•The opinion ini ¡this case was filed on May 2, but remittitur held up on petition for rehearing until
The opinion of the Court was delivered 'by
Mr, Chibo? Justice Gary.
This is am action by the administrator, of the estate of John H. Oathcart, deceased, to recover rents and profits; for the use of a certain storehouse and lot in Winnsboro.
The defendant denied that the legal title was in John H. Cathcart, and pleaded 'tíre presumption of a grant, and adverse possession.
It 'appears from the testimony, ¡that Richard Cathcart became feeble ini mind; about the year 1865, and that he executed a power of attorney, whereby he empowered John H. Cathcart, to1 sell ail the land's; of which' he was then seized.
In pursuance of said power of attorney, the lot described in the complaint, was conveyed to Margaret J. Shaw, on the second day of November, 1867; and, on the same day, she executed an instrument of writing, under her hand and seal, and in the presence of two witnesses; in which she made this declaration: “I hereby acknowledige that, I hold the real estate conveyed to me this day, for a full and valuable consideration, paid by John H. Oathcart, subject to such uses as
.John H. Cathcart may direct; hereby binding myself, to make such conveyances, as John.' H. Cathoaart may at any time require of me.”
On the twenty-second' day of June, 1874, the said Margar ret J. Shaw, conveyed to Elizabeth Cathcart; and, on or about the 16th of October, 1884, Elizabeth Cathcart conveyed to the defendant, John P. Matthews.
All the deeds of conveyance were duly recorded, but the declaration of trust, was not placed on record.
Under proceedings in the probate court, John H. Cathcart was adjudged
non compos mentis,
and sent to the hospital for the insane, on the 25th of June, 1874.
In May, 1875, he was discharged therefrom, and upon his petition, the commission in lunacy was superseded and set aside, by an order of the probate court.
During the year 1883, he was again adjudged a lunatic, and sent to the hospital for the insane, where he remained until his death in 1908.
At the close of the testimony, the defendant’s attorneys made a motion for tine direction of a verdict, upon the ground, “that the evidence shows, that the legal title was not ini plaintiff’s intestate, at the time title was made to the defendant.”
1
After hearing the motion; his Honor ruled as follows: “The Court has determined, that there is no evidence to go to the jury here, to support the allegations of the complaint, of legal title to the land in question, in plaintiff’s intestate, at the time of the conveyance to the defendant, and, therefore, has determined to' direct the verdict of the jury, for the defendant.”
We have quoted the language of the motion, and of the ruling of his Honor, the presiding Judge, in order to show the exact ground, upon which the verdict was directed.
There are two reasons why there was error, -in directing the jury to render a verdict in favor of the defendant. In the first place, there was testimony fending to; show, that
Joto H. Catooart oom'meuced toi exercise acts of ownership, and to hold possession of toe land, openly and adversely to toe rights of his trustee, Margaret J. Shaw, prior to' toe adoption of the Code of Procedure on the first of March, 1870, when the time necessary, to acquire 'title by adverse possession was changed from ten 'to1 twenty years; and that he held continuously, openly and adversely, until he was adjudged to he of unsound mind, and was sent to> toe hospital for toe insane in 1883—'long enough to' acquire title by adverse possession, which is “not only a shield of defense, but is capable of being asserted actively.”
Duren
v.
Key,
50 S. C. 444, 27 S. E. 875.
Ini the second place, the complaint contains these allegations: That John PI. Cathcart took possession of the said bouse and lot, on the 2d day of November, 1867, and continued in uninterrupted ownership' thereof, until toe day of his death, in 1908.
That on the day of , 1884, while the said John IT. Cathcart, was confined to toe hospital for the insane, the said John P. Matthews entered upon the premises of the said John H. Cathcart and began to use toe bouse and lot for the purpose of carrying on a mercantile business.
That the defendant knew, when he entered upon and began to use toe premises, that he was entering upon and using the premises of the said John IT. Cathcart, and that they had been in toe possession, and under toe control of the said John IT. Catocart, from the 2d! day of November, 1867, up to toe very day upon which, toe said) John P. Matthews entered) upon said1 premises.
