the husband. A contrary rule would work injustice and oppression. 4 We will next consider the questions touching the statute of limitations. We do not deem it necessary to trace the interesting history of our statute of limitations, set forth in the arguments of counsel, as, in 1870, when the Code was ■adopted, they were materially changed. The sections in the Code of 1870, which affect this case, are as follows: Section 98. “No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appears that the plaintiff, his ancestor, predecessor or grantor, was seized or pos-. sessed of the premises in question within ten years before the commencement of such action.” Section 101. “In every [44] action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to be possessed thereof within the time required by law, and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that said premises have been held and possessed, adversely to said legal title, for ten years before the commencement of such action.” Section 102. “Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent Court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim for ten years, the premises so included shall be deemed to have been held adversely; excpt that where the premises so included consists of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.” Section 103 provides what is necessary to constitute an adverse possession by a person claiming title founded upon a written instrument or a judgment or decree. Section 104. “Where it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied and no other shall be deemed to have been held adversely.” Section 105 provides what shall constitute an adverse possession by a person claiming a title not founded upon a written instrument or a judgment or decree. Section 108. “If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the same be, at the same time such title first descend or accrue, either within [45] the age of twenty-one years, etc. The time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced or entry or defense made after the period of ten years, and within ten years after the disability shall cease or after the death of the person entitled, who shall die under such disability; but such action shall not be commenced, or' entry or defense made after that period. Section 109 provides that no action shall be commenced for the recovery of real property against a person in possession under claim of title by virtue of a written instrument, unless the person claiming, his ancestor or grantor, was in actual possession of the whole or a part, within forty years from the commencement of such action. And that the possession of a defendant, sole or connected, “shall be deemed valid after the lapse of said period.” The foregoing sections of the Code provided for twenty years in 1870, but were amended- to ten years in 1873, otherwise .they are identical. The sections of the Code hereinbefore mentioned have in a number of cases received judicial construction, and there are principles which may be regarded as well settled by the authorities. Neither Edwin W. Moise nor any of those holding title under him held the premises or any part thereof for ten years before the commencement of this action, and, therefore, if they were not the rightful owners or entitled to the possession of said land, the entry of each of them was a new trespass. The possession of the defendants and of those from whom they claim, cannot be united so that the premises shall be deemed to have been held adversely for the statutory period. In other words, they cannot tack their possession to that of those from whom they claim, so as to sustain a title.by adverse possession. Johnson v. Cobb, 29 S. C., 372; Boykin v. Ancrum, 28 S. C., 489; Ellen v. Ellen, 16 S. C., 132; Congdon v. Morgan, 14 S. C., 596; Pegues v. Warley, 14 S. C., 180. In January, 1876. Ellen DeLoach died, [46] leaving, as her only heir at law, her grand-child, Louisa Rushing, then a minor, as she was born in January, 1873. Marion Moise received a conveyance from Edwin W. Moise and entered into possession on the 14th of June, 1876. If Edwin W. Moise was not the owner or entitled to the possession of the premises, then the entry of Marion Moise was a new trespass. At that time Louisa Rushing was an infant; the cause of action then accrued to her. In such case her rights come within the express protection afforded by the statute. Sec. 108 of the Code. Mrs. Mariah Norton died in 1886, leaving certain heirs at law, then infants, and any causes of action that might have accrued to them thereafter by reason of subsequent new trespasses would also be protected by the statute. The respondent’s attorneys argue very strenuously that the rule is not now as we have hereinbefore stated, because of the innovation made upon the law of this State when the Code was adopted in 1870. When the sections of the Code relating to the statute of limitations are analyzed, it will be seen that they do not sustain the views which the respondent’s attorneys present to the Court as to uniting or tacking the possession of the occupants and those under whom they claim, so as to be deemed an adverse holding. A glance at the different sections aforesaid shows that when' it is intended to describe the different possessions, whether of the plaintiff, his ancestor, predecessor or grantor, “continued,” “sole or connected,” apt and plain words are used for that purpose. It cannot be contended for a moment that there are any words in section 101 relating to the uniting or tacking of different possessions so as to be deemed an adverse holding. The only word referring to the manner in which the premises have to be possessed is “adversely.” The main object of section 102 was that all the premises described in the written instrument, under the circumstances therein mentioned, should be deemed to have been held adversely, although only a part of the premises had been occupied. [47] The only word mentioned in this section • in any manner relating to tacking of possessions is “continued.” If it had been intended to allow ■ tacking, the appropriate words would have been “sole” or “connected.” “Continued” was the appropriate word to show that the occupation must not have been less than ten years at one time, and less than ten years at another time, by the same person, although the two periods of time aggregate more than ten years. Section 103 shows that the requisites for constituting an adverse possession are very different from those mentioned in 105, when the possession cannot be referred to a written instrument. The main object of section 104 was to require actual possession of all the premises claimed to have been held adversely, when the entry was not made under a written instrument. Section 108 contains no provision in regard to tacking possessions. Section 109 does provide for tacking under the circumstances therein mentioned, and uses the words “sole or connected.” This section has no hearing in any other respect upon the case before us. There was, therefore, error in the charge of the presiding Judge. The cases of Hill v. Sanders, 4 Rich., 521, and McGee v. Hall, 26 S. C., 179, show that the general principle is, that the minority of a tenant in common will protect the interests of the other tenants in common from the operation of the statute of limitations. There is no statute in this State changing the rule laid down in those cases. We refer to the case of Hill v. Sanders, supra, for a statement of the principles upon which this rule of property is founded, where it is also stated why this rule does not apply when the disability of an infant tenant in common is urged by an adult tenant in common against the presumption arising from the lapse of time. Statute of limitations and presumptions arising from lapse of time are very different in their natures, and we see no reason, why they both may not exist at the same time, even when the statute prescribes twenty years as the time necessary to sustain the defense of adverse possession. Wadsworthville v. McCully, 11 Rich., [48] 430; Trustees v. Jennings, 40 S. C., 183. These views practically dispose of all the questions raised by the exceptions. The charge of the presiding Judge, in so far as it was erroneous as to John A. Garrett, was harmless error. It is the judgment of this Court, that the judgment of the Circuit Court be reversed, except as to John A. Garrett, and the case remanded for a new trial.