3
It will be 'observed, that toe complaint, not only alleges that John IT. Catocart was toe owner of toe land, but that he was in poissession, and that this possession had been invaded by acts of trespass, on the part of the defendant.
There was testimony tending to' prove these allegations, but it was only necessary for toe plaintiff to introduce testi
many, tending to show that John H. 'Cathcart was in possession of the premises, and that the defendant invaded this possession, 'by acts of trespass, in order to cast upon him', 'the burden of -proving, that he bad a better title than the plaintiff'’s intestate.
The rule is thus stated 'by Mr. Justice Woods, in the case of
Investment Co.
v.
Lumber
Co., 86 S. C. 358, 68 S. E. 637, 30 L. R. A. (N. S.) 243n: “The important question is thus raised, whether a plaintiff alleging both title and pos..sessioo, is entitled to recover damages, upon proof of bis possession, and the invasion of it by the defendant, without proving also, that he had a perfect title. The question must be answered in the affirmative. One person who finds another, in possession of land can not by seizing the possession or invading it, put him whose possession he seized or Invaded, to proof of his title. In sudh a case possession is
prima facie
evidence of title, and he who invades it, must establish his title. If this were not so, a bolder of land could be put to proof of title against the world, by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession, this gives character to the action, as- one in tibe nature of- the old action, of
trespass .quare clausum fregit.”
In the case of
Turner
v.
Poston,
63 S. C. 244, 41 S. E. 296, the Court uses this language: “The right of possession is a very sacred one, and the Court will not allow the repose which it gives1, to be endangered, by giving improper advantages to a trespasser. If defendant had a good title, he should have re-sorted to- tihe Courts, when he could have 'obtained -any redress1, to Which, by law, he was entitled.”
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•The opinion ini ¡this case was filed on May 2, but remittitur held up on petition for rehearing until
The opinion of the Court was delivered 'by
Mr, Chibo? Justice Gary.
This is am action by the administrator, of the estate of John H. Oathcart, deceased, to recover rents and profits; for the use of a certain storehouse and lot in Winnsboro.
The defendant denied that the legal title was in John H. Cathcart, and pleaded 'tíre presumption of a grant, and adverse possession.
It 'appears from the testimony, ¡that Richard Cathcart became feeble ini mind; about the year 1865, and that he executed a power of attorney, whereby he empowered John H. Cathcart, to1 sell ail the land's; of which' he was then seized.
In pursuance of said power of attorney, the lot described in the complaint, was conveyed to Margaret J. Shaw, on the second day of November, 1867; and, on the same day, she executed an instrument of writing, under her hand and seal, and in the presence of two witnesses; in which she made this declaration: “I hereby acknowledige that, I hold the real estate conveyed to me this day, for a full and valuable consideration, paid by John H. Oathcart, subject to such uses as
.John H. Cathcart may direct; hereby binding myself, to make such conveyances, as John.' H. Cathoaart may at any time require of me.”
On the twenty-second' day of June, 1874, the said Margar ret J. Shaw, conveyed to Elizabeth Cathcart; and, on or about the 16th of October, 1884, Elizabeth Cathcart conveyed to the defendant, John P. Matthews.
All the deeds of conveyance were duly recorded, but the declaration of trust, was not placed on record.
Under proceedings in the probate court, John H. Cathcart was adjudged
non compos mentis,
and sent to the hospital for the insane, on the 25th of June, 1874.
In May, 1875, he was discharged therefrom, and upon his petition, the commission in lunacy was superseded and set aside, by an order of the probate court.
During the year 1883, he was again adjudged a lunatic, and sent to the hospital for the insane, where he remained until his death in 1908.
At the close of the testimony, the defendant’s attorneys made a motion for tine direction of a verdict, upon the ground, “that the evidence shows, that the legal title was not ini plaintiff’s intestate, at the time title was made to the defendant.”
1
After hearing the motion; his Honor ruled as follows: “The Court has determined, that there is no evidence to go to the jury here, to support the allegations of the complaint, of legal title to the land in question, in plaintiff’s intestate, at the time of the conveyance to the defendant, and, therefore, has determined to' direct the verdict of the jury, for the defendant.”
We have quoted the language of the motion, and of the ruling of his Honor, the presiding Judge, in order to show the exact ground, upon which the verdict was directed.
There are two reasons why there was error, -in directing the jury to render a verdict in favor of the defendant. In the first place, there was testimony fending to; show, that
Joto H. Catooart oom'meuced toi exercise acts of ownership, and to hold possession of toe land, openly and adversely to toe rights of his trustee, Margaret J. Shaw, prior to' toe adoption of the Code of Procedure on the first of March, 1870, when the time necessary, to acquire 'title by adverse possession was changed from ten 'to1 twenty years; and that he held continuously, openly and adversely, until he was adjudged to he of unsound mind, and was sent to> toe hospital for toe insane in 1883—'long enough to' acquire title by adverse possession, which is “not only a shield of defense, but is capable of being asserted actively.”
Duren
v.
Key,
50 S. C. 444, 27 S. E. 875.
Ini the second place, the complaint contains these allegations: That John PI. Cathcart took possession of the said bouse and lot, on the 2d day of November, 1867, and continued in uninterrupted ownership' thereof, until toe day of his death, in 1908.
That on the day of , 1884, while the said John IT. Cathcart, was confined to toe hospital for the insane, the said John P. Matthews entered upon the premises of the said John H. Cathcart and began to use toe bouse and lot for the purpose of carrying on a mercantile business.
That the defendant knew, when he entered upon and began to use toe premises, that he was entering upon and using the premises of the said John IT. Cathcart, and that they had been in toe possession, and under toe control of the said John IT. Catocart, from the 2d! day of November, 1867, up to toe very day upon which, toe said) John P. Matthews entered) upon said1 premises.
3
It will be 'observed, that toe complaint, not only alleges that John IT. Catocart was toe owner of toe land, but that he was in poissession, and that this possession had been invaded by acts of trespass, on the part of the defendant.
There was testimony tending to' prove these allegations, but it was only necessary for toe plaintiff to introduce testi
many, tending to show that John H. 'Cathcart was in possession of the premises, and that the defendant invaded this possession, 'by acts of trespass, in order to cast upon him', 'the burden of -proving, that he bad a better title than the plaintiff'’s intestate.
The rule is thus stated 'by Mr. Justice Woods, in the case of
Investment Co.
v.
Lumber
Co., 86 S. C. 358, 68 S. E. 637, 30 L. R. A. (N. S.) 243n: “The important question is thus raised, whether a plaintiff alleging both title and pos..sessioo, is entitled to recover damages, upon proof of bis possession, and the invasion of it by the defendant, without proving also, that he had a perfect title. The question must be answered in the affirmative. One person who finds another, in possession of land can not by seizing the possession or invading it, put him whose possession he seized or Invaded, to proof of his title. In sudh a case possession is
prima facie
evidence of title, and he who invades it, must establish his title. If this were not so, a bolder of land could be put to proof of title against the world, by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession, this gives character to the action, as- one in tibe nature of- the old action, of
trespass .quare clausum fregit.”
In the case of
Turner
v.
Poston,
63 S. C. 244, 41 S. E. 296, the Court uses this language: “The right of possession is a very sacred one, and the Court will not allow the repose which it gives1, to be endangered, by giving improper advantages to a trespasser. If defendant had a good title, he should have re-sorted to- tihe Courts, when he could have 'obtained -any redress1, to Which, by law, he was entitled.”
We do not deem1 it necessary, to cite other authorities to show, that tihe testimony adduced by the plaintiff, cast upon the 'defendant the burden of proving his title.
Judgment reversed and new trial granted
Mr. Justice ITydrick
concurs in the result